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DEPARTMENT OF EDUCATION text format. Please do not submit the recipients understand their legal PDF in a scanned format. Using a print- obligations including what conduct is 34 CFR Part 106 to-PDF format allows the U.S. actionable as sexual harassment under [Docket ID ED–2018–OCR–0064] Department of Education (the Title IX, the conditions that activate a Department) to electronically search and mandatory response by the recipient, RIN 1870–AA14 copy certain portions of your and particular requirements that such a submissions. response must meet so that recipients Nondiscrimination on the Basis of Sex D Federal eRulemaking Portal: Go to protect the rights of their students to in Education Programs or Activities www.regulations.gov to submit your access education free from sex Receiving Federal Financial comments electronically. Information discrimination. Assistance on using Regulations.gov, including In addition to providing recipients AGENCY: Office for Civil Rights, instructions for finding a rule on the site with clear legal obligations, the Department of Education. and submitting comments, is available transparency of the proposed ACTION: Notice of proposed rulemaking. on the site under ‘‘How to use regulations will help empower students Regulations.gov’’ in the Help section. to hold their schools accountable for SUMMARY: The Secretary of Education D Postal Mail, Commercial Delivery, failure to meet those obligations. Under proposes to amend regulations or Hand Delivery: The Department the proposed regulations, complainants implementing Title IX of the Education strongly encourages commenters to reporting sexual harassment will have Amendments of 1972 (Title IX). The submit their comments electronically. If, greater control over the process. The proposed regulations would clarify and however, you mail or deliver your Department recognizes that every modify Title IX regulatory requirements comments about these proposed situation is unique and that individuals pertaining to the availability of remedies regulations, address them to Brittany react to sexual harassment differently; for violations, the effect of Bull, U.S. Department of Education, 400 thus, the proposed regulations help Constitutional protections, the Maryland Avenue SW, Room 6E310, ensure that schools provide designation of a coordinator to address Washington, DC 20202. Telephone: complainants with clear options and sex discrimination issues, the (202) 453–7100. honor the wishes of the reporting dissemination of a nondiscrimination Privacy Note: The Department’s policy is individual about how to respond to the policy, the adoption of grievance to make all comments received from situation, including increased access to procedures, and the process to claim a members of the public available for public supportive measures. Where a reporting religious exemption. The proposed viewing in their entirety on the Federal complainant elects to file a formal regulations would also specify how eRulemaking Portal at www.regulations.gov. complaint triggering the school’s recipient schools and institutions Therefore, commenters should be careful to grievance process, the proposed include in their comments only information covered by Title IX (hereinafter that they wish to make publicly available. regulations require the school’s collectively referred to as recipients or investigation to be fair and impartial, schools) must respond to incidents of FOR FURTHER INFORMATION CONTACT: applying mandatory procedural checks sexual harassment consistent with Title Brittany Bull, U.S. Department of and balances, thus producing more IX’s prohibition against sex Education, 400 Maryland Avenue SW, reliable factual outcomes, with the goal discrimination. The proposed Room 6E310, Washington, DC 20202. of encouraging more students to turn to regulations are intended to promote the Telephone: (202) 453–7100. You may their schools for support in the wake of purpose of Title IX by requiring also email your questions to sexual harassment. recipients to address sexual harassment, [email protected], but, as described above, comments must be submitted via Summary of the Major Provisions of assisting and protecting victims of This Regulatory Action sexual harassment and ensuring that the Federal eRulemaking Portal, postal due process protections are in place for mail, commercial delivery, or hand With regard to sexual harassment, the individuals accused of sexual delivery. proposed regulations would: harassment. If you use a telecommunications D Define the conduct constituting device for the deaf (TDD) or a text sexual harassment for Title IX purposes; DATES: We must receive your comments telephone (TTY), call the Federal Relay D Specify the conditions that activate on or before January 28, 2019. Service (FRS), toll free, at 1–800–877– a recipient’s obligation to respond to ADDRESSES: Submit your comments 8339. allegations of sexual harassment and through the Federal eRulemaking Portal impose a general standard for the SUPPLEMENTARY INFORMATION: or via postal mail, commercial delivery, sufficiency of a recipient’s response; or hand delivery. We will not accept Executive Summary D Specify situations that require a comments by fax or by email, or recipient to initiate its grievance Purpose of This Regulatory Action comments submitted after the comment procedures; and period closes. To ensure that we do not Based on its extensive review of the D Establish procedural safeguards that receive duplicate copies, please submit critical issues addressed in this must be incorporated into a recipient’s your comments only once. Additionally, rulemaking, the Department has grievance procedures to ensure a fair please include the Docket ID at the top determined that current regulations and and reliable factual determination when of your comments. guidance do not provide appropriate a recipient investigates and adjudicates If you are submitting comments standards for how recipients must a sexual harassment complaint. electronically, we strongly encourage respond to incidents of sexual In addition, the proposed regulations you to submit any comments or harassment. To address this concern, we would: Clarify that in responding to any attachments in Microsoft Word format. propose regulations addressing sexual claim of sex discrimination under Title If you must submit a comment in Adobe harassment under Title IX to better align IX, recipients are not required to Portable Document Format (PDF), we the Department’s regulations with the deprive an individual of rights that strongly encourage you to convert the text and purpose of Title IX and would be otherwise guaranteed under PDF to ‘‘print-to-PDF’’ format, or to use Supreme Court precedent and other case the U.S. Constitution; prohibit the some other commonly-used searchable law. This will help to ensure that Department’s Office for Civil Rights

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(OCR) from requiring a recipient to pay accommodation or auxiliary aid, please indifferent to it, Gebser v. Lago Vista money damages as a remedy for a contact the person listed under FOR Ind. Sch. Dist., 524 U.S. 274 (1998); and violation of any Title IX regulation; and FURTHER INFORMATION CONTACT. that a school can likewise be liable eliminate the requirement that religious under Title IX based on sexual Background institutions submit a written statement harassment by a student against a to qualify for the Title IX religious Title IX prohibits discrimination on student but only if ‘‘the recipient is exemption. the basis of sex in education programs deliberately indifferent to known acts of and activities that receive federal student-on-student sexual harassment,’’ Costs and Benefits financial assistance. See 20 U.S.C. ‘‘the harasser is under the school’s As further detailed in the Regulatory 1681(a). Existing Title IX regulations disciplinary authority,’’ and ‘‘the Impact Analysis, we estimate that the contain specific provisions regarding (i) behavior is so severe, pervasive, and total monetary cost savings of these the Assistant Secretary’s authority to objectively offensive that it denies its regulations over ten years would be in determine remedies necessary to victims the equal access to education the range of $286.4 million to $367.7 overcome effects of discrimination (34 that Title IX is designed to protect,’’ million. In addition, the major benefits CFR 106.3), (ii) the effect of other Davis v. Monroe Cty. Bd. of Educ., 526 of these proposed regulations, taken as requirements (34 CFR 106.6), (iii) U.S. 629, 647, 652 (1999). a whole, include achieving the designation of a responsible employee In the four decades since HEW issued protective purposes of Title IX via fair, (34 CFR 106.8(a)), (iv) adoption of the 1975 rule, no Title IX regulations reliable procedures that provide grievance procedures (34 CFR 106.8(b)), have been promulgated to address adequate due process protections for (v) dissemination of policy (34 CFR sexual harassment as a form of sex those involved in grievance processes. 106.9), and (vi) exemption for religious discrimination; instead, the Department Invitation to Comment: We invite you schools (34 CFR 106.12). For reasons has addressed this subject through a to submit comments regarding these described in this preamble, the series of guidance documents. See, e.g., proposed regulations and directed Secretary proposes to amend the Title Sexual Harassment Guidance: questions. To ensure that your IX regulations at 34 CFR 106.3, 106.6, Harassment of Students by School comments have the maximum effect on 106.8, 106.9, and 106.12, as well as add Employees, Other Students, or Third developing the final regulations, you new §§ 106.30, 106.44, and 106.45. Parties, 62 FR 12034 (March 13, 1997); should identify clearly the specific The Department’s predecessor, the Revised Sexual Harassment Guidance: section or sections of the proposed Department of Health, Education and Harassment of Students by School regulations that each of your comments Welfare (HEW), promulgated Employees, Other Students, or Third addresses, and arrange your comments implementing regulations under Title IX Parties (January 19, 2001) (2001 in the same order as the proposed effective in 1975.1 Among other things, Guidance); Dear Colleague Letter on regulations. those regulations require recipients to Sexual Harassment (January 25, 2006); We invite you to assist us in create and disseminate a policy of non- Dear Colleague Letter: Sexual Violence complying with the specific discrimination based on sex, designate a (issued April 4, 2011, withdrawn requirements of Executive Orders 12866 Title IX Coordinator, and adopt and September 22, 2017) (2011 Dear and 13563 (explained further below), publish grievance procedures providing Colleague Letter); Questions and and their overall goal of reducing the for prompt and equitable resolution of Answers on Title IX and Sexual regulatory burden that might result from complaints that a school is Violence (issued April 29, 2014, these proposed regulations. Please let us discriminating based on sex. withdrawn September 22, 2017) (2014 know of any further ways that we may When the current regulations were Q&A); Questions and Answers on reduce potential costs or increase issued in 1975, the federal courts had Campus Sexual Misconduct (September potential benefits, while preserving the not yet addressed recipients’ Title IX 22, 2017) (2017 Q&A). The decades effective and efficient administration of obligations to address sexual since the passage of Title IX have the Department’s programs and harassment as a form of sex revealed that how schools address activities. discrimination. The Supreme Court sexual harassment and sexual assault During and after the comment period, subsequently elaborated on the scope of (collectively referred to herein as sexual you may inspect all public comments Title IX, ruling that money damages are harassment) affects the educational about these proposed regulations by available for private actions under Title access and opportunities of large accessing Regulations.gov. You also may IX based on sexual harassment by a numbers of students in elementary, inspect the comments in person at 400 teacher against a student, Franklin v. secondary, and postsecondary schools Maryland Avenue SW, Room 6E310, Gwinnett Cty. Pub. Sch., 503 U.S. 60 across the nation. Washington, DC, between the hours of (1992); that such damages may only be Beginning in mid-2017, the 8:30 a.m. and 4:00 p.m., Eastern Time, recovered under Title IX when a school Department started to examine how Monday through Friday of each week, official with authority to institute schools and colleges were applying Title except federal holidays. Please contact corrective measures has actual notice of IX to sexual harassment under then- the person listed under FOR FURTHER the harassment but is deliberately applicable guidance. The Department INFORMATION CONTACT. conducted listening sessions and Assistance to Individuals with 1 40 FR 24128 (June 4, 1975) (codified at 45 CFR discussions with stakeholders Disabilities in Reviewing the part 86). In 1980, Congress created the United States expressing a variety of positions for and Rulemaking Record: Upon request, we Department of Education. Public Law 96–88, sec. against the status quo, including will provide an appropriate 201, 93 Stat. 669, 671 (1979); Exec. Order No. advocates for survivors of sexual 12212, 45 FR 29557 (May 2, 1980). By operation of accommodation or auxiliary aid to an law, all of HEW’s determinations, rules, and violence; advocates for accused individual with a disability who needs regulations continued in effect and all functions of students; organizations representing assistance to review the comments or HEW’s Office for Civil Rights, with respect to schools and colleges; attorneys other documents in the public educational programs, were transferred to the representing survivors, the accused, and Secretary of Education. 20 U.S.C. 3441(a)(3). The rulemaking record for these proposed regulations implementing Title IX were recodified institutions; Title IX Coordinators and regulations. If you want to schedule an without substantive change in 34 CFR part 106. See other school and college administrators; appointment for this type of 45 FR 30802, 30955–65 (May 9, 1980). child and sex abuse prosecutors;

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scholars and experts in law, psychology, The Department learned that schools options for how schools should and neuroscience; and numerous and colleges were uncertain about structure their grievance processes to individuals who have experienced whether the Department’s guidance was accommodate each school’s unique school-level Title IX proceedings as a or was not legally binding. To the extent pedagogical mission, resources, and complainant or respondent. The that guidance was viewed as mandatory, educational community.6 Department also reviewed information the obligations set forth in previous After personally engaging with that includes white papers, reports, and guidance were issued without the numerous stakeholders including sexual recommendations issued over the past benefit of notice and comment that violence survivors, students accused of several years by legal and public policy would have permitted the public and all campus sexual assault, and school and scholars, civil rights groups, and stakeholders to comment on the college attorneys and administrators, the committees of nonpartisan feasibility and effectiveness of the Secretary of Education delivered a organizations 2 as well as books guidance. Several of the prescriptions speech in September 2017 7 in which detailing case studies of campus Title IX set forth in previous guidance (for she emphasized the importance of Title proceedings.3 example, compulsory use by all schools IX and the high stakes of sexual and colleges of the preponderance of the misconduct. The Secretary identified 2 E.g., Jacob Gersen and Jeannie Suk, The Sex evidence standard and prohibition of problems with the current state of Title Bureaucracy, 104 Calif. L. Rev. 881 (2016); John mediation in Title IX sexual assault IX’s application in schools and colleges, Villasenor, A probabilistic framework for modelling including overly broad definitions of false Title IX ‘convictions’ under the preponderance cases) generated particular criticism and of the evidence standard, 15 Law, Probability and controversy. sexual harassment, lack of notice to the Risk 223, 223–37 (2016), https://doi.org/10.1093/ Other criticisms of the previous parties, lack of consistency regarding lpr/mgw006; Open Letter from Members of the Penn guidance included that those guidance both parties’ right to know the evidence Law School Faculty, Sexual Assault Complaints: documents pressured schools and relied on by the school investigator and Protecting Complainants and the Accused Students at Universities, Wall St. J. Online (Feb. 18, 2015), colleges to forgo robust due process right to cross-examine parties and http://online.wsj.com/public/resources/documents/ protections; 4 captured too wide a range witnesses, and adjudications reached by 2015_0218_upenn.pdf (statement of 16 members of of misconduct, resulting in infringement school administrators operating under a the University of Pennsylvania Law School faculty); on academic freedom and free speech Rethink Harvard’s Sexual Harassment Policy, federal mandate to apply the lowest Boston Globe (Oct. 15, 2014), https:// and government regulation of possible standard of evidence. Secretary www.bostonglobe.com/opinion/2014/10/14/rethink- consensual, noncriminal sexual DeVos stated that in endeavoring to find harvard-sexual-harassment-policy/HFDDiZN7n activity; 5 and removed reasonable a ‘‘better way forward’’ that works for all U2UwuUuWMnqbM/story.html (Statement of 28 members of the Harvard Law School faculty); Am. students, ‘‘non-negotiable principles’’ Bar Assn., ABA Criminal Justice Section Task Force Advances (2017). See also Annie E. Clark and include the right of every survivor to be on College Due Process Rights and Victim Andrea L. Pino, We Believe You: Survivors of taken seriously and the right of every Protections: Recommendations for Colleges and Campus Sexual Assault Speak Out (2016); Jon Krakauer, Missoula: Rape and the Justice System in person accused to know that guilt is not Universities in Resolving Allegations of Campus 8 Sexual Misconduct (2017), https:// a College Town, (2015). predetermined. Quoting an open letter www.americanbar.org/content/dam/aba/ 4 E.g., Open Letter from Members of the Penn Law from law school faculty,9 Secretary publications/criminaljustice/2017/ABA-Due- School Faculty, supra note 2 (‘‘[W]e believe that DeVos affirmed that ‘‘there is nothing OCR’s approach exerts improper pressure upon Process-Task-Force-Recommendations-and- inconsistent with a policy that both Report.authcheckdam.pdf; American College of universities to adopt procedures that do not afford Trial Lawyers, Task Force on the Response of fundamental fairness.’’). See also Bartholet et al., strongly condemns and punishes sexual Universities and Colleges to Allegations of Sexual supra note 2, at 1 (‘‘In the past six years, under misconduct and ensures a fair Violence, White Paper on Campus Sexual Assault pressure from the previous Administration, many adjudicatory process.’’ Investigations (2017), https://www.actl.com/docs/ colleges and universities all over the country have On September 22, 2017, the default-source/default-document-library/position- put in place new rules defining sexual misconduct statements-and-white-papers/task_force_ and new procedures for enforcing them. While the Department rescinded previous allegations_of_sexual_violence_white_paper_ Administration’s goals were to provide better guidance documents that had never had final.pdf; Elizabeth Bartholet, Nancy Gertner, Janet protections for women . . . the new policies and procedures have created problems of their own, Halley & Jeannie Suk Gersen, Fairness For All OCR’s jurisdictional authority); see also Jacob Students Under Title IX (Aug. 21, 2017), http:// many of them attributable to directives coming from [OCR]. Most of these problems involve unfairness Gersen and Jeannie Suk, The Sex Bureaucracy, The nrs.harvard.edu/urn-3:HUL.InstRepos:33789434. Chronicle of Higher Educ. (Jan. 6, 2017) (https:// See also Nedda Black et al., The NCHERM Group, to the accused; some involve unfairness to both www.chronicle.com/article/The-College-Sex- LLC, 2017 NCHERM Group White Paper: Due accuser and accused[.] OCR has an obligation to Bureaucracy/238805) (OCR’s ‘‘broad definition’’ of Process and the Sex Police (2017), https:// address the unfairness that has resulted from its sexual harassment has ‘‘grown to include most www.ncherm.org/wp-content/uploads/2017/04/ previous actions and the related college and voluntary and willing sexual contact’’). See also TNG-Whitepaper-Final-Electronic-Version.pdf; university responses’’). See also Plummer v. Univ. Open Letter from Members of the Penn Law School Sharyn Potter et al., Prevention Innovations of Houston, 860 F.3d 767, 777–78 (5th Cir. 2017) Faculty, supra note 2 (‘‘These cases are likely to Research Ctr., Univ. of New Hampshire, It’s Not Just (Jones, J., dissenting) (The 2011 Dear Colleague involve highly disputed facts, and the ‘he said/she the What but the How: Informing Students about Letter ‘‘was not adopted according to notice-and- said’ conflict is often complicated by the effects of Campus Policies and Resources (2015), https:// comment rulemaking procedures; its extremely alcohol and drugs’’). cola.unh.edu/sites/cola.unh.edu/files/departments/ broad definition of ‘sexual harassment’ has no 6 Prevention%20Innovations%20Research counterpart in federal civil rights case law; and the E.g., Institutional Challenges in Responding to %20Center/White_Paper_87367_for_web.pdf; Dana procedures prescribed for adjudication of sexual Sexual Violence On College Campuses: Testimony Bolger, Gender Violence Costs: Schools’ Financial misconduct are heavily weighted in favor of finding Provided to the Subcomm. on Higher Educ. and Obligations Under Title IX, 125 Yale L. J. 2106 guilt’’). Workforce Training, 114th Cong. 2, 5–6 (2015) (2016), https://www.yalelawjournal.org/feature/ 5 E.g., Kipnis, supra note 3, at 33 (‘‘The reality is (statement of Dana Scaduto, Campus Counsel, gender-violence-costs-schools-financial-obligations- that a set of incomprehensible directives, issued by Dickinson College, discussing the problems with under-title-ix; Katherine K. Baker et al., Title IX and a branch of the federal government, are being attempting to impose one-size-fits-all rules that fail the Preponderance of the Evidence: A White Paper, wielded in wildly idiosyncratic ways, according to to account for the wide diversity of institutions of http://www.feministlawprofessors.com/wp-content/ higher education across the country), https:// the whims and biases of individual Title IX officers _ uploads/2016/11/Title-IX-Preponderance-White- operating with no public scrutiny or accountability. edworkforce.house.gov/uploadedfiles/testimony Paper-signed-11.29.16.pdf (signed by dozens of law Some of them are also all too willing to tread on scaduto.pdf. professors and scholars); Alexandra Brodsky, A academic and creative freedom as they see fit’’). See 7 Betsy DeVos, U.S. Sec’y of Educ., Prepared Rising Tide: Learning About Fair Disciplinary also Gersen and Suk, supra note 2, at 902–03 Remarks on Title IX Enforcement (Sept. 7, 2017), Process from Title IX, 66 J. of Legal Educ. 822 (Asserting that OCR’s guidance requires schools to https://www.ed.gov/news/speeches/secretary-devos- (2017), https://jle.aals.org/cgi/viewcontent.cgi regulate student conduct ‘‘that is not creating a prepared-remarks-title-ix-enforcement. ?article=1517&context=home. hostile environment and therefore is not sexual 8 Id. 3 E.g., K.C. Johnson and Stuart Taylor, Jr., Campus harassment and therefore not sex discrimination’’ 9 Open Letter from Members of the Penn Law Rape Frenzy, (2017); Laura Kipnis, Unwanted and concluding that OCR’s guidance oversteps School Faculty, supra note 2.

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the benefit of the public notice and of sexual harassment,12 and over 200 instruct recipients to take certain steps comment process; 10 left in place the students have filed lawsuits against that, in the Department’s judgment 2001 Guidance that had been subjected colleges and universities alleging their based on extensive interaction with to public notice and comment (though school disciplined them for sexual stakeholders, will foster educational not rulemaking); issued the 2017 Q&A misconduct without providing due environments where all students and as an interim question and answer process protections.13 employees know that every school must document to identify recipients’ The Department recognizes that respond appropriately to sexual obligations under Title IX to address despite well-intentioned efforts by harassment. The proposed regulations sexual harassment as a temporary school districts, colleges and provide that complainants experiencing measure to provide necessary universities, advocacy organizations, sexual harassment may report information while proceeding with the and the Department itself, sexual allegations to their school and expect time-intensive process of notice and harassment continues to present serious their school to respond in a manner that comment rulemaking; and announced problems across the nation’s campuses. is not clearly unreasonable and its intent to promulgate regulations The lack of clear regulatory standards incentivize recipients to give various under Title IX following the rulemaking has contributed to processes that have supportive measures to complainants to requirements of the Administrative not been fair to all parties involved, that restore or preserve the individual’s Procedure Act. The Department has have lacked appropriate procedural equal access to education as a way of continued to hold listening sessions and protections, and that have undermined demonstrating that the recipient’s discussions with stakeholders and confidence in the reliability of the response to the complainant’s report experts since the rescission of the outcomes of investigations of sexual was not deliberately indifferent. previous guidance to inform the harassment allegations. Such The proposed regulations require Department’s proposed Title IX deficiencies harm complainants, schools to investigate and adjudicate regulations including hearing from respondents, and recipients alike. formal complaints of sexual harassment, stakeholders who believe the The framework created under these and to treat complainants and Department should adopt the policies proposed regulations stems from the respondents equally, giving each a embodied in its previous or current Department’s commitment to the rule of meaningful opportunity to participate in guidance. The need to address through law and the Department’s recognition the investigation and requiring the rulemaking the serious subject of how that it has statutory authority under 20 recipient to apply substantive and schools respond to sexual harassment U.S.C. 1682 to issue regulations that procedural safeguards that provide a was well expressed by sixteen law effectuate Title IX’s provisions—to predictable, consistent, impartial school faculty at University of protect all students from sex process for both parties and increase the Pennsylvania Law School: discrimination (here, in the form of likelihood that the recipient will reach sexual harassment) that jeopardizes a determination regarding the Both the legislative process and notice- equal access to education. The proposed respondent’s responsibility based on and-comment rulemaking are transparent, participatory processes that afford the regulations would help ensure that the objective standards and relevant facts opportunity for input from a diversity of obligations imposed on recipients fall and evidence. By separating a viewpoints. That range of views is critical within the scope of the civil rights law recipient’s obligation to respond to each because this area implicates competing that Congress created and, where known report of sexual harassment from values, including privacy, safety, the persuasive, align with relevant case law. the recipient’s obligation to investigate functioning of the academic community, and Thus, the proposed regulations set forth formal complaints of sexual harassment, the integrity of the educational process for clear standards that trigger a recipient’s the proposed regulations give sexual both the victim and the accused, as well as harassment complainants greater the fundamental fairness of the disciplinary obligation to respond to sexual process.... In addition, adherence to a harassment, including defining the confidence to report and expect their rule-of-law standard would have resulted in conduct that rises to the level of Title IX school to respond in a meaningful way, procedures with greater legitimacy and buy- as conduct serious enough to jeopardize while requiring that where a in from the universities subject to the a person’s equal access to the recipient’s complainant also wants a formal resulting rules.11 education program or activity, and investigation to potentially result in While implementing regulations confining a recipient’s Title IX discipline against a respondent, that under Title IX since 1975 have required obligations to sexual harassment of grievance process will be predictable schools to provide for a ‘‘prompt and which it has actual knowledge. and fair to both parties, resulting in a equitable’’ grievance process to resolve Within those clarified standards factually reliable determination about complaints of sex discrimination by the triggering a recipient’s Title IX the complainant’s allegations. school, the Department’s guidance (both obligations, the proposed regulations Significant Proposed Regulations the guidance documents rescinded in 12 Rather than proceeding sequentially, 2017 and the ones remaining) fails to See, e.g., OCR’s website listing currently pending investigations into sex discrimination, we group and discuss the proposed provide the clarity, permanence, and sexual harassment, and sexual violence: https:// amendments under the substantive or prudence of regulation properly www2.ed.gov/about/offices/list/ocr/docs/ procedural issues to which they pertain. informed by public participation in the investigations/open-investigations/index.html. We do not address proposed regulatory full rulemaking process. Under the 13 See KC Johnson, Judge Xinis’ Outrage, Acad. changes that are technical or otherwise system created by the Department’s Wonderland: Comments on the Contemp. Acad. (Apr. 3, 2018), https://academicwonderland.com/ minor in effect. guidance, hundreds of students have 2018/04/03/judge-xinis-outrage/ (over 200 students In discussing the proposed filed complaints with OCR alleging their have sued their colleges over due process issues since the 2011 Dear Colleague Letter); KC Johnson, regulations, we first address how school failed to provide a prompt or recipients must respond to sexual equitable process in response to a report Pomona, the Courts, & Basic Fairness, Acad. Wonderland: Comments on the Contemp. Acad. harassment and the procedures for (Dec. 8, 2017), https://academicwonderland.com/ resolving formal complaints of sexual 10 Specifically, the Department rescinded the 2017/12/08/pomona-the-courts-basic-fairness/ (over 2011 Dear Colleague Letter and the 2014 Q&A. 90 colleges have lost due process challenges by harassment. Under the response 11 Open Letter from Members of the Penn Law respondent students since the 2011 Dear Colleague provisions, we address: Adoption of School Faculty, supra note 2. Letter). standards from Title IX Supreme Court

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precedent and other case law (proposed Current Regulations: None. the Supreme Court in cases assessing §§ 106.44(a) and 106.30); responses liability under Title IX for money A. Adoption of Supreme Court required in specific circumstances and damages in private litigation. The Standards for Sexual Harassment accompanying safe harbors (proposed Department believes that students and § 106.44(b)); emergency removals Section 106.44(a) General; Section institutions would benefit from the (proposed § 106.44(c)); and the use of 106.30 clarity of an essentially uniform administrative leave (proposed Proposed Regulations: We propose standard. More importantly, the § 106.44(d)). We next turn to grievance adding a new § 106.44 covering a Department believes that the Supreme procedures for addressing formal recipient’s response to sexual Court’s foundational decisions in this complaints of sexual harassment harassment. Proposed § 106.44(a) would area, Gebser and Davis, are based on a (proposed § 106.45) including: state that a recipient with actual textual interpretation of Title IX and on Clarification that the recipient’s knowledge of sexual harassment in an policy rationales that the Department finds persuasive for the administrative treatment of both complainant and education program or activity of the context. The Department’s proposed respondent could constitute recipient against a person in the United regulations significantly reflect legal discrimination on the basis of sex States must respond in a manner that is precedent because, while we could have (proposed § 106.45(a)); general not deliberately indifferent. Proposed chosen to regulate in a somewhat requirements for grievance procedures § 106.44(a) would also state that a different manner, we believe that the (proposed § 106.45(b)(1)); notice to the recipient is deliberately indifferent only standards articulated by the Court in parties (proposed § 106.45(b)(2)); and if its response to sexual harassment is these areas are the best interpretation of procedures for investigations (proposed clearly unreasonable in light of the Title IX and that a consistent body of § 106.45(b)(3)). Also within the known circumstances. law will facilitate appropriate grievance procedures section we We propose definitions for ‘‘sexual address evidentiary standards for implementation. harassment’’ and ‘‘actual knowledge’’ in First, the Court has held that Title IX determinations of responsibility § 106.30. The Department defines (proposed § 106.45(b)(4)(i)); the content governs misconduct by recipients, not ‘‘sexual harassment’’ to mean either an by third parties such as teachers and of such written determinations employee of the recipient conditioning (proposed § 106.45(b)(4)(ii)); and the students. As the Court noted in Gebser, the provision of an aid, benefit, or Title IX is a statute ‘‘designed primarily timing of providing the determinations service of the recipient on an to the parties (proposed to prevent recipients of federal financial individual’s participation in unwelcome assistance from using the funds in a § 106.45(b)(4)(iii)). We next address sexual conduct; or unwelcome conduct procedures for appeals of written discriminatory manner.’’ Gebser, 524 on the basis of sex that is so severe, U.S. at 292; Cannon v. Univ. of Chicago, determinations (proposed pervasive, and objectively offensive that § 106.45(b)(5)); informal resolution 414 U.S. 677, 704 (1979) (noting that the it effectively denies a person equal primary congressional purpose behind procedures (proposed § 106.45(b)(6)); access to the recipient’s education and recordkeeping procedures the statutes was ‘‘to avoid the use of program or activity; or sexual assault as federal resources to support (proposed § 106.45(b)(7)). defined in 34 CFR 668.46(a), The proposed regulations also seek to discriminatory practices’’). It is thus a implementing the Jeanne Clery recipient’s own misconduct—not the clarify existing Title IX regulations in Disclosure of Campus Security Policy other areas beyond sexual harassment. actions of employees, students, or other and Campus Crime Statistics Act (Clery third parties—that subjects the recipient Specifically, we state that OCR shall not Act). We define ‘‘actual knowledge’’ as deem necessary the payment of money to liability under Title IX. notice of sexual harassment or Second, because Congress enacted damages to remedy violations under allegations of sexual harassment to a Title IX under its Spending Clause part 106 (proposed § 106.3(a)). We recipient’s Title IX Coordinator or any authority, the obligations it imposes on address the intersection among Title IX official of the recipient who has recipients are in the nature of a contract. regulations, constitutional rights, authority to institute corrective Gebser, 524 U.S. at 286; Davis, 526 U.S. student privacy rights, and Title VII of measures on behalf of the recipient, or at 640. The Court has reasoned that it the Civil Rights Act of 1964 (proposed to a teacher in the elementary and follows from this that recipients must be § 106.6). We clarify the provisions secondary context with regard to on clear notice of what conduct is governing the designation of a Title IX student-on-student harassment. The prohibited and that recipients must be Coordinator (proposed § 106.8). And we proposed definition of ‘‘actual held liable only for conduct over which clarify that a recipient that qualifies for knowledge’’ also states that imputation they have control. Id. at 644–45. the religious exemption under Title IX of knowledge based solely on Third, the text of Title IX prohibits can claim its exemption without seeking respondeat superior or constructive only discrimination that has the effect of written assurance of the exemption from notice is insufficient to constitute actual denying access to the recipient’s the Department (proposed § 106.12). knowledge, that the standard is not met educational program or activities. Id. at I. Recipient’s Response to Sexual when the only official of the recipient 650–52. Accordingly, Title IX does not Harassment with actual knowledge is also the prohibit sex-based misconduct that does respondent, and that the mere ability or not rise to that level of severity. (Proposed § 106.44) obligation to report sexual harassment And finally, the Court reasoned in Statute: Title IX states generally that does not qualify an employee, even if Davis that Title IX must be interpreted no person in the United States shall, on that employee is an official, as one who in a manner that leaves room for the basis of sex, be excluded from has authority to institute corrective flexibility in schools’ disciplinary participation in, be denied the benefits measures on behalf of the recipient. decisions and that does not place courts of, or be subjected to discrimination Reasons: The Department believes in the position of second-guessing the under any education program or activity that the administrative standards disciplinary decisions made by school receiving federal financial assistance, 20 governing recipients’ responses to administrators. Id. at 648. U.S.C. 1681(a), but does not specifically sexual harassment should be generally As a matter of policy, the Department mention sexual harassment. aligned with the standards developed by believes that these same principles

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should govern administrative however, in the elementary and corrective action is not enough to enforcement of Title IX. To that end, the secondary school setting where school establish institutional liability. Title IX proposed regulation would provide that administrators and teachers are more does not sweep so broadly as to permit actual knowledge—rather than mere likely to act in loco parentis, and a suit for harm-inducing conduct that constructive knowledge or imputation exercise a considerable degree of control was not brought to the attention of of knowledge based on a respondeat and supervision over their students, the someone with the authority to stop it.’’) superior theory—triggers the recipient’s Department believes this interpretation (internal citation omitted). duty to respond. Consistent with Title is reasonable. Davis, 526 U.S. at 646, Further, a recipient’s actual IX’s focus on the recipient’s own citing Veronica Sch. Dist. v. Acton, 515 knowledge must be regarding conduct of misconduct and with the contractual U.S. 646, 655 (1995) (noting that a the type proscribed under Title IX. The nature of the duty imposed by Title IX, public school’s power over its students Department intends that the proposed this standard ensures that the recipient is ‘‘custodial and tutelary, permitting a definition of sexual harassment be is on clear notice of the discrimination degree of supervision and control that consistent with the text of Title IX and (or alleged discrimination) that it must could not be exercised over free with the Court’s decisions in Gebser and address. By contrast, as the Court adults’’). Teachers specifically have a Davis. The proposed regulation defines observed in Gebser, a constructive ‘‘degree of familiarity with, and sexual harassment as either an knowledge standard would make a authority over, their students that is employee of the recipient conditioning funding recipient liable for misconduct unparalleled except perhaps in the the provision of an aid, benefit, or of which it was unaware. Gebser, 524 relationship between parent and child.’’ service of the recipient on an U.S. at 287. Further, applying this New Jersey v. T.L.O., 469 U.S. 325, 348 individual’s participation in unwelcome standard in the administrative (1985) (Powell, J., concurring). Thus, the sexual conduct; or unwelcome conduct enforcement context is consistent with Department believes that teachers at on the basis of sex that is so severe, ‘‘Title IX’s express means of elementary and secondary schools pervasive, and objectively offensive that enforcement—by administrative should be considered to have the it effectively denies a person equal agencies—[which] operates on the requisite authority to impart actual access to the recipient’s education assumption of actual notice to officials knowledge to the recipient regarding program or activity; or sexual assault as of the funding recipient.’’ Id. at 288. student-on-student conduct that could defined in 34 CFR 668.46(a) Similarly, proposed § 106.44(a) adopts constitute sexual harassment and to (implementing the Clery Act). In each the Gebser/Davis standard that actual trigger a recipient’s obligations under instance, following the text and purpose knowledge means ‘‘notice of sexual Title IX. Whether in the context of of Title IX, the definition thus seeks to harassment or allegations of sexual elementary and secondary schools, or harassment to an official of the recipient include only sex-based discrimination institutions of higher education, that is sufficiently serious as to who has authority to institute corrective determining who is an official to whom measures on behalf of the recipient.’’ effectively deprive a student of equal notice of sexual harassment gives actual access to a funding recipient’s Consistent with the text and purpose of knowledge to the recipient will be fact- Title IX, this standard ensures that a educational program or activity. specific. Notice to a recipients’ Title IX Institutions of higher education must recipient is liable only for its own Coordinator, however, will always misconduct. As the Court noted in comply with both the Clery Act and confer actual knowledge on the Title IX. Because the purpose of Title IX Gebser and Davis, it is only when the recipient; therefore, every student has a recipient makes an intentional decision is to prohibit a recipient from subjecting clearly designated option for reporting not to respond to third-party individuals to sex discrimination in its sexual harassment to trigger their discrimination that the recipient itself education program or activity, the school’s response obligations. can be said to ‘‘subject’’ its students to definition of sexual harassment under such discrimination. Gebser, 524 U.S. at The definition in proposed § 106.30 Title IX focuses on sexual conduct that 291–92; Davis, 526 U.S. at 642–43. also states that the mere ability or jeopardizes a person’s equal access to an Determining whether someone is an obligation to report sexual harassment education program or activity. Such official with authority to take corrective does not qualify an employee, even if sexual harassment includes conduct action is a fact-specific inquiry. See e.g., that employee is an official, as one who that is also a crime (such as sexual Doe v. Sch. Bd. of Broward Cty., Fla., has authority to institute corrective assault), but Title IX does not focus on 604 F.3d 1248, 1256 (11th Cir. 2010) measures on behalf of the recipient. crimes per se. By contrast, the Clery Act (‘‘we also note that the ultimate Plamp v. Mitchell Sch. Dist. No. 17–2, focuses on particular crimes (stalking, question of who is an appropriate 565 F.3d 450, 459 (8th Cir. 2009) (‘‘After dating violence, domestic violence, person is ‘necessarily a fact-based all, each teacher, counselor, sexual assault) and an institution’s inquiry’ because ‘officials’ roles vary administrator, and support-staffer in a obligation to disclose information and among school districts.’ ’’) (quoting school building has the authority, if not services to victims, and otherwise Murrell v. Sch. Dist. No. 1, Denver, the duty, to report to the school respond, to reports of such crimes. Colo., 186 F.3d 1238, 1247 (10th Cir. administration or school board Although the Clery Act focuses on 1999)). potentially discriminatory conduct. But crimes that may also meet the definition For recipients that are elementary and that authority does not amount to an of ‘‘sexual harassment’’ under the Title secondary schools, with respect to authority to take a corrective measure or IX definition proposed in § 106.30, such student-on-student sexual harassment, institute remedial action within the crimes do not always necessarily meet proposed § 106.30 states that actual meaning of Title IX. Such a holding that definition (for example, where an knowledge can also come from notice to would run contrary to the purposes of incident of stalking is not ‘‘based on a teacher. The Department recognizes the statute’’); see also Santiago v. Puerto sex’’ as required under the Title IX that the Supreme Court has not held Rico, 655 F.3d 61, 75 (1st Cir. 2011) definition of sexual harassment). The definitively that teachers are (‘‘The empty allegation that a school proposed regulations set forth ‘‘appropriate officials with the authority employee ‘failed to report’ harassment definitions and obligations that further to take corrective action’’ with respect to to someone higher up in the chain of the purpose of Title IX with the goal of student-on-student sexual harassment; command who could have taken ensuring that institutions of higher

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education can also comply with their program or activity’’ for purposes of harassment in its education program or Clery Act obligations without conflict or Title IX because ‘‘KSU allegedly devotes activity, it becomes necessary to inconsistency. significant resources to the promotion evaluate the recipient’s response. Proposed § 106.44(a) also reflects the and oversight of fraternities through its Although the Department is not statutory provision that a recipient is websites, rules, and Office of Greek required to adopt the deliberate only responsible for responding to Affairs. Additionally, although the indifference standard articulated by the conduct that occurs within its fraternity is housed off campus, it is Court, we are persuaded by the policy ‘‘education program or activity.’’ See 20 considered a ‘Kansas State University rationales relied on by it and believe it’s U.S.C. 1681(a) (prohibiting a recipient Organization,’ is open only to KSU the best policy approach. As the Court from subjecting persons in the United students, and is directed by a KSU reasoned in Davis, a recipient acts with States to discrimination ‘‘under any instructor. Finally, KSU sanctioned the deliberate indifference only when it education program or activity’’). The alleged assailant for his alcohol use, but responds to sexual harassment in a Title IX statute defines ‘‘program or not for the alleged assault. Presented manner that is ‘‘clearly unreasonable in activity’’ as ‘‘all of the operations of’’ a with these allegations, the Court is light of the known circumstances.’’ recipient. See 20 U.S.C. 1687. An convinced that the fraternity is an Davis, 526 U.S. at 648–49. The ‘‘education program or activity’’ ‘operation’ of the University, and that Department believes this standard holds includes ‘‘any academic, KSU has substantial control over recipients accountable without extracurricular, research, [or] student conduct within the fraternity.’’). depriving them of legitimate and occupational training.’’ 34 CFR 106.31. Importantly, nothing in the proposed necessary flexibility to make See also Doe v. Brown Univ., 896 F.3d regulations would prevent a recipient disciplinary decisions and to provide 127, 132 n.6 (1st Cir. 2018) (‘‘an from initiating a student conduct supportive measures that might be institution’s education program or proceeding or offering supportive necessary in response to sexual activity’’ may include ‘‘university measures to students who report sexual harassment. Moreover, the Department libraries, computer labs, and vocational harassment that occurs outside the believes that teachers and local school resources . . . campus tours, public recipient’s education program or leaders with unique knowledge of the lectures, sporting events, and other activity (or as to conduct that harms a school culture and student body are best activities at covered institutions’’). person located outside the United positioned to make disciplinary Whether conduct occurs within a States, such as a student participating in decisions; thus, unless the recipient’s recipient’s education program or a study abroad program). Notably, there response to sexual harassment is clearly activity does not necessarily depend on may be circumstances where the unreasonable in light of known the geographic location of an incident harassment occurs in a recipient’s circumstances, the Department will not (e.g., on a recipient’s campus versus off program or activity, but the recipient’s second guess such decisions. In fact, the of a recipient’s campus). See e.g., Rost response obligation is not triggered Court observed in Davis that courts ex rel. K.C. v. Steamboat Springs RE–2 because the complainant was not must not second guess recipients’ Sch. Dist., 511 F.3d 1114, 1121 n.1 (10th participating in, or even attempting to disciplinary decisions. Id. As a matter of Cir. 2008) (‘‘We do not suggest that participate in, the education programs policy, the Department believes that it harassment occurring off school grounds or activities provided by that recipient. would be equally wrong for it to second cannot as a matter of law create liability See e.g., Doe, 896 F.3d at 132–33 guess recipients’ disciplinary decisions under Title IX’’). (affirming judgment on the pleadings through the administrative enforcement In determining whether a sexual and ‘‘[f]inding no plausible claim under process. Where a respondent has been harassment incident occurred within a Title IX’’ where plaintiff alleged that, found responsible for sexual recipient’s program or activity, courts while a Providence College student, harassment, any disciplinary sanction have examined factors such as whether three Brown University students decision rests within the discretion of the conduct occurred in a location or in sexually assaulted her on Brown’s the recipient, although the recipient a context where the recipient owned the campus, and Brown notified the must also provide remedies, as premises; exercised oversight, plaintiff that she had a right to file a appropriate, to the complainant supervision, or discipline; or funded, complaint under Brown’s Code of designed to restore or preserve the sponsored, promoted, or endorsed the Student Conduct—but not Title IX— complainant’s educational access, as event or circumstance. See e.g., Davis, because she had not availed herself or 526 U.S. at 646 (‘‘Where, as here, the attempted to avail herself of any of provided for in proposed misconduct occurs during school hours Brown’s educational programs and § 106.45(b)(1)(i). and on school grounds—the bulk of therefore could not have been denied The Department acknowledges that G.F.’s misconduct, in fact, took place in those benefits). proposed § 106.44(a) would adopt the classroom—the misconduct is taking The Department wishes to emphasize standards that depart from those set place ‘under’ an ‘operation’ of the that when determining how to respond forth in prior guidance and OCR funding recipient.’’); Samuelson v. Or. to sexual harassment, recipients have enforcement of Title IX. The State Univ., 725 Fed. Appx. 598, 599 flexibility to employ age-appropriate Department’s guidance and enforcement (9th Cir. 2018) (affirming dismissal of methods, exercise common sense and practices have taken the position that plaintiff’s Title IX claim against OSU good judgment, and take into account constructive notice—as opposed to because she ‘‘failed to allege that her the needs of the parties involved. actual notice—triggered a recipient’s sexual assault occurred ‘under’ an OSU Finally, the Department wishes to duty to respond to sexual harassment; ‘program or activity’ ’’ where plaintiff clarify that Title IX’s ‘‘education that recipients had a duty to respond to alleged that she was assaulted ‘‘off program or activity’’ language should a broader range of sex-based misconduct campus by a non-university student at not be conflated with Clery Act than the sexual harassment defined in a location that had no sponsorship by or geography; these are distinct the proposed regulation; and that association with OSU’’); Farmer v. jurisdictional schemes, though they may recipients’ response to sexual Kansas State Univ., 2017 WL 980460, at overlap in certain situations. harassment should be judged under a * 8 (D. Kan. Mar. 14, 2017) (holding that Once it has been established that a reasonableness standard, rather than a KSU fraternity is an ‘‘education recipient has actual knowledge of sexual under the deliberate indifference

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standard adopted by the proposed a designated Title IX Coordinator, complainant can choose to file a formal regulation. In 2001, the Department requiring written grievance procedures, complaint at a later time despite having asserted that the Court’s decisions in describing the supportive measures that declined to file a formal complaint at Gebser and Davis and the liability a non-deliberatively indifferent the time the supportive measures are standard set out for private actions for response may require, requiring a school offered. monetary damages did not preclude the to investigate and adjudicate formal We propose adding paragraph (b)(4), Department from maintaining its complaints, and other requirements which states that where paragraphs administrative enforcement standards found in proposed §§ 106.8, 106.44, and (b)(1) through (3) are not implicated, a reflected in the 1997 guidance. See 2001 106.45). recipient with actual knowledge of Guidance at iii–iv. sexual harassment in its education Based on its consideration of the text B. Responding to Formal Complaints of program or activity against a person in and purpose of Title IX, of the reasoning Sexual Harassment; Safe Harbors the United States must, consistent with underlying the Court’s decisions in Section 106.44(b) Specific paragraph (a), respond in a manner that Gebser and Davis, and of the views of Circumstances; Section 106.30 is not deliberately indifferent. A the stakeholders it has consulted, the recipient is deliberately indifferent only Proposed Regulations: We propose Department now believes that the earlier if its response to sexual harassment is guidance should be reconsidered. adding § 106.44(b) to address specific clearly unreasonable in light of the Contrary to the text of Title IX and circumstances under which a recipient known circumstances. inconsistent with the contractual nature will respond to sexual harassment. We Proposed § 106.30 defines of the obligations the statute imposes propose adding paragraph (b)(1) stating ‘‘complainant’’ as an individual who pursuant to Congress’ Spending Clause that a recipient must follow procedures has reported being the victim of conduct authority, the guidance’s constructive (including implementing any that could constitute sexual harassment, notice standard made funding recipients appropriate remedy as required) or on whose behalf the Title IX liable for conduct of which they were consistent with § 106.45 in response to Coordinator has filed a formal unaware. Similarly, the guidance a formal complaint as to allegations of complaint. Additionally, for purposes of arguably exceeded the text of the statute conduct within its education program or this proposed paragraph, the person to by requiring institutions to respond to activity, and that if the recipient follows whom the individual has reported must conduct less severe than that proscribed procedures consistent with § 106.45 in be the Title IX Coordinator or another by Title IX. And, by evaluating schools’ response to a formal complaint, the person to whom notice of sexual responses under a mere reasonableness recipient’s response to the formal harassment results in the recipient’s standard, the guidance improperly complaint is not deliberately indifferent actual knowledge under § 106.30. deprived administrators of needed and does not otherwise constitute sex Proposed § 106.30 defines flexibility to make disciplinary discrimination under Title IX. Proposed ‘‘respondent’’ as an individual who has decisions affecting their students. § 106.30 defines ‘‘formal complaint’’ as been reported to be the perpetrator of The deliberate indifference standard a document signed by a complainant or conduct that could constitute sexual set forth in Davis and in proposed by the Title IX Coordinator alleging harassment. § 106.44(a) allows schools predictably to sexual harassment against a respondent Proposed § 106.30 defines evaluate their response to sexual about conduct within its education ‘‘supportive measures’’ as non- harassment for purposes of both civil program or activity, and requesting disciplinary, non-punitive litigation and administrative initiation of the recipient’s grievance individualized services offered as enforcement by the Department based procedures consistent with § 106.45. appropriate, as reasonably available, on a consistent standard. Although the We also propose adding paragraph and without fee or charge, to the Department is not required to adopt the (b)(2), stating that when a recipient has complainant or the respondent before or liability standards applied by the actual knowledge of reports by multiple after the filing of a formal complaint or Supreme Court in private suits for complainants of conduct by the same where no formal complaint has been money damages, the Department is respondent that could constitute sexual filed. Section 106.30 goes on to explain persuaded by the policy rationales harassment, the Title IX Coordinator that such measures are designed to relied on by the Court. Generally, the must file a formal complaint; if the Title restore or preserve access to the liability standards of actual knowledge IX Coordinator files a formal complaint recipient’s education program or and deliberate indifference are also in response to such allegations, and the activity, without unreasonably appropriate in administrative recipient follows procedures (including burdening the other party; protect the enforcement of Title IX, where a implementing any appropriate remedy safety of all parties and the recipient’s recipient’s federal funding is at stake if where required) consistent with educational environment; and deter it fails to comply with Title IX, because § 106.45 in response to the formal sexual harassment. Supportive measures such standards are premised on holding complaint, the recipient’s response to may include counseling, extensions of recipients accountable for responding to the reports is not deliberately deadlines or other course-related discrimination of which the recipients indifferent. adjustments, modifications of work or know and have control. Recognizing In addition, we propose adding class schedules, campus escort services, that the Department has broad authority paragraph (b)(3), which states that, for mutual restrictions on contact between under the Title IX statute to issue institutions of higher education, in the the parties, changes in work or housing regulations that effectuate the absence of a formal complaint, a locations, leaves of absence, increased provisions of Title IX, the Department is recipient is not deliberately indifferent security and monitoring of certain areas retaining and proposes to add in the when it implements supportive of the campus, and other similar proposed regulation provisions that measures designed to effectively restore measures. Section 106.30 also states that would clarify that, in addition to a or preserve access to the recipient’s the recipient must maintain as general deliberate indifference standard, education program or activity. We confidential any supportive measures schools must take other actions that further proposed that the recipient must provided to the complainant or courts do not require in private also at the same time give written notice respondent, to the extent that litigation under Title IX (e.g., requiring to the complainant stating that the maintaining such confidentiality would

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not impair the ability of the institution claimed that the response was clarifies that when those three situations to provide the supportive measures. deliberately indifferent, or whether the are not implicated, the general Furthermore, § 106.30 clarifies that the respondent claimed that the recipient’s deliberate indifference standard specific Title IX Coordinator is responsible for response otherwise constituted sex in § 106.44(a) applies to a recipient with coordinating the effective discrimination. For institutions of actual knowledge of sexual harassment implementation of supportive measures. higher education, proposed in an education program or activity of Finally, we propose adding § 106.44(b)(3) provides a safe harbor the recipient against a person in the § 106.44(b)(5), which explains that the against a finding of deliberate United States that effectively denies an Assistant Secretary will not deem a indifference where, in the absence of a individual equal access to the recipient’s determination regarding formal complaint, a school’s response to recipient’s education program or responsibility to be evidence of known, reported, or alleged sexual activity. deliberate indifference by the recipient harassment is to offer and provide the To define the respective parties merely because the Assistant Secretary complainant supportive measures involved in a recipient’s grievance would have reached a different designed to effectively restore or procedures, proposed § 106.30 defines determination based on an independent preserve the complainant’s access to the ‘‘complainant’’ as one who has reported weighing of the evidence. recipient’s education program or being the victim of sexually harassing Reasons: To clarify a recipient’s activity. This provision is intended to conduct. To be considered a responsibilities under this standard, call recipients’ attention to the ‘‘complainant,’’ such a report must be proposed § 106.44(b) would specify two importance of offering supportive made to the recipient’s Title IX circumstances under which a recipient measures to students who may not wish Coordinator or other official to whom must initiate its grievance procedures, to file a formal complaint that would notice of sexual harassment results in and in those situations provide a safe initiate a grievance process. The the recipient having actual knowledge harbor from a finding of deliberate Department has heard from a wide range as described in § 106.30. This clarifies indifference where the recipient does in of stakeholders about the importance of when a recipient must view a person as fact implement grievance procedures a school taking into account the wishes a complainant for purposes of offering consistent with the proposed § 106.45. of the complainant in deciding whether supportive measures, investigating a Those two situations are (i) where a or not a formal investigation and formal complaint, and any other formal complaint is filed, or (ii) where adjudication is warranted. The proposed response necessary to meet the the recipient has actual knowledge of regulation creates a framework where a recipient’s obligation to not be reports by multiple complainants of complainant has the right to file a deliberately indifferent. Proposed conduct by the same respondent that formal complaint and the school must § 106.30 defines ‘‘respondent’’ as an could constitute sexual harassment (in then initiate its grievance procedures, individual who has been the subject of which case the proposed regulations but in proposed § 106.44(b)(3) the a report of sexual harassment. require the recipient’s Title IX Consistent with feedback from many Department also recognizes that for a Coordinator to file a formal complaint if stakeholders, the Department recognizes variety of reasons, not all complainants none has already been filed). In that often the most effective measures a want to file a formal complaint, and that response to either of these two recipient can take to support its in many situations a complainant’s situations, if the recipient follows students in the aftermath of an alleged access to his or her education can be grievance procedures consistent with incident of sexual harassment are effectively restored or preserved through proposed § 106.45, including outside the grievance process and the school providing supportive implementing any appropriate remedy involve working with the affected measures. The proposed regulation as required for the complainant, the individuals to provide reasonable recipient is given a safe harbor from a requires that, to be entitled to this safe supportive measures that increase the finding of deliberate indifference by the harbor, the recipient must first inform likelihood that they will be able to Department with respect to its response the complainant in writing of his or her continue their education in a safe, to the formal complaint, because the right to pursue a formal complaint, supportive environment. recipient’s response would not be including the right to later file a formal Also consistent with feedback from ‘‘clearly unreasonable in light of the complaint (consistent with any other stakeholders on the issue of supportive known circumstances.’’ Davis, 526 U.S. requirements of the proposed measures and to provide needed clarity, at 648–49, 654. The Department believes regulation). Proposed § 106.44(b)(3) we (1) propose to define them as non- that including these safe harbors in the gives a safe harbor only to institutions disciplinary, non-punitive regulations emphasizes a recipient’s of higher education, in recognition that individualized services offered as obligation to respond to known sexual college and university students are appropriate, as reasonably available, harassment and to ensure a generally adults capable of deciding and without fee or charge, to the complainant’s access to the recipient’s whether supportive measures alone complainant or the respondent before or education program or activity in suffice to protect their educational after the filing of a formal complaint or situations where a finding of access. where no formal complaint has been responsibility has been made, while Proposed § 106.44(b)(4) states that filed; (2) propose to specify, in the preserving the recipient’s flexibility to even if none of the safe harbor situations definition, that the recipient must implement its grievance procedures, is present, the recipient’s response to maintain as confidential any supportive provided those procedures comply with sexual harassment must still meet the measures provided to the complainant the requirements of proposed § 106.45. general requirement in § 106.44(a) to not or respondent, to the extent that The safe harbor available in proposed be deliberately indifferent, which means maintaining such confidentiality would § 106.44(b)(1) would shield the recipient the recipient’s response must not be not impair the ability of the institution from a finding by the Department that clearly unreasonable in light of the to provide the supportive measures; and the recipient’s response to the formal known circumstances. Section (3) further specify that such measures complaint constituted sex 106.44(b)(1)–(3) explains what are designed to restore or preserve discrimination under Title IX, deliberate indifference means in three access to the recipient’s education regardless of whether the complainant specific contexts. Section 106.44(b)(4) program or activity, without

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unreasonably burdening the other party; review, OCR’s role is not to conduct a secondary education level as well as the protect the safety of all parties and the de novo review of the recipient’s postsecondary education level to ensure recipient’s educational environment; investigation and determination of the health and safety of all students. and deter sexual harassment. For added responsibility for a particular When considering removing a clarity on supportive measures, respondent. Rather, OCR’s role is to respondent pursuant to this provision, proposed § 106.30 contains a non- determine whether a recipient has the proposed regulations require that a exclusive list of examples of supportive complied with Title IX and its recipient follow the requirements of the measures. Recipients are encouraged to implementing regulations. Thus, OCR IDEA, Section 504, and Title II of the broadly consider what measures they will not find a recipient to have violated ADA. Thus, a recipient may remove a can reasonably provide to individual Title IX or this part solely because OCR student on an emergency basis under students to ensure continued equal may have weighed the evidence § 106.44(c), but only to the extent that access to educational programs, differently in a given case. The such removal conforms with the activities, opportunities, and benefits for Department believes it is important to requirements of the IDEA, Section 504 a complainant at the time the include this provision in the regulations and Title II of the ADA. complainant reports or files a formal to provide notice and transparency to Section 106.44(d) Administrative complaint, and for a respondent when a recipients about OCR’s role and Leave formal complaint is being investigated. standard of review in enforcing Title IX. Proposed Regulations: We propose We also specify in the proposed This provision does not, however, preclude OCR from requiring a adding § 106.44(d) stating that nothing definition that the recipient’s Title IX in § 106.44 precludes a recipient from Coordinator is responsible for recipient’s determination of responsibility to be set aside if the placing a non-student employee coordinating effective implementation respondent on administrative leave of supportive measures. Many recipient did not comply with proposed § 106.45. during the pendency of an investigation. supportive measures involve Reasons: Because placing a non- implementation through various offices C. Additional Rules Governing student respondent on administrative or departments within a school; when Recipients’ Responses to Sexual leave does not implicate access to the supportive measures are part of a Harassment recipient’s education programs and school’s response to a Title IX sexual activities in the same way that other Section 106.44(c) Emergency Removal harassment report or formal complaint, respondent-focused measures might, the Title IX Coordinator must serve as Proposed Regulations: We propose and in light of the potentially negative the point of contact for the affected adding § 106.44(c) stating that nothing impact of forcing a recipient to continue students to ensure that the supportive in § 106.44 precludes a recipient from an active agency relationship with a measures are effectively implemented so removing a respondent from the respondent while accusations are being that the burden of navigating paperwork recipient’s education program or investigated, the Department concludes or other policy requirements within the activity on an emergency basis, that it is appropriate to allow recipients recipient’s own system does not fall on provided that the recipient undertakes to temporarily put non-student the student receiving the supportive an individualized safety and risk employees on administrative leave measure. For example, where a mutual analysis, determines that an immediate pending an investigation. no-contact order has been imposed as a threat to the health or safety of students supportive measure, the affected or employees justifies removal, and II. Grievance Procedures for Formal complainant and respondent should provides the respondent with notice and Complaints of Sexual Harassment know to contact the Title IX Coordinator an opportunity to challenge the decision (Proposed § 106.45) with questions about how to interpret or immediately following the removal. Statute: The statute does not directly enforce the no-contact order; as a further Paragraph (c) also states that the address grievance procedures for formal example, where a student receives an paragraph shall not be construed to complaints of sexual harassment. The academic course adjustment as a modify any rights under the Individuals Secretary has the authority to regulate supportive measure, the Title IX with Disabilities Education Act (IDEA), with regard to discrimination on the Coordinator is responsible for Section 504 of the Rehabilitation Act of basis of sex in education programs or communicating with other offices 1973 (Section 504), or Title II of the activities receiving federal financial within the school as needed to ensure Americans with Disabilities Act (ADA). assistance specifically under 20 U.S.C. that the adjustment occurs as intended Reasons: Recognizing that there are 1682 and generally under 20 U.S.C. and without fee or charge to the student. situations in which a respondent may 1221e–3 and 3474. As another example, if counseling pose an immediate threat to the health Current Regulations: 34 CFR 106.8(b) services are provided as a supportive and safety of the campus community states that ‘‘A recipient shall adopt and measure, the Title IX Coordinator before an investigation concludes, publish grievance procedures providing should help coordinate the service and proposed § 106.44(c) would allow for prompt and equitable resolution of ensure the sessions occur without fee or recipients to remove such respondents, student and employee complaints charge. Proposed § 106.44(b)(5) would provided that the recipient undertakes a alleging any action which would be provide that the Assistant Secretary will safety and risk analysis and provides prohibited by this part.’’ not deem a recipient’s determination notice and opportunity to the regarding responsibility that results respondent to challenge the decision Section 106.45(a) Discrimination on from the implementation of its immediately following removal. This the Basis of Sex grievance procedures to be evidence of proposed provision tracks the language Proposed Regulations: We propose deliberate indifference by the recipient in the Clery Act regulations at 34 CFR adding a new § 106.45 addressing the merely because the Assistant Secretary 668.46(g) and would apply to all required grievance procedures for would have reached a different recipients subject to Title IX. The formal complaints of sexual harassment. determination based on an independent Department believes that this provision Proposed paragraph (a) states that a weighing of the evidence. During a for emergency removals should be recipient’s treatment of a complainant complaint investigation or compliance applicable at the elementary and in response to a formal complaint of

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sexual harassment may constitute used to train coordinators, investigators, parties because they are more likely to discrimination on the basis of sex, and or decision-makers not rely on sex trust in, engage with, and rely upon the also states that a recipient’s treatment of stereotypes and instead promote process as legitimate. The Department the respondent may constitute impartial investigations and recognizes that some recipients are state discrimination on the basis of sex under adjudications of sexual harassment; actors with responsibilities to provide Title IX. • Include a presumption that the protections to students and employees Reasons: Deliberate indifference to a respondent is not responsible for the under the Fourteenth Amendment’s Due complainant’s allegations of sexual alleged conduct until a determination Process Clause. Other recipients are harassment may violate Title IX by regarding responsibility is made at the private institutions that do not have separating the student from his or her conclusion of the grievance process; constitutional obligations to their • education on the basis of sex; likewise, Include reasonably prompt students and employees. The due a respondent can be unjustifiably timeframes for completion of the process protections provided under separated from his or her education on grievance process, including reasonably these proposed regulations aim to the basis of sex, in violation of Title IX, prompt timeframes for filing and effectuate the objectives of Title IX by if the recipient does not investigate and resolving appeals if the recipient offers creating consistent, fair, objective adjudicate using fair procedures before an appeal, and including a process that grievance processes that make the imposing discipline. Fair procedures allows for the temporary delay of the process equitable for both parties and benefit all parties by creating trust in grievance process or the limited are more likely to generate reliable both the grievance process itself and the extension of timeframes for good cause outcomes. When presented with an outcomes of the process. with written notice to the complainant allegation of sexual harassment the and the respondent of the delay or recipient must respond in a manner that A. General Requirements for Grievance extension, and the reasons for the is not deliberately indifferent, but to Procedures action; good cause may include evaluate what constitutes an appropriate Section 106.45(b)(1) considerations such as the absence of response, the recipient must first reach the parties or witnesses, concurrent law Proposed Regulations: We propose factual determinations about the enforcement activity, or the need for allegations at issue. This requires the adding § 106.45(b) to specify that for the language assistance or accommodation purpose of addressing formal recipient to employ a grievance process of disabilities; that rests on fundamental notions of complaints of sexual harassment, • Describe the range of possible grievance procedures must comply with fairness and due process protections so sanctions and remedies that the that findings of responsibility rest on the requirements of proposed § 106.45. recipient may implement following any Paragraph (b)(1) states that grievance facts and evidence. Only when an determination of responsibility; outcome is the product of a predictable, procedures must— • Describe the standard of evidence to • fair process that gives both parties Treat complainants and be used to determine responsibility; respondents equitably; an equitable • Include the procedures and meaningful opportunity to participate resolution must include remedies for permissible bases for the complainant will the recipient be in a position to the complainant where a finding of and respondent to appeal if the determine what remedies and/or responsibility against the respondent recipient offers an appeal; and disciplinary sanctions are warranted. has been made, with such remedies • Describe the range of supportive When a recipient establishes an designed to restore or preserve access to measures available to complainants and equitable process with due process the recipient’s education program or respondents. protections and implements it activity, and due process protections for Reasons: In describing the consistently, its findings will be viewed the respondent before any disciplinary requirements for grievance procedures with more confidence by the parties and sanctions are imposed; for formal complaints of sexual the public. • Require an investigation of the harassment in paragraph (b)(1), the Although both complainants and allegations and an objective evaluation Department’s intent is to balance the respondents have a common interest in of all relevant evidence—including both need to establish procedural safeguards a fair process, they also have distinct inculpatory and exculpatory evidence— providing a fair process for all parties interests that are recognized in and provide that credibility with recognition that a recipient needs paragraph (b)(1)(i). For example, determinations may not be based on a flexibility to employ grievance paragraph (b)(1)(i) explains that person’s status as a complainant, procedures that work best for the equitable grievance procedures will respondent, or witness; recipient’s educational environment. provide remedies for the complainant as • Require that any individual Proposed § 106.45(b)(1)(i) would appropriate and due process protections designated by a recipient as a require that grievance procedures treat for the respondent before any coordinator, investigator, or decision- complainants and respondents disciplinary action is taken. Because a maker not have a conflict of interest or equitably, echoing the existing grievance process could result in a bias for or against complainants or requirement in 34 CFR 106.8 that a determination that the respondent respondents generally or an individual recipient’s grievance procedures sexually harassed the complainant, and complainant or respondent; and that a provide for ‘‘prompt and equitable because the resulting sanctions against recipient ensure that coordinators, resolution’’ of complaints. Stakeholders the respondent could include a investigators, and decision-makers have urged the Department to protect complete loss of access to the education receive training on the definition of the interests of both the complainant program or activity of the recipient, an sexual harassment and how to conduct and the respondent, and to ensure that equitable grievance procedure will only an investigation and grievance recipients’ procedures treat both parties reach such a conclusion following a process—including hearings, if equitably and fairly throughout the process that seriously considers any applicable—that protect the safety of process, including incorporating the contrary arguments or evidence the students, ensure due process protections protections described throughout respondent might have, including by for all parties, and promote proposed § 106.45(b). A fair and providing the respondent with all of the accountability; and that any materials equitable grievance process benefits all specific due process protections

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outlined in the rest of the proposed respondents. Recipients would continue witnesses, concurrent law enforcement regulations. Likewise, because the to have the discretion to use their own activity, or the need for language complainant’s access to the recipient’s employees to investigate and/or assistance or accommodation of education program or activity can be adjudicate matters under Title IX or to disabilities. For example, if a concurrent limited by sexual harassment, an hire outside individuals to fulfill these law enforcement investigation has equitable grievance procedure will responsibilities. uncovered evidence that the police plan provide relief from any sexual Proposed § 106.45(b)(1)(iv) would to release on a specific timeframe and harassment found under the procedures require that a recipient’s grievance that evidence would likely be material procedures establish a presumption that required in the proposed regulations to determining responsibility, a and restore access to the complainant the respondent is not responsible for the recipient could reasonably extend the accordingly. alleged conduct until a determination Proposed § 106.45(b)(1)(ii) requires regarding responsibility is made at the timeframe of the grievance process in that a recipient investigate a complaint conclusion of the grievance process. order to allow that evidence to be and that grievance procedures include This requirement is added to ensure included in the final determination of an objective evaluation of the evidence. impartiality by the recipient until a responsibility. Any reason for a delay Stakeholders have raised concerns that determination is made. The requirement must be justified by good cause and recipients sometimes ignore evidence also bolsters other provisions in the communicated by written notice to the that does not fit with a predetermined proposed regulation that place the complainant and the respondent of the outcome, and that investigators and burden of proof on the recipient, rather delay or extension and the reasons for decision-makers have inappropriately than on the parties; indicate that the action; delays caused solely by discounted testimony based on whether supportive measures are ‘‘non- administrative needs are insufficient to it comes from the complainant or the disciplinary’’ and ‘‘non-punitive’’ satisfy this standard. Moreover, respondent. Paragraph (b)(1)(ii) (implying that the recipient may not recipients must meet their legal responds to these concerns by requiring punish an accused person prior to a obligation to provide timely auxiliary the recipient to conduct an investigation determination regarding responsibility); aids and services and reasonable and objectively evaluate all evidence, and impose due process protections accommodations under Title II of the and by prohibiting the recipient from throughout the grievance process. ADA, Section 504, and Title VI of the basing its evaluation of testimony on the Finally, pending the finding of facts Civil Rights Act of 1964, and should person’s status as a complainant, sufficient for the recipient to make a reasonably consider other services such respondent, or witness. determination regarding responsibility, as meaningful access to language Proposed § 106.45(b)(1)(iii) would the requirement mitigates the stigma address the problems that have arisen and reputational harm that accompany assistance. for complainants and respondents as a an allegation of sexual misconduct. A It is important for individuals to have result of coordinators, investigators, and fundamental notion of a fair proceeding a clear understanding of the recipients’ decision-makers making decisions based is that a legal system does not prejudge policies and procedures related to on bias by requiring recipients to fill a person’s guilt or liability. sexual harassment, including the such positions with individuals free The proposed regulations recognize consequences of being found from bias or conflicts of interest. This that the time that it takes to complete responsible for sexual harassment, and proposed provision generally tracks the the grievance process will vary the procedures the recipient will use to language in the Clery Act regulations at depending on, among others things, the make such a determination; otherwise, 34 CFR 668.46(k)(3)(i)(C) and would complexity of the investigation, and that the parties may not have a full and fair apply to all recipients subject to Title prompt resolution of the grievance opportunity to present evidence and IX. Paragraph (b)(1)(iii) would also process is important to both arguments in favor of their side, and the require that coordinators, investigators, complainants and respondents. accuracy and impartiality of the process and decision-makers receive training on Proposed paragraph (b)(1)(v) would (1) the definition of sexual harassment require recipients to designate could suffer as a result. Proposed and (2) how to conduct the investigation reasonably prompt timeframes for the paragraphs (b)(1)(vi) through (ix) would and grievance process in a way that grievance process, including for appeals require that the parties be informed of protects student safety, due process, and if the recipient offers an appeal, but also the possible sanctions and remedies that accountability. This proposed provision provide that timeframes may be may be implemented following the generally tracks the language in the extended for good cause with written determination of responsibility, the Clery Act regulations at 34 CFR notice to the parties and an explanation standard of evidence to be used during 668.46(k)(2)(ii) and would apply to all for the delay. This proposed provision the grievance process, the procedures recipients subject to Title IX. The generally tracks the language in the and permissible bases for appeals if the Department believes that such training Clery Act regulations at 34 CFR recipient offers an appeal, and the range will help ensure that those individuals 668.46(k)(3)(i)(A), which the of supportive measures available to responsible for implementing the Department believes is important to complainants and respondents. These recipient’s grievance procedures are include for all recipients subject to Title proposed provisions generally track the appropriately informed at the IX. Some recipients felt pressure in light language in the Clery Act regulations at elementary and secondary education of prior Department guidance to resolve 34 CFR 668.46(k)(1) and would apply to level as well as the postsecondary the grievance process within 60 days all recipients subject to Title IX. The education level. Recipients would also regardless of the particulars of the Department believes that requiring a be required to use training materials that situation, and in some instances, this recipient to notify the parties of these promote impartial investigations and resulted in hurried investigations and matters in advance is equally important adjudications and that do not rely on adjudications, which sacrificed at the elementary and secondary sex stereotypes, so as to avoid training accuracy and fairness for speed. that would cause the grievance process Proposed paragraph (b)(1)(v) specifies education level as it is at the to favor one side or the other or bias examples of possible reasons for such a postsecondary education level to ensure outcomes in favor of complainants or delay, such as absence of the parties or the parties are fully informed.

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B. Notice and Investigation some cases, a complainant may not including the opportunity to be know details that ideally would be accompanied to any related meeting or Section 106.45(b)(2) Notice of included in the written notice, such as proceeding by the advisor of their Allegations the identity of the respondent, or the choice, and not limit the choice of Proposed Regulations: We propose date or location of the incident. If advisor or presence for either the adding § 106.45(b)(2) stating that upon during the investigation the recipient complainant or respondent in any receipt of a formal complaint, a learns these details then the recipient meeting or grievance proceeding; recipient must provide written notice to should promptly send the written notice however, the recipient may establish the parties of the recipient’s grievance as required by paragraph (b)(2)(i) to the restrictions regarding the extent to procedures and of the allegations. Such now-identified respondent, as which the advisor may participate in the notice must include sufficient details applicable, and/or inform the proceedings, as long as the restrictions (such as the identities of the parties respondent of the details of allegations apply equally to both parties; involved in the incident, if known, the that were previously unknown (such as • Provide to the party whose specific section of the recipient’s code the date or location of the alleged participation is invited or expected of conduct allegedly violated, the incident). The unavailability of material written notice of the date, time, conduct allegedly constituting sexual details, particularly the identity of the location, participants, and purpose of all harassment under this part and under respondent, may impede a recipient’s hearings, investigative interviews, or the recipient’s code of conduct, and the ability to investigate and thus impact other meetings with a party, with date and location of the alleged whether the recipient’s response is sufficient time for the party to prepare incident, if known) and provide deliberately indifferent. If, during the to participate; sufficient time to prepare a response investigation, the recipient decides to • For recipients that are elementary before any initial interview. The written investigate additional allegations, the and secondary schools, the recipient’s notice must also include a statement recipient must provide notice of those grievance procedures may require a live that the respondent is presumed not allegations to the parties. This notice hearing. With or without a hearing, the responsible for the alleged conduct and would keep the parties meaningfully decision-maker must, after the recipient that a determination regarding informed of any expansion in the scope has incorporated the parties’ responses responsibility is made at the conclusion of the investigation. It is also important to the investigative report under of the grievance process. The notice for recipients to notify parties about any § 106.45(b)(3)(ix), ask each party and must inform the parties that they may provisions in its code of conduct that any witnesses any relevant questions request to inspect and review evidence prohibit knowingly making false and follow-up questions, including under § 106.45(b)(3)(viii). Additionally, statements or knowingly submitting those challenging credibility, that a the notice must inform the parties of false information during the grievance party wants asked of any party or any provision in the recipient’s code of process so as to emphasize the witnesses. If no hearing is held, the conduct that prohibits knowingly recipients’ serious commitment to the decision-maker must afford each party making false statements or knowingly truth-seeking nature of the grievance the opportunity to submit written submitting false information during the process and to incentivize honest, questions, provide each party with the grievance process. Also, if the recipient candid participation in it. answers, and allow for additional, decides later to investigate allegations limited follow-up questions from each not included in the notice provided Section 106.45(b)(3) Investigations of a party. With or without a hearing, all pursuant to paragraph (b)(2)(i)(B), the Formal Complaint questioning must exclude evidence of recipient must provide notice of the Proposed Regulations: We propose the complainant’s sexual behavior or additional allegations to known parties. adding § 106.45(b)(3) stating that the predisposition, unless such evidence Reasons: To meaningfully participate recipient must conduct an investigation about the complainant’s sexual behavior in the process, all parties must have of the allegations in a formal complaint. is offered to prove that someone other adequate notice of the allegations and Proposed § 106.45(b)(3) also states that than the respondent committed the grievance procedures. Without the if the conduct alleged by the conduct alleged by the complainant, or information included in the written complainant would not constitute if the evidence concerns specific notice required by proposed sexual harassment as defined in incidents of the complainant’s sexual § 106.45(b)(2), a respondent would be § 106.30 even if proved or did not occur behavior with respect to the respondent unable to adequately respond to within the recipient’s program or and is offered to prove consent. The allegations. This notice will also ensure activity, the recipient must terminate its decision-maker must explain to the that the complainant is able to grievance process with regard to that party proposing the questions any understand the grievance process, conduct, and that when investigating a decision to exclude questions as not including what allegations are part of formal complaint, a recipient must— relevant; the investigation. The requirement to • Ensure that the burden of proof and • For institutions of higher education, provide sufficient details (such as the the burden of gathering evidence the recipient’s grievance procedure identities of the parties involved in the sufficient to reach a determination must provide for a live hearing. At the incident, if known, the specific section regarding responsibility rest on the hearing, the decision-maker must permit of the recipient’s code of conduct recipient and not on the parties; each party to ask the other party and allegedly violated, the conduct allegedly • Provide equal opportunity for the any witnesses all relevant questions and constituting sexual harassment under parties to present witnesses and other follow-up questions, including those this part and under the recipient’s code inculpatory and exculpatory evidence; challenging credibility. Such cross- of conduct, and the date and location of • Not restrict the ability of either examination at a hearing must be the alleged incident, if known) applies party to discuss the allegations under conducted by the party’s advisor of whenever a formal complaint is filed investigation or to gather and present choice, notwithstanding the discretion against a respondent, whether the relevant evidence; of the recipient under § 106.45(b)(3)(iv) complaint is signed by the complainant • Provide the parties with the same to otherwise restrict the extent to which or by the Title IX Coordinator. The opportunities to have others present advisors may participate in the qualifier ‘‘if known’’ reflects that in during any grievance proceeding, proceedings. If a party does not have an

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advisor present at the hearing, the report to the parties for their review and using evidence merely because it was recipient must provide that party an written response. collected by law enforcement. advisor aligned with that party to Reasons: Proposed § 106.45(b)(3) With the goal of ensuring fairness and conduct cross-examination. All cross- would set forth specific standards to equity for all parties throughout the examination must exclude evidence of govern investigations of formal investigation process, proposed the complainant’s sexual behavior or complaints of sexual harassment. To paragraphs (b)(3)(ii), (iii), (iv), and (viii) predisposition, unless such evidence ensure a recipient’s resources are would require recipients to provide the about the complainant’s sexual behavior directed appropriately at handling parties with an equal opportunity to is offered to prove that someone other complaints of sexual harassment, present witnesses and other inculpatory than the respondent committed the proposed paragraph (b)(3) would require and exculpatory evidence; permit the conduct alleged by the complainant, or recipients to dismiss a formal complaint parties to discuss the investigation; if the evidence concerns specific or an allegation within a complaint provide the parties with the same incidents of the complainant’s sexual without conducting an investigation if opportunities to have others present behavior with respect to the respondent the alleged conduct, taken as true, is not during any grievance proceeding, and is offered to prove consent. At the sexual harassment as defined in the including the opportunity to be request of either party, the recipient proposed regulations or if the conduct accompanied by an advisor of their must provide for cross-examination to did not occur within the recipient’s choice with any restrictions on the occur with the parties located in program or activity. This ensures that advisor’s participation being applied separate rooms with technology only conduct covered by Title IX is equally to both parties; provide the enabling the decision-maker and parties treated as a Title IX issue in a school’s parties with equal opportunity to to simultaneously see and hear the party grievance process. The Department inspect and review any evidence answering questions. The decision- emphasizes that a recipient remains free obtained as part of the investigation that maker must explain to the party’s to respond to conduct that does not is directly related to the allegations advisor asking cross-examination meet the Title IX definition of sexual raised in a formal complaint, including questions any decision to exclude harassment, or that did not occur within the evidence upon which the recipient questions as not relevant. If a party or the recipient’s program or activity, does not intend to rely in reaching a witness does not submit to cross- including by responding with determination regarding responsibility; examination at the hearing, the supportive measures for the affected equal opportunity to respond to such evidence; and equal opportunity to refer decision-maker must not rely on any student or investigating the allegations to such evidence during the hearing, statement of that party or witness in through the recipient’s student conduct including for purposes of cross- reaching a determination regarding code, but such decisions are left to the examination. Because both parties can responsibility; recipient’s discretion in situations that review and respond to this evidence, • Provide both parties an equal do not involve conduct falling under discuss the investigation with others in opportunity to inspect and review Title IX’s purview. order to identify additional evidence, evidence obtained as part of the Proposed paragraph (b)(3)(i) would introduce any additional evidence into investigation that is directly related to place the burden of proof and the the proceeding, and receive guidance the allegations raised in a formal burden of gathering evidence sufficient from an advisor of their choice complaint, including the evidence upon to reach a determination regarding throughout, the process will be which the recipient does not intend to responsibility on the recipient, not on substantially more thorough and fair rely in reaching a determination the parties. Recipients, not and the resulting outcomes will be more regarding responsibility, so that each complainants or respondents, must reliable. Proposed paragraph (b)(3)(iv) party can meaningfully respond to the comply with Title IX, so the burden of generally tracks the language in the evidence prior to conclusion of the gathering evidence relating to Clery Act regulations at 34 CFR investigation. Prior to completion of the allegations of sexual harassment under 688.46(k)(2)(iii) and (iv) and would investigative report, the recipient must Title IX and determining whether the apply to all recipients subject to Title send to each party and the party’s evidence shows responsibility IX. And, proposed paragraph (b)(3)(viii) advisor, if any, the evidence subject to appropriately falls to the recipient. is consistent with the Family inspection and review in an electronic Although a school could contract with Educational Rights and Privacy Act format, such as a file sharing platform, a third-party agent to perform an (FERPA), under which a student has a that restricts the parties and advisors investigation or otherwise satisfy its right to inspect and review records that from downloading or copying the responsibilities under this section, directly relate to that student. The evidence, and the parties shall have at including to gather evidence, the Department believes that permitting least ten days to submit a written recipient will be held to the same both parties to be accompanied by an response, which the investigator will standards under this section regardless advisor or other individual of their consider prior to completion of the of whether those responsibilities are choice (who may be an attorney) is also investigative report. The recipient must performed by the recipient directly important at the elementary and make all such evidence subject herein to through its employees or through a third secondary education level to ensure that the parties’ inspection and review party such as a contractor. Likewise, both parties are treated equitably. available at any hearing to give each although schools will often report To ensure that the complainant and party equal opportunity to refer to such misconduct under this section to the respondent are able to meaningfully evidence during the hearing, including appropriate authorities, including as participate in the process and that any for purposes of cross-examination; and required under state law, a report to witnesses have adequate time to • Create an investigative report that police or the presence of a police prepare, proposed § 106.45(b)(3)(v) fairly summarizes relevant evidence investigation regarding misconduct would require recipients to provide to and, at least ten days prior to a hearing under this section does not relieve a the party whose participation is invited (if a hearing is required under § 106.45) recipient of its obligations under this or expected written notice of all or other time of determination regarding section. Nothing in the proposed hearings, investigative interviews, or responsibility, provide a copy of the regulation prevents a recipient from other meetings with a party, with

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sufficient time for the party to prepare opportunity to conduct its questioning In addition, proposed to participate in the proceeding. of other parties and witnesses by § 106.45(b)(3)(vi) and (vii) would set Without this protection, a party’s ability submitting written questions to the forth a standard for when questions to participate in a hearing, interview, or decision-maker, who must provide the regarding a complainant’s sexual meeting might not be meaningful or add answers to the asking party and allow behavior may be asked, applicable to all any value to the proceeding. The for additional, limited follow-up recipients. These sections incorporate Department believes that this proposed questions from each party. language from (and are in the spirit of) provision, which is similar to the Clery In contrast, the Department has the rape shield protections found in Act regulation at 34 CFR determined that at institutions of higher Federal Rule of Evidence 412, which is 688.46(k)(3)(i)(B) with respect to timely education, where most parties and intended to safeguard complainants notice of meetings, is equally important witnesses are adults, grievance against invasion of privacy, potential at the elementary and secondary procedures must include live cross- embarrassment, and stereotyping. See education level and the postsecondary examination at a hearing. Proposed Fed. R. Evid. 412 Advisory Committee’s education level to ensure that both § 106.45(b)(3)(vii) requires institutions Note. As the Court has explained, rape parties are treated equitably. to provide a live hearing, and to allow shield protections are intended to Cross-examination is the ‘‘greatest the parties’ advisors to cross-examine protect complainants ‘‘from being legal engine ever invented for the the other party and witnesses. If a party exposed at trial to harassing or discovery of truth.’’ California v. Green, does not have an advisor at the hearing, irrelevant questions concerning their 399 U.S. 149, 158 (1970) (quoting John the recipient must provide that party an past sexual behavior.’’ Michigan v. H. Wigmore, 5 Evidence sec. 1367, at 29 advisor aligned with that party to Lucas, 500 U.S. 145, 146 (1991). (3d ed., Little, Brown & Co. 1940)). The conduct cross-examination. Cross- Similarly, proposed § 106.45(b)(3)(vi) Department recognizes the high stakes examination conducted by the parties’ and (vii) would prevent harassing or for all parties involved in a sexual advisors (who may be attorneys) must irrelevant questions about a harassment investigation, and be permitted notwithstanding the complainant’s sexual behavior or recognizes that the need for recipients to discretion of the recipient under predisposition from being asked. reach reliable determinations lies at the § 106.45(b)(3)(iv) to otherwise restrict Importantly, these proposed paragraphs heart of Title IX’s guarantees for all the extent to which advisors may also ensure that questions about a parties. Indeed, at least one federal participate in the proceedings. In the complainant’s sexual behavior can be circuit court has held that in the Title context of institutions of higher asked to prove that someone other than IX context cross-examination is not just the respondent committed the conduct a wise policy, but is a constitutional education, the proposed regulation balances the importance of cross- alleged by the complainant, or when requirement of Due Process. Doe v. evidence about specific incidents of the Baum, 903 F.3d 575, 581 (6th Cir. 2018) examination with any potential harm from personal confrontation between complainant’s sexual behavior with (‘‘Not only does cross-examination respect to the respondent is offered to allow the accused to identify the complainant and the respondent by requiring questions to be asked by an prove consent. Federal Rule of Evidence inconsistencies in the other side’s story, 412 applies these exceptions to the but it also gives the fact-finder an advisor aligned with the party. Further, the proposed regulation allows either general prohibition against asking about opportunity to assess a witness’s a complainant’s sexual behavior, and for demeanor and determine who can be party to request that the recipient facilitate the parties being located in the same reasons, such exceptions trusted’’). promote truth-seeking in campus The Department has carefully separate rooms during cross- proceedings. considered how best to incorporate the examination while observing the value of cross-examination for questioning live via technological To maintain a transparent process, the proceedings at both the postsecondary means. The proposed regulations parties need a complete understanding level and the elementary and secondary thereby provide the benefits of cross- of the evidence obtained by the level. Because most parties and many examination while avoiding any recipient and how a determination witnesses are minors in the elementary unnecessary trauma that could arise regarding responsibility is made. For and secondary school context, from personal confrontation between that reason, proposed § 106.45(b)(3)(viii) sensitivities associated with age and the complainant and the respondent. Cf. would require recipients to provide both developmental ability may outweigh the Baum, 903 F.3d at 583 (‘‘Universities parties an equal opportunity to inspect benefits of cross-examination at a live have a legitimate interest in avoiding and review any evidence obtained as hearing. Proposed § 106.45(b)(3)(vi) procedures that may subject an alleged part of the investigation that is directly allows—but does not require— victim to further harm or harassment. related to the allegations raised in a elementary and secondary schools to And in sexual misconduct cases, formal complaint, including evidence hold a live hearing as part of their allowing the accused to cross-examine upon which the recipient does not grievance procedures. With or without a the accuser may do just that. But in intend to rely in making a determination hearing, the complainant and the circumstances like these, the answer is regarding responsibility. The evidence respondent must have an equal not to deny cross-examination must also be provided electronically opportunity to pose questions to the altogether. Instead, the university could and the parties must be given at least other party and to witnesses prior to a allow the accused student’s agent to ten days to submit a written response; determination of responsibility, with conduct cross-examination on his these requirements will facilitate each each party being permitted the behalf. After all, an individual aligned party’s ability to identify evidence that opportunity to ask all relevant questions with the accused student can supports their position and emphasize and follow-up questions, including accomplish the benefits of cross- such evidence in their arguments to the those challenging credibility, and a examination—its adversarial nature and decision-maker. The scope of the requirement that the recipient explain the opportunity for follow-up—without parties’ right to inspect and review any decision to exclude questions on subjecting the accuser to the emotional evidence collected by the recipient is the basis of relevance. If no hearing is trauma of directly confronting her consistent with students’ privacy rights held, each party must have the alleged attacker.’’). under FERPA, under which a student

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has a right to inspect and review records preponderance of the evidence, and that recipients to choose the preponderance that directly relate to that student. Title IX grievance processes are standard instead of the clear and Proposed § 106.45(b)(3)(ix) would analogous to civil litigation in many convincing standard, and thus, it is require recipients to create an ways, it is also true that Title IX appropriate for the Department to give investigative report that summarizes grievance processes lack certain features them the flexibility to do so. relevant evidence and provide a copy of that promote reliability in civil To ensure that recipients do not single the report to the parties, allowing both litigation. For example, many recipients out respondents in sexual harassment parties at least ten days prior to any will choose not to allow active matters for uniquely unfavorable hearing or other time of determination participation by counsel; there are no treatment, a recipient would only be regarding responsibility the opportunity rules of evidence in Title IX grievance allowed to use the preponderance of the to respond in writing to the report. processes; and Title IX grievance evidence standard for sexual harassment These requirements will put the parties processes do not afford parties complaints if it uses that standard for on the same level in terms of access to discovery to the same extent required by other conduct code violations that carry information to ensure that both parties rules of civil procedure. the same potential maximum sanction participate in a fair, predictable process Moreover, Title IX grievance as the recipient could impose for a that will allow the parties to serve as a processes are also analogous to various sexual harassment conduct code check on any decisions the recipient kinds of civil administrative violation. Likewise, to avoid the makes regarding the inclusion or proceedings, which often employ a clear specially disfavored treatment of relevance of evidence. Notwithstanding and convincing evidence standard. See, student respondents in comparison to the foregoing rights of the parties to e.g., Nguyen v. Washington Dept. of respondents who are employees such as review and respond to the evidence Health, 144 Wash. 2d 516 (2001) faculty members, who often have collected by the recipient, the recipient (requiring clear and convincing superior leverage as a group in must at all times proceed with the evidence in sexual misconduct case in extracting guarantees of protection burden of conducting the investigation a professional disciplinary proceeding under a recipient’s disciplinary into all reasonably available, relevant for a medical doctor as a way of procedures, recipients are also required evidence; the burden of collecting and protecting due process); Disciplinary to apply the same standard of evidence presenting evidence should always Counsel v. Bunstine, 136 Ohio St. 3d for complaints against students as they remain on the recipient and not on the 276 (2013) (clear and convincing do for complaints against employees, parties. evidence applied in sexual harassment including faculty. In contrast, because of case involving lawyer). These cases the heightened stigma often associated C. Standard of Evidence recognize that, where a finding of with a complaint regarding sexual Section 106.45(b)(4)(i) responsibility carries particularly grave harassment, the proposed regulation consequences for a respondent’s gives recipients the discretion to impose Proposed Regulations: We propose reputation and ability to pursue a adding § 106.45(b)(4)(i) stating that in a clear and convincing evidence profession or career, a higher standard standard with regard to sexual reaching a determination regarding of proof can be warranted. Indeed, one responsibility, the recipient must apply harassment complaints even if other court has held that in student types of complaints are subject to a either the preponderance of the disciplinary cases involving serious evidence standard or the clear and preponderance of the evidence accusations like sexual assault where standard. Within these constraints, the convincing evidence standard. The the consequences of a finding of recipient may, however, employ the proposed regulation recognizes that responsibility would be significant, recipients should be able to choose a preponderance of the evidence standard permanent, and far-reaching, a only if the recipient uses that standard standard of proof that is appropriate for preponderance of the evidence standard investigating and adjudicating for conduct code violations that do not is inadequate. Lee v. University of New complaints of sex discrimination given involve sexual harassment but carry the Mexico, No. 1:17–cv–01230–JB–LF (D. the unique needs of their community. same maximum disciplinary sanction. N.M. Sept. 20, 2018) (‘‘Moreover, the The recipient must also apply the same Court concludes that preponderance of D. Additional Requirements for standard of evidence for complaints the evidence is not the proper standard Grievance Procedures against students as it does for for disciplinary investigations such as Section 106.45(b)(4) Determination complaints against employees, the one that led to Lee’s expulsion, Regarding Responsibility including faculty. given the significant consequences of Reasons: The statutory text of Title IX having a permanent notation such as the Proposed Regulations: We propose does not dictate a standard of evidence one UNM placed on Lee’s transcript’’). adding § 106.45(b)(4) stating that the to be used by recipients in After considering this issue, the decision-maker(s), who cannot be the investigations of sexual harassment. Department decided that its proposed same person(s) as the Title IX Past guidance from the Department regulation should leave recipients with Coordinator or the investigator(s), must originally allowed recipients to choose the discretion to use either a issue a written determination regarding which standard to employ, but was later preponderance or a clear and responsibility applying the appropriate changed to require recipients to use convincing standard in their grievance standard of evidence as discussed only the preponderance of the evidence. procedures. The Department does not above. When the Department issued guidance believe it would be appropriate to The written determination must requiring recipients to use only impose a preponderance requirement in include— preponderance of the evidence, it the absence of all of the features of civil • Identification of the section(s) of the justified the requirement by comparing litigation that are designed to promote recipient’s code of conduct alleged to the grievance process to civil litigation, reliability and fairness. Likewise, the have been violated; and to the Department’s own process for Department believes that in light of the • A description of the procedural investigating complaints against due process and reliability protections steps taken from the receipt of the recipients under Title IX. Although it is afforded under the proposed complaint through the determination, true that civil litigation generally uses regulations, it could be reasonable for including any notifications to the

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parties, interviews with parties and person who served as the Title IX regarding responsibility has become witnesses, site visits, methods used to Coordinator or investigator. final, in cases where the respondent is gather other evidence, and hearings To foster reliability and thoroughness found responsible, the recipient must held; and to ensure that a recipient’s findings promptly implement remedies designed • Findings of fact supporting the are adequately explained, proposed to help the complainant maintain equal determination; § 106.45(b)(4)(i) would require access to the recipient’s educational • Conclusions regarding the recipients to issue a written programs, activities, benefits, and application of the recipient’s code of determination regarding responsibility. opportunities. In cases where the conduct to the facts; So that the parties have a complete respondent is found not responsible, no • A statement of, and rationale for, understanding of the process and remedies are required for the the result as to each allegation, information considered by the recipient complainant, although a recipient may including a determination regarding to reach its decision, proposed continue to offer supportive measures to responsibility, any sanctions the § 106.45(b)(4)(ii) would require the either party. notice of determination to include: The recipient imposes on the respondent, Section 106.45(b)(5) Appeals and any remedies provided to the sections of the recipient’s code of complainant designed to restore or conduct alleged to have been violated; Proposed Regulations: We propose preserve access to the recipient’s the procedural steps taken from the adding § 106.45(b)(5) stating that a recipient may choose to offer an appeal. education program or activity; and receipt of the complaint through the If a recipient offers an appeal, it must • The recipient’s procedures and determination; findings of fact allow both parties to appeal. In cases permissible bases for the complainant supporting the determination; where there has been a finding of and respondent to appeal. conclusions regarding the application of the recipient’s code of conduct to the responsibility, although a complainant The recipient must provide the facts; a statement of, and the recipient’s may appeal on the ground that the written determination to the parties rationale for, the result, including a remedies are not designed to restore or simultaneously. If the recipient does not determination regarding responsibility; preserve the complainant’s access to the offer an appeal, the determination any sanctions the recipient imposes on recipient’s education program or regarding responsibility becomes final the respondent; and information activity, a complainant is not entitled to on the date that the recipient provides regarding the appeals process and the a particular sanction against the the parties with the written recipient’s procedures and permissible respondent. As to all appeals, the determination. If the recipient offers an bases for the complainant and recipient must: (i) Notify the other party appeal, the determination regarding respondent to appeal. in writing when an appeal is filed and responsibility becomes final at either Proposed § 106.45(b)(4)(ii)(E) requires implement appeal procedures equally the conclusion of the appeal process, if that the written determination contain a for both parties; (ii) ensure that the an appeal is filed, or, if an appeal is not statement of, and rationale for, the appeal decision-maker is not the same filed, the date on which an appeal result, including any sanctions imposed person as any investigator(s) or would no longer be considered timely. by the recipient and any remedy given decision-maker(s) that reached the Reasons: Proposed § 106.45(b)(4) to the complainant. Proposed determination regarding responsibility; would address the process that § 106.45(b)(4)(iii) requires that this (iii) ensure that the appeal decision- recipients use to make determinations written determination be provided maker complies with the standards set regarding responsibility, with simultaneously to the parties. These forth in § 106.45(b)(1)(iii); (iv) give both requirements designed to ensure that provisions generally track the language parties a reasonable, equal opportunity recipients make sound and supportable of the Clery Act regulations at 34 CFR to submit a written statement in support decisions through a process that 668.46(k)(2)(v) and (k)(3)(iv) already of, or challenging, the outcome; (v) issue incorporates appropriate protections for applicable to institutions of higher a written decision describing the result all parties while providing adequate education. The Department believes that of the appeal and the rationale for the notice of such decisions. Requiring the the benefits of these provisions, result; and (vi) provide the written decision-maker to be different from any including promoting transparency and decision simultaneously to both parties. person who served as the Title IX equal treatment of the parties, are Reasons: Many recipients offer an Coordinator or investigator forecloses a equally applicable at the elementary and appeal from the outcome of a Title IX recipient from utilizing a ‘‘single secondary level. grievance process. After extensive investigator’’ or ‘‘investigator-only’’ Proposed § 106.45(b)(4)(iii) instructs stakeholder engagement on the subject model for Title IX grievance processes. recipients to provide the written of school-level appeals, the Department The Department believes that determination simultaneously to both believes that by offering that fundamental fairness to both parties parties so that both parties know the opportunity to both parties, recipients requires that the intake of a report and outcome and, if an appeal is available, will be more likely to reach sound formal complaint, the investigation both parties have equal opportunity to determinations, giving the parties (including party and witness interviews consider filing an appeal. If the greater confidence in the ultimate and collection of documentary and recipient does not offer an appeal, the outcome. Complainants and other evidence), drafting of an determination regarding responsibility respondents have different interests in investigative report, and ultimate becomes final on the date that the the outcome of a sexual harassment decision about responsibility should not recipient provides the parties with the complaint. Complainants ‘‘have a right, be left in the hands of a single person. written determination. If the recipient and are entitled to expect, that they may Rather, after the recipient has conducted offers an appeal, the determination attend [school] without fear of sexual its impartial investigation, a separate regarding responsibility becomes final assault or harassment,’’ while for decision-maker must reach the when the appeal process is concluded, respondents a ‘‘finding of responsibility determination regarding responsibility; or if no appeal is filed, on the date on for a sexual offense can have a lasting that determination can be made by one which an appeal would not be timely impact on a student’s personal life, in or more decision-makers (e.g., a panel), under the recipient’s designated time addition to [the student’s] educational but no decision-maker can be the same frames. Once the determination and employment opportunities[.]’’ Doe

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v. Univ. of Cincinnati, 872 F.3d 393, Section 106.45(b)(6) Informal may lead to more favorable outcomes for 400, 403 (6th Cir. 2017) (internal Resolution everyone involved, depending upon quotation marks and citations omitted). Proposed Regulations: We propose factors such as the age, developmental Although these interests differ, each adding § 106.45(b)(6) stating that at any level, and other capabilities of the represents high-stakes, potentially life- time prior to reaching a determination parties; the knowledge, skills, and altering consequences deserving of an regarding responsibility the recipient experience level of those facilitating or accurate outcome. See id. at 404 may facilitate an informal resolution conducting the informal resolution (recognizing that the complainant process, such as mediation, that does process; the severity of the misconduct ‘‘deserves a reliable, accurate outcome not involve a full investigation and alleged; and likelihood of recurrence of the misconduct. Proposed paragraph as much as’’ the respondent). The adjudication, provided that the recipient (b)(6)(ii) would require the recipient to Department proposes that where a provides to the parties a written notice obtain voluntary, written consent from recipient offers an appeal, such appeal disclosing— the parties in advance of any informal should be equally available to both • The allegations; • The requirements of the informal resolution process in order to ensure parties, reflecting that each party has an that no party is involuntarily denied the important stake in the reliability of the resolution process including the circumstances under which it precludes protections that would otherwise be outcome. Importantly, the proposed provided by these regulations. regulation notes that in cases where the parties from resuming a formal there has been a finding of complaint arising from the same Section 106.45(b)(7) Recordkeeping responsibility, although a complainant allegations, if any; and Proposed Regulations: We propose • Any consequences resulting from may appeal on the ground that the adding § 106.45(b)(7) stating that a participating in the informal resolution remedies are not designed to restore or recipient must create, make available to process, including the records that will preserve the complainant’s access to the the complainant and respondent, and be maintained or could be shared. maintain for a period of three years recipient’s education program or The recipient must also obtain the activity, a complainant is not entitled to records of— parties’ voluntary, written consent to • a particular sanction against the The sexual harassment the informal resolution process. investigation, including any respondent. See e.g., Davis, 526 U.S. at Reasons: As mentioned previously, 648 (‘‘the dissent erroneously imagines determination regarding responsibility, the proposed regulations reflect the disciplinary sanctions imposed on the that victims of peer harassment now Department’s recognition that respondent, and remedies provided to have a Title IX right to make particular recipients’ good judgment and common the complainant; remedial demands.’’); Stiles ex rel. D.S. sense are important elements of a • Any appeal and the result v. Grainger Co., Tenn., 819 F.3d 834, response to sex discrimination that therefrom; 848 (6th Cir. 2016) (‘‘Title IX does not meets the requirements of Title IX. The • Informal resolution, if any; and give victims a right to make particular Department also recognizes that in • All materials used to train remedial demands.’’) (internal responding to sexual harassment, it is coordinators, investigators, decision- quotations omitted); Sanches v. important to take into account the needs makers with regard to sexual Carrollton-Farmers Branch Indep. Sch. of the parties involved in each harassment. Dist., 647 F.3d 156, 167–68 (5th Cir. individual case, some of whom may This provision would also provide 2011) (‘‘Schools are not required to . . . prefer not to go through a formal that a recipient must create and accede to a parent’s remedial demands’’) complaint process. Recognizing these maintain for a period of three years (internal citations omitted). factors, proposed § 106.45(b)(6) would records of any actions, including any permit recipients to facilitate an supportive measures, taken in response Similarly to the initial investigation informal resolution process of an to a report or formal complaint of sexual and adjudication, the recipient must allegation of sexual harassment at any harassment. In each instance, the ensure that any appeal process is time prior to issuing a final recipient must document the basis for conducted in a timely manner and gives determination regarding responsibility, its conclusion that its response was not both parties an equal opportunity to if deemed appropriate by the recipient clearly unreasonable, and document argue for or against the outcome. Like and the parties. To ensure that the that it has taken measures designed to any of the recipient’s Title IX parties do not feel forced into an restore or preserve access to the Coordinators, investigators, or decision- informal resolution by a recipient, and recipient’s educational program or makers, the appeal decision-maker must to ensure that the parties have the activity. The documentation of certain be free from bias or conflicts of interest, ability to make an informed decision, bases or measures does not limit the and must be trained on the definition of proposed paragraph (b)(6)(i) would recipient in the future from providing sexual harassment and the recipient’s require recipients to inform the parties additional explanations or detailing grievance process using training in writing of the allegations, the additional measures taken. materials that promote impartial requirements of the informal resolution Reasons: To ensure that the parties, decision-making and are free from sex process, and any consequences resulting the Department, and recipients have stereotypes. When designating from participating in the informal access to relevant information for an reasonable timeframes for the filing and process. For example, the recipient appropriate period of time following the resolution of appeals, recipients should would need to explain to the parties if completion of the grievance procedure endeavor to permit parties sufficient one or more available informal process, proposed § 106.45(b)(7) would time to file an appeal and submit resolution options would become address the recordkeeping requirements binding on the parties at any point, as related to formal complaints of sexual written arguments, yet resolve the is often the case with arbitration-style harassment with which recipients must appeal process as expeditiously as processes, or if the process would comply. These requirements would possible to provide finality of the remain non-binding throughout, as is benefit complainants and respondents grievance process for the benefit of all often the case with mediation-style by empowering them to more effectively parties. processes. Informal resolution options hold their recipient schools and

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institutions accountable for Title IX to contemplate a condition ordering recipient that has violated Title IX and compliance by ensuring the existence of payment of monetary damages, and refused to come into compliance. records that could be used during an there is no indication that payment of Effect of Other Requirements and investigation by the Department or in damages has been demanded as a Preservation of Rights (Current § 106.6 private litigation. We believe the condition of finding a recipient to be in and Proposed § 106.6) required three-year retention period is compliance with the statute’’) (internal sufficient to allow the Department and citation omitted). Statute: The statute does not directly address the effect of other requirements the parties to ensure compliance with For example, if a student entitled to the proposed regulations, but we or the preservation of rights. The speech therapy under her specifically seek comment on the Secretary has the authority to regulate Individualized Education Program (IEP) appropriate period for retention in a with regard to discrimination on the complains that a school district did not directed question below. During the basis of sex in education programs or provide the therapy, the Department record retention period, these records activities receiving federal financial may permissibly require that the school would continue to be subject to the assistance specifically under 20 U.S.C. applicable provisions of FERPA, as district reimburse the parents for their 1682 and generally under 20 U.S.C. discussed below. reasonable and documented expenses 1221e–3 and 3474. for obtaining services that that the Current Regulations: Current § 106.6 III. Clarifying Amendments to Existing school district was required to provide. provides that the obligations under the Regulations Cf. Sch. Comm. of Burlington v. Dep’t of Title IX regulations do not alter Remedial and Affirmative Action and Educ., 471 U.S. 359, 370 (1985) (‘‘[T]he obligations not to discriminate on the basis of sex under other specified laws Self-Evaluation (Current § 106.3(a) and Town repeatedly characterizes and Executive Orders, and the Proposed § 106.3(a)) reimbursement as ‘damages,’ but that simply is not the case. Reimbursement obligation to comply with Title IX is not Statute: The statute does not directly merely requires the Town to belatedly obviated or alleviated by State or local address the issue of particular types of pay expenses that it should have paid laws or by a rule or regulation of any remedies, beyond the statement that all along and would have borne in the organization, club, or league. compliance may be effected by a first instance had it developed a proper withdrawal of federal funding or ‘‘by Section 106.6(d) Constitutional IEP.’’). Likewise, in the context of Title Protections any other means authorized by law.’’ 20 IX, if a recipient allowed male students U.S.C. 1682. The Secretary has the Proposed Regulations: We are with athletic scholarships to retain their authority to regulate with regard to proposing to add paragraph (d) to scholarships even if they are removed discrimination on the basis of sex in § 106.6 to affirm that nothing in 34 CFR from the team or stop participating on education programs or activities part 106 requires a recipient to: Restrict the team, but did not allow female receiving federal financial assistance any rights that are protected from students the same ability to retain their specifically under 20 U.S.C. 1682 and governmental action by the First scholarship, the Department could generally under 20 U.S.C. 1221e–3 and Amendment of the U.S. Constitution; require a recipient to come into 3474. deprive an individual of rights that Current Regulations: Current compliance with Title IX by restoring would otherwise be protected from § 106.3(a) provides that if the Assistant the relevant scholarship, even though governmental action under the Due Secretary for Civil Rights finds that a the restoration will require the payment Process Clauses of the Fifth and recipient has discriminated against a of monies by the recipient. See, e.g., Fourteenth Amendments; or restrict any person on the basis of sex in an Romeo Community Schools v. United other rights guaranteed against education program or activity, the States Dep’t of Health, Education & governmental action by the U.S. recipient shall be required to take Welfare, 600 F.2d 581, 583 (6th Cir. Constitution. remedial action that the Assistant 1979) (emphasis added) (‘‘Romeo Reasons: Despite the language in Secretary deems necessary ‘‘to overcome received a letter from the regional current § 106.6 and the discussions in the effects of such discrimination.’’ director of HEW demanding that it alter Department guidance regarding the due Proposed Regulations: We propose its practices with respect to pregnancy process protections for public school modifying the language to apply to any leave to conform to § 86.57(c) and students and employees and free speech violation of part 106 and adding reimburse and adjust the salaries and rights under the First Amendment (2001 language to § 106.3(a) stating that the retirement credits of any employees Guidance at 22) there appears to be remedial action deemed necessary by who had not been permitted to use significant confusion regarding the the Assistant Secretary shall not include accrued sick leave while on pregnancy intersection of individuals’ rights under assessment of damages. related leave since June 23, 1972. The the U.S. Constitution with a recipient’s Reasons: The proposed changes letter from HEW also required obligations under Title IX. In particular, would clarify, consistent with the assurances from Romeo that it would during listening sessions the Supreme Court’s case law in this area comply with § 86.57, and that Department heard concerns that Title IX and mindful of the difference between reimbursement had been made.’’). Thus, enforcement has had a chilling effect on a private right of action opening the in those narrow instances where a free speech. We are proposing to add door to damages assessed by a court and failure to pay a specific amount for a paragraph (d) to clarify that nothing in the Department’s role administratively specific purpose constitutes the crux of these regulations requires a recipient to enforcing Title IX without express the violation, the resolution can include infringe upon any individual’s rights statutory authority to collect damages, a monetary payment and still be an protected under the First Amendment or that the Assistant Secretary shall not equitable remedy squarely tied to the the Due Process Clauses, or other any assess damages against a recipient. violation the Department identified. other rights guaranteed by the U.S. Gebser, 524 U.S. at 288–89 (‘‘While Notably, this proposed modification Constitution. The language also makes it agencies have conditioned continued does not affect the Department’s clear that, under the Title IX funding on providing equitable relief to statutory authority to suspend or regulations, recipients—including the victim, the regulations do not appear terminate federal funding from a private recipients—are not obligated by

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Title IX to restrict speech or other employee may have against his or her individual is referred to as the behavior that the federal government school under Title VII. ‘‘coordinator,’’ and would alter the could not restrict directly. Consistent required methods for notification. Designation of Coordinator, with Supreme Court case law, the Proposed § 106.8(a) would also remove Dissemination of Policy, Adoption of government may not compel private potentially unclear language in the Grievance Procedures (Current §§ 106.8 actors to restrict conduct that the existing regulation that could be read to and 106.9 and Proposed § 106.8) government itself could not require that the coordinator must be the constitutionally restrict. See e.g., Statute: The statute does not directly one that handles the investigations and Peterson v. City of Greenville, 373 U.S. address the designation of a Title IX otherwise directly carries out the 244 (1963); Truax v. Raich, 239 U.S. 33, Coordinator, the dissemination of recipient’s responsibilities. 38 (1915). Thus, recipients that are policy, or the adoption of grievance We also propose moving the private entities are not required by Title procedures. The Secretary has the ‘‘notification of policy’’ requirement in IX or its regulations to restrict speech or authority to regulate with regard to current § 106.9(a)(1) to proposed other behavior that would be protected discrimination on the basis of sex in § 106.8(b)(1). Proposed § 106.8(b)(1) against restriction by governmental education programs or activities would streamline the list of people entities. This protection against receiving federal financial assistance, whom recipients must notify of its governmental restrictions on specifically under 20 U.S.C. 1682 and policy of non-discrimination based on constitutional rights applies to all the generally under 20 U.S.C. 1221e–3 and sex, and clarify that such a notice must civil rights laws that Department 3474. state that inquiries about application of enforces, but we are adding paragraph Current Regulations: Current Title IX to the recipient may be made to (d) to the Title IX regulations because § 106.8(a) requires a recipient to the recipient’s Title IX Coordinator or the issue arises frequently in the context designate at least one employee to be the Assistant Secretary, or to both. of sexual harassment. When the the ‘‘responsible employee’’ who has the Proposed § 106.8(b)(2) requires Department enforces Title IX and its duty to coordinate the recipient’s efforts recipients to prominently display their accompanying regulations, the to comply with and carry out its Title IX non-discrimination policy on constitutional rights of individuals responsibilities under the regulations, their website (if any) and in each involved in a recipient’s grievance including any investigation of any handbook or catalog that it makes process will always be considered and complaint alleging a recipient’s available to the list of people who must protected. noncompliance with, or actions which be notified in paragraph (b)(1), and would be prohibited by, 34 CFR part prohibits recipients from using or Section 106.6(e) Interaction With 106. Section 106.8(a) also requires distributing publications stating that the FERPA recipients to notify all students and recipient treats applicants, students, or Proposed Regulations: We are also employees of the name, office address, employees differently on the basis of sex proposing to add paragraph (e) to and telephone number of such except as such different treatment is § 106.6 to clarify that obligations under employee or employees. permitted by this part. this part are not obviated or alleviated Title 34 CFR 106.8(b) requires We also propose moving the by the requirements in the FERPA recipients to adopt and publish requirements in current 34 CFR 106.8(b) statute or regulations. grievance procedures providing for to proposed § 106.8(c), with Reasons: In 1994, as part of the prompt and equitable resolution of modifications as proposed below. Improving America’s Schools Act, student and employee complaints of sex Proposed § 106.8(c) would clarify that Congress amended the General discrimination. with respect to sexual harassment, the Education Provisions Act (GEPA), of Title 34 CFR 106.9(a)(1) requires grievance procedures requirements which FERPA is a part, to state that recipients to notify applicants for specifically apply to formal complaints nothing in GEPA ‘‘shall be construed to admission and employment, students as defined in § 106.30. Proposed affect the applicability of . . . title IX of and parents of elementary and § 106.8(c) would also require recipients the Education Amendments of 1972 secondary school students, employees, to provide notice of their grievance . . . .’’ 20 U.S.C. 1221(d). The proposed sources of referral for applicants for procedures to students and employees. regulations under Title IX should be admission and employment, and unions We also propose adding paragraph (d) read to be consistent with a recipient’s or professional organizations holding to § 106.8 to clarify that the policy and obligations under FERPA. collective bargaining agreements or grievance procedures described in this professional agreements with the section need not apply to persons Section 106.6(f) Interaction With Title recipient that it does not discriminate outside the United States. VII on the basis of sex in the education Reasons: Proposed § 106.8(a) would Proposed Regulations: We are also program or activity which it operates. reflect the current reality of Title IX proposing to add paragraph (f) to § 106.6 Such notice must state that inquiries compliance—namely, that recipients to clarify that nothing in the proposed about the application of Title IX may be generally name a Title IX Coordinator regulations shall be read in derogation referred to the employee designated and designate that individual to of an employee’s rights under Title VII pursuant to § 106.8, or to the Assistant coordinate their efforts to comply with of the Civil Rights Act of 1964, 42 U.S.C. Secretary. Title IX. It appears that the phrase ‘‘and 2000e et seq. and its implementing Title 34 CFR 106.9(b) lists the types carry out’’ in the existing regulation regulations. of publications where the recipient shall could be read to suggest that the Title Reasons: Employees of a school may publish its nondiscrimination policy, IX Coordinator must be the one who have rights under both Title IX and Title and 34 CFR 106.9(c) specifies the carries out the recipient’s duties under VII. To the extent that any rights, manner of distribution of such Title IX, rather than allowing the remedies, or procedures differ under publications. coordinator to coordinate the actions of Title IX and Title VII, this provision Proposed Regulations: We are others in carrying out those duties. clarifies that nothing about the proposed proposing to clarify the requirements of Since the phrase is redundant and can regulations is intended to diminish, 34 CFR 106.8(a). Proposed § 106.8(a) be confusing, we propose removing it. restrict, or lessen any rights an would state that the designated In addition, in light of the expansion of

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the regulations elsewhere to expressly publication could be construed to § 106.12(b) is revised to state that even cover investigations of Title IX suggest a policy of sex discrimination if an institution has not sought complaints, the language specifically and instead focus the requirement on assurance of its exemption, the including coordination of such recipients’ express statements of policy. institution may still invoke its religious investigations in the responsibilities of As a result, the requirement would be exemption during the course of any the designated individual would no more clear, both for recipients seeking investigation pursued against the longer be necessary, and would to comply with the requirement and for institution by the Department. therefore be removed. those enforcing the requirement. Reasons: The current regulations Proposed § 106.8(a) would also Because most recipients have websites suggest that the recipients may only modernize the notification requirements on which they must display their Title claim the exemption from paragraph (a) to better ensure that students and IX non-discrimination policy pursuant by submitting a letter to the Assistant employees are aware of how to contact to proposed § 106.8(b)(2), proposed Secretary. The additional language a recipient’s Title IX Coordinator. Given § 106.8(b)(1) streamlines the list of clarifying that the letter to the Assistant the changes in methods of people to whom the recipient must send Secretary is not required to assert the communication since the regulations notice of its policy. Applicants for exemption brings the regulatory were issued in 1975, the proposed admission and employment, students, language into alignment with amendments would require the employees, and employee unions and longstanding Department practice. The recipient to notify students and professional organizations must receive statutory text of Title IX offers an employees of the electronic mail the notice under proposed § 106.8(b)(2). exemption to religious entities without address of the employee or employees Proposed § 106.8(d) would clarify that expressly requiring submission of a designated as Title IX Coordinators, in the recipient’s code of conduct and letter, and the Department believes such addition to providing the coordinator’s grievance procedures apply to all a requirement is unnecessary. The office address and phone number. To students and employees located in the Department should not impose alleviate the administrative and United States with respect to allegations confusing or burdensome requirements financial burden on a recipient to of sex discrimination in an education on religious institutions that qualify for provide a new notice every time it program or activity of the recipient. The the exemption. designates an additional or different statutory language of Title IX limits its Exercise of Rights by Parents/Guardians coordinator, the proposed amendments application to protecting ‘‘person[s] in of Students permit recipients to provide notice of a the United States.’’ 20 U.S.C. 1681(a). coordinator’s name and contact The Department recognizes that when Educational Institutions Controlled by information or, alternatively, simply a a party is a minor, has been appointed Religious Organizations (Current and title with an established method of a guardian, is attending an elementary Proposed § 106.12) contacting the coordinator that does not or secondary school, or is under the age change as the identity of the coordinator Statute: The statute addresses of 18, recipients have the discretion to changes. The Department solicits educational institutions controlled by look to state law and local educational comments on whether larger institutions religious organizations, stating that Title practice in determining whether the of higher education should have a IX ‘‘shall not apply to an educational rights of the party shall be exercised by minimum number of individuals with institution which is controlled by a the parent(s) or guardian(s) instead of or whom individuals can file a complaint religious organization if the application in addition to the party. For example, if of sex discrimination. of this subsection would not be the parent or guardian of a minor Proposed § 106.8(b)(2) would require consistent with the religious tenets of student at an elementary or secondary recipients to prominently display their such organization,’’ 20 U.S.C. school files a complaint on behalf of the non-discrimination policy on their 1681(a)(3), and that the term ‘‘program student, and state law and local websites, if any, and in each handbook or activity’’ ‘‘does not include any educational practice recognize the or catalog made available to the list of operation of an entity which is parent or guardian as the appropriate people to whom notice must be sent controlled by a religious organization if person to exercise that student’s legal under paragraph (b)(1). Proposed the application of section 1681 of this rights, the student would be a § 106.8(b)(2) streamlines the list of title to such operation would not be ‘‘complainant’’ under the proposed required publications that must display consistent with the religious tenets of regulation even though the action of the recipient’s Title IX non- such organization,’’ 20 U.S.C. 1687. filing the complaint was taken by the discrimination policy, to reduce the Current Regulations: Current 34 CFR parent or guardian instead of the burden on recipients (including the 106.12(a) provides an exemption for student. requirement for distribution of written educational institutions controlled by a publications included in current religious organization, to the extent that Directed Questions § 106.9(c)) while still ensuring that the application of the regulation would be The Department seeks additional policy is adequately communicated to inconsistent with the religious tenets of comments on the questions below: all required persons, in light of the the organization. To claim this 1. Applicability of the rule to reality that most recipients have exemption, § 106.12(b) requires elementary and secondary schools. The websites where the non-discrimination recipients to submit a letter to the proposed rule would apply to all policy would have to be prominently Assistant Secretary stating which parts recipients of federal financial assistance, displayed. In addition, proposed of the regulation conflict with a specific including institutions of higher § 106.8(b)(2) would replace the existing tenet of the religion. education and elementary and restriction on publications that suggest Proposed Regulations: We propose secondary schools. The Department is a policy of sex discrimination (either by revising § 106.12(b) to clarify that an interested in whether there are parts of text or illustration) with a restriction on educational institution may—but is not the proposed rule that will be publications that state a policy of sex required to—seek assurance of its unworkable at the elementary and discrimination. This change would religious exemption by submitting a secondary school level, if there are remove the subjective determination of written request for such an assurance to additional parts of the proposed rule whether the illustrations in a the Assistant Secretary. Further, where the Department should direct

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recipients to take into account the age Department is interested in comments period of three years. We seek and developmental level of the parties from the public as to whether the comments on what the appropriate time involved and involve parents or proposed rule adequately takes into period is for this record retention. guardians, and whether there are other account other issues related to the needs 9. Technology needed to grant unique aspects of addressing sexual of students and employees with requests for parties to be in separate harassment at the elementary and disabilities when such individuals are rooms at live hearings. In secondary school level that the parties in a sex discrimination § 106.45(b)(3)(vii) we require Department should consider, such as complaint, or whether the Department institutions of higher education to grant systemic differences between should consider including additional requests from parties to be in separate institutions of higher education and language to address the needs of rooms at live hearings, with technology elementary and secondary schools. students and employees with enabling the decision-maker and parties 2. Applicability of provisions based disabilities as complainants and to see and hear each other on type of recipient or age of parties. respondents. The Department also simultaneously. We seek comments on Some aspects of our proposed requests consideration of the different the extent to which institutions already regulations, for instance, the provision experiences, challenges, and needs of have and use technology that would regarding a safe harbor in the absence of students with disabilities in elementary enable the institution to fulfill this a formal complaint in proposed and secondary schools and in requirement without incurring new § 106.44(b)(3) and the provision postsecondary institutions related to costs or whether institutions would regarding written questions or cross- sexual harassment. likely incur new costs associated with examination in proposed 6. Standard of Evidence. In this requirement. § 106.45(b)(3)(vi) and (vii), differ in § 106.45(b)(4)(i), we are proposing that Executive Orders 12866 and 13563 applicability between institutions of the determination regarding higher education and elementary and responsibility be reached by applying Regulatory Impact Analysis (RIA) secondary schools. We seek comment either a preponderance of the evidence Under Executive Order 12866, the on whether our regulations should standard or the clear and convincing Office of Management and Budget instead differentiate the applicability of standard, and that the preponderance (OMB) must determine whether this these or other provisions on the basis of standard be used only if it is also used regulatory action is ‘‘significant’’ and, whether the complainant and for conduct code violations that do not therefore, subject to the requirements of respondent are 18 or over, in involve sexual harassment but carry the the Executive order and subject to recognition of the fact that 18-year-olds same maximum disciplinary sanction. review by OMB. Section 3(f) of are generally considered to be adults for We seek comment on (1) whether it is Executive Order 12866 defines a many legal purposes. desirable to require a uniform standard ‘‘significant regulatory action’’ as an 3. Applicability of the rule to of evidence for all Title IX cases rather action likely to result in a rule that employees. Like the existing regulations, than leave the option to schools to may— the proposed regulations would apply to choose a standard, and if so then what (1) Have an annual effect on the sexual harassment by students, standard is most appropriate; and (2) if economy of $100 million or more, or employees, and third parties. The schools retain the option to select the adversely affect a sector of the economy, Department seeks the public’s standard they wish to apply, whether it productivity, competition, jobs, the perspective on whether there are any is appropriate to require schools to use environment, public health or safety, or parts of the proposed rule that will the same standard in Title IX cases that State, local, or tribal governments or prove unworkable in the context of they apply to other cases in which a communities in a material way (also sexual harassment by employees, and similar disciplinary sanction may be referred to as an ‘‘economically whether there are any unique imposed. significant’’ rule); circumstances that apply to processes 7. Potential clarification regarding (2) Create serious inconsistency or involving employees that the ‘‘directly related to the allegations’’ otherwise interfere with an action taken Department should consider. language. Proposed § 106.45(b)(3)(viii) 4. Training. The proposed rule would or planned by another agency; requires recipients to provide each party (3) Materially alter the budgetary require recipients to ensure that Title IX with an equal opportunity to inspect impacts of entitlement grants, user fees, Coordinators, investigators, and and review any evidence directly or loan programs or the rights and decision-makers receive training on the related to the allegations obtained as obligations of recipients thereof; or definition of sexual harassment, and on part of the investigation, including the (4) Raise novel legal or policy issues how to conduct an investigation and evidence upon which the recipient does arising out of legal mandates, the grievance process, including hearings, not intend to rely in reaching a President’s priorities, or the principles that protect the safety of students, determination regarding responsibility, stated in the Executive order. ensures due process for all parties, and and provide each party with an equal Under Executive Order 12866,14 promotes accountability. The opportunity to respond to that evidence section 3(f)(1), the changes made in this Department is interested in seeking prior to completion of the investigative regulatory action materially alter the comments from the public as to whether report. The ‘‘directly related to the rights and obligations of recipients of this requirement is adequate to ensure allegations’’ language stems from federal financial assistance under Title that recipients will provide necessary requirements in FERPA, 20 U.S. Code IV of the Higher Education Act of 1965 training to all appropriate individuals, 1232g(a)(4)(A)(i). We seek comment on (Title IV). Therefore, the Secretary including those at the elementary and whether or not to regulate further with certifies that this is a significant secondary school level. regard to the phrase, ‘‘directly related to regulatory action subject to review by 5. Individuals with disabilities. The the allegations’’ in this provision. OMB. Also under Executive Order proposed rule addresses the rights of 8. Appropriate time period for record 12866 and the Presidential students with disabilities under the retention. In § 106.45(b)(7), we are IDEA, Section 504, and Title II of the proposing that a recipient must create, 14 Exec. Order No. 12866, Regulatory Planning ADA in the context of emergency make available to the complainant and and Review, 58 FR 190 (Oct. 4, 1993), removals (proposed § 106.44(c)). The respondent, and maintain records for a www.reginfo.gov/public/jsp/Utilities/EO_12866.pdf.

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Memorandum ‘‘Plain Language in techniques to quantify anticipated damages as a remedy for violations Government Writing,’’ the Secretary present and future benefits and costs as under Title IX, and that recipients that invites comment on how easy these accurately as possible.’’ The Office of qualify for a religious exemption under regulations are to understand in the Information and Regulatory Affairs of Title IX need not submit a letter to the Clarity of the Regulations section. OMB has emphasized that these Department as a prerequisite to claiming Under Executive Order 13771, for techniques may include ‘‘identifying the exemption. each new regulation that the changing future compliance costs that 2. Discussion of Costs, Benefits, and Department proposes for notice and might result from technological Transfers comment or otherwise promulgates that innovation or anticipated behavioral is a significant regulatory action under changes.’’ The Department has analyzed the Executive Order 12866 and that imposes We are issuing these proposed costs and benefits of complying with total costs greater than zero, it must regulations only on a reasoned these proposed regulations. Due to the identify two deregulatory actions. For determination that their benefits justify number of affected entities, the variation FY 2019, no regulations exceeding the their costs. Based on the analysis that in likely responses, and the limited agency’s total incremental cost follows, the Department believes that information available about current allowance will be permitted, unless these regulations are consistent with the practices, particularly at the local required by law or approved in writing principles in Executive Order 13563. educational agency (LEA) level, we by the Director of the Office of We also have determined that this cannot estimate the likely effects of Management and Budget. The proposed regulatory action does not unduly these proposed regulations with regulations are a significant regulatory interfere with State, local, or tribal absolute precision. The Department action under E.O. 12866 but do not governments in the exercise of their specifically invites public comment on: impose total costs greater than zero. governmental functions. Data sources which would provide Accordingly, the Department is not In this RIA we discuss the need for comprehensive information regarding required to identify two deregulatory regulatory action, the potential costs current practices in Title IX actions under E.O. 13771.15 and benefits, assumptions, limitations, enforcement, information regarding the We have also reviewed these and data sources, as well as regulatory number of recipients in each analytical proposed regulations under Executive alternatives we considered. Although group described in section 4.b below, Order 13563, which supplements and the majority of the costs related to and time estimates for the activities explicitly reaffirms the principles, information collection are discussed described in 4.c disaggregated by type of structures, and definitions governing within this RIA, elsewhere in this notice recipient. Despite these limitations, we regulatory review established in under Paperwork Reduction Act of 1995 estimate that these regulations would Executive Order 12866. To the extent we also identify and further explain result in a net cost savings of between permitted by law, Executive Order burdens specifically associated with $286.4 million to $367.7 million over 13563 requires that an agency— information collection requirements. ten years. (1) Propose or adopt regulations only 1. Need for Regulatory Action on a reasoned determination that their 3. Benefits of the Proposed Regulations benefits justify their costs (recognizing Based on its extensive review of the The proposed regulatory action will that some benefits and costs are difficult critical issues addressed in this result in recipients better understanding to quantify); rulemaking, the Department has their legal obligations to address sexual (2) Tailor its regulations to impose the determined that current regulations and harassment under Title IX by providing least burden on society, consistent with guidance do not provide sufficiently a legal framework for recipients’ obtaining regulatory objectives and clear standards for how recipients must responses to sexual harassment that taking into account—among other things respond to incidents of sexual ensures all reports of sexual harassment and to the extent practicable—the costs harassment, including defining what are treated seriously and all persons of cumulative regulations; conduct constitutes sexual harassment. accused are given due process (3) In choosing among alternative To address this concern, we propose protections before being disciplined for regulatory approaches, select those this regulatory action to address sexual sexual harassment. The proposed approaches that maximize net benefits harassment under Title IX for the regulatory action will correct problems (including potential economic, central purpose of ensuring that identified by the Department with the environmental, public health and safety, recipients understand their legal current framework governing sexual and other advantages; distributive obligations, including what conduct is harassment (under current regulations impacts; and equity); actionable as harassment under Title IX, and guidance), such as recipients not (4) To the extent feasible, specify the conditions that activate a mandatory understanding their duties and performance objectives, rather than the response by the recipient, and particular responsibilities and a lack of robust due behavior or manner of compliance a requirements that such a response must process protections in recipient regulated entity must adopt; and meet in order to ensure that the grievance procedures under Title IX. In (5) Identify and assess available recipient is protecting the rights of all addition, the proposed regulatory action alternatives to direct regulation, its students to equal access to education will correct capturing too wide a range including economic incentives—such as free from sex discrimination. of misconduct resulting in infringement user fees or marketable permits—to In addition to addressing sexual on academic freedom and free speech. encourage the desired behavior, or harassment, the Department has provide information that enables the concluded it is also necessary to amend 4. Costs of the Proposed Regulations public to make choices. three parts of the existing regulations These proposed regulations would Executive Order 13563 also requires that apply to all sex discrimination among other things: Define sexual an agency ‘‘to use the best available under Title IX. We propose expressly harassment for Title IX purposes; clarify stating that Title IX does not require when a recipient’s obligation to 15 Exec. Order No. 13771, Reducing Regulation and Controlling Regulatory Costs, 82 FR 22 (Jan. 30, recipients to infringe upon existing investigate a complaint of sexual 2017), www.gpo.gov/fdsys/pkg/FR-2017-02-03/pdf/ constitutional protections, that the harassment is activated; define the 2017-02451.pdf. Department may not require money minimum requirements of grievance

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procedures for Title IX purposes; incidents that may result in a Title IX applied to two-year and less-than-two- establish a process for informal investigation. Indeed, when the year institutions within the same resolution of sexual harassment claims; Department examined public reports of category using the average number of and require appropriate documentation Title IX reports and investigations at 55 sexual offenses reported under the Clery of all Title IX complaints and IHEs nationwide, incidents of sexual Act for such institutions to arrive at an investigations. misconduct represented, on average, 45 average number of investigations per Prior to discussing the Department’s percent of investigations conducted. year by size and level of institution. estimates, we believe it is important to Further, a number of the types of These estimates were then weighted by emphasize that these estimates are not incidents that were categorized as the number of Title IV-eligible an attempt to quantify the economic ‘‘sexual misconduct’’ in those reports institutions in each category to arrive at effects of sexual harassment, broadly, or may, or may not, have been categorized an estimated average 2.36 investigations sexual assault, specifically. Other as ‘‘sexual violence,’’ depending on the of sexual harassment per IHE per year.18 studies 16 have attempted to quantify survey respondent. To address the fact To the extent that the number of such costs and, while incidents of that the subcommittee report may fail to investigations and the number of Clery sexual assault may have real economic capture all incidents of sexual Act reports of sexual offenses are not consequences, these estimates are only misconduct at responding IHEs, the uniformly correlated across types of intended to capture the economic Department first top-coded the survey institutions (i.e., less-than-two-year, impacts of this proposed regulatory data. To the extent that survey two-year, and four-year), this may action. The Department does not believe respondents treated the terms ‘‘sexual represent an over- or-under-estimate of it is reasonable to assume that these misconduct’’ and ‘‘sexual violence’’ the actual number of investigations per proposed regulations will have a interchangeably, this top-coding IHE per year. We invite the public to quantifiable effect on the underlying approach may result in an overestimate provide any pertinent evidence on rate of sexual harassment occurring in of the number of sexual misconduct determining investigations of sexual the education programs or activities of investigations conducted at institutions. harassment per IHE per year to improve recipients. As a result, we do not By top-coding the ranges (e.g., ‘‘5’’ for our baseline estimates. attempt to capture costs that arise out of any respondent indicating ‘‘2–5’’) and The Department does not have the underlying incidents themselves, assuming 50 investigations for any information on the average number of but rather those associated with the respondent indicating more than 10 investigations of sexual harassment actions prescribed by the proposed investigations, the Department was able occurring each year in LEAs. As part of regulations and the likely response of to estimate the average number of sexual the Civil Rights Data Collection (CRDC), regulated entities to those proposed misconduct investigations conducted by the Department does, however, gather requirements. four-year institutions in each size information on the number of incidents of harassment based on sex in LEAs 4.a. Establishing a Baseline category. We then divided this estimate by five to arrive at an estimated number each year. During school year 2015– To accurately estimate the costs of of investigations per year. To address 2016, LEAs reported an average of 3.23 these proposed regulations, the the fact that incidents of sexual of such incidents. Therefore, the Department needed to establish an misconduct only represent a subset of Department assumes that LEAs, on appropriate baseline for current all Title IX investigations conducted by average, currently conduct practice. In doing so, it was necessary to IHEs in any given year, we then approximately 3.23 Title IX know the current number of Title IX multiplied this result by two, assuming investigations each year. We invite investigations occurring in LEAs and (consistent with our convenience public comment on the extent to which institutions of higher education (IHEs) sample of public Title IX reporting) that this is a reasonable assumption. eligible for Title IV federal funding. In sexual misconduct investigations 4.b. Developing the Model 2014, the U.S. Senate Subcommittee on represented approximately 50 percent of After the Department issued guidance Financial and Contracting Oversight all Title IX investigations conducted by 17 regarding Title IX compliance in 2011, released a report which included institutions. survey data from 440 four-year IHEs the Department noted a much larger regarding the number of investigations Because the report only surveyed number of incidents of sexual of sexual violence that had been four-year institutions, the Department harassment being reported to and conducted during the previous five year needed to impute similar data for two- investigated by LEAs and IHEs each period. Two of the five possible year and less-than-two-year institutions, year. In 2017, the Department rescinded responses to the survey were definite which represent approximately 57 that guidance and published alternative, numbers (0, 1), while the other three percent of all Title IV-eligible interim guidance while this proposed were ranges (2–5, 6–10, >10). Responses institutions. In order to do so, the regulatory action was underway. The were also disaggregated by size of Department analyzed sexual offenses Department reaffirmed that the interim institution (Large, Medium, or Small). reported under the Clery Act and guidance is not legally binding on Although the report does not clearly combined those data with total recipients. Wiersma-Mosley and identify a definition of ‘‘sexual enrollment information from the DiLoreto 19 did not identify substantial violence’’ provided to survey Integrated Postsecondary Education respondents, the term would appear to Data System (IPEDS) for all Title IV- 18 To determine the sensitivity of this estimate to capture only a subset of the types of eligible institutions within the United our coding of the survey data, the Department also States. Assuming that the number of conducted these analyses by coding the data using medians for each range (e.g., 3.5 for the ‘‘2–5’’ 16 See, e.g., Cora Peterson et al., Lifetime reports of sexual offenses under the range) with a code of 30 for the ‘‘>10’’ group and Economic Burden of Rape Among U.S. Adults, 52 Clery Act is positively correlated with by top-coding using a 100 for the ‘‘>10’’ group. Am. J. of Preventative Med. 691 (2017). the number of investigations, the These alternative approaches would result in 17 Claire McCaskill, S. Subcomm. on Financial Department arrived at a general rate of baseline estimates ranging from 1.48 to 4.31 Contracting Oversight—Majority Staff, Sexual investigations per year per IHE. Violence on Campus, 113th Cong. (2014), https:// investigations per reported sexual 19 Jacquelyn D. Wiersma-Mosley and James www.mccaskill.senate.gov/SurveyReport offense at four-year IHEs by institutional DiLoreto, The Role of Title IX Coordinators on withAppendix.pdf. enrollment. These rates were then Continued

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rollback of Title IX activities among generally risk averse regarding Title IX level, we assume the Title IX IHEs compared to Richards,20 who compliance, and so we assume that very Coordinator and lawyer would spend found substantial changes relative to few would have adjusted their more time reviewing the regulations, at Karjane, Fisher, and Cullen.21 enforcement efforts after the rescission 8 hours and 16 hours, respectively. This Consistent with those studies, we of the 2011 DCL or the 2014 Q&A or results in a total cost of $29,732,680 in believe it is highly likely that a subset would have failed to align their Year 1. of recipients have continued Title IX activities with the guidance initially. We also assume that recipients would enforcement in accordance with the Therefore, we estimate that only 5 be required to revise their grievance prior, now rescinded guidance, due to percent of LEAs and 5 percent of IHEs procedures to ensure compliance with the uncertainty of the regulatory fall into Group 1.22 Given the the proposed regulations. Although the environment, and that it is reasonable to particularly acute financial constraints requirements of these proposed assume that some subset of recipients on LEAs, we assume that a vast majority regulations closely mirror requirements either never complied with the 2011 (90 percent) will fall into Group 2— in other regulations and statutes, we DCL or the 2014 Q&A or amended their meeting all requirements of the assume that all recipients will need to compliance activities after the rescission proposed regulations and applicable revise their procedures. We believe that of that guidance. We do not, however, laws, but not using limited resources to revising grievance procedures at the know with absolute certainty how many maintain a Title IX compliance structure LEA level will require the work of the recipients fall into each category, beyond such requirements. Among Title IX Coordinator for 4 hours and a making it difficult to accurately predict IHEs, we assume that, for a large subset lawyer for 16 hours. At the IHE level, the likely effects of this proposed of recipients, various pressures will we assume this would require the Title regulatory action. result in retention of the status quo in IX Coordinator devote 8 hours and a In general, the Department assumes every manner that is permitted under lawyer devote 32 hours. In total, we that recipients fall into one of three the proposed regulations. These estimate the cost of revising grievance groups: (1) Recipients who have institutions are voluntarily assuming procedures to be approximately complied with the statutory and higher costs than the regulations $51,603,180 in Year 1. regulatory requirements and either did require. Nonetheless, our model does The proposed regulations also require not comply with the 2011 DCL or the account for their decision to do so, and recipients to post nondiscrimination 2014 Q&A or who reduced Title IX we only assume that 50 percent of IHEs statements on their websites as required activities to the level required by statute experience any cost savings from these under the existing regulation. We and regulation after the rescission of the proposed regulations (placing them in assume, however, that this is already 2011 DCL or the 2014 Q&A and will Group 2). Therefore, we estimate that standard practice for many recipients. continue to do so; (2) recipients who Group 3 will consist of 5 percent of We assume that 40 percent of LEAs and continued Title IX activities at the level LEAs and 45 percent of IHEs. We invite 20 percent of IHEs 25 will need to do required by the 2011 DCL or the 2014 public comment on the extent to which work to post these statements. At the Q&A but will amend their Title IX the estimated number of entities in each LEA level, we assume that this work activities to the level required under group is appropriate, or whether will require 0.5 hours from the Title IX current statute and the proposed recipients would expect costs or costs Coordinator, 0.5 hours from a lawyer, regulations issued in this proceeding; savings from the proposed regulations, and 2 hours from a web developer (at and (3) recipients who continued Title and why. $44.12 per hour). At the IHE level, we IX activities at the level required under Unless otherwise specified, our model assume this would require 1 hour from the 2011 DCL or the 2014 Q&A and will uses median hourly wages for personnel the Title IX Coordinator, 1 hour from a continue to do so after final regulations employed in the education sector as lawyer, and 2 hours from a web are issued. In this structure, we believe reported by the Bureau of Labor developer. We estimate the total cost of that recipients in the second group are Statistics 23 and an employer cost for posting nondiscrimination statements most likely to experience a net cost employee compensation rate of 1.46.24 on the recipient’s website will cost savings under these proposed $1,347,520 in Year 1. regulations. We therefore only estimate 4.c. Cost Estimates The proposed regulations also require savings for this group of recipients. To We assume that, once the Department relevant staff to receive training on the the extent that recipients in the other issues final regulations, all recipients requirements of Title IX. Although two groups experience savings, we will need to review the regulations. At recipients may currently engage in herein underestimate the savings from the LEA level, we assume this would annual training of Title IX staff,26 we this proposed action. We note that we involve the Title IX Coordinator assume that all recipients will conduct calculate some increased costs for (assuming a loaded wage rate of $65.22 new or revised training aligned with recipients in all three categories. per hour for educational administrators) these proposed regulations. We assume In estimating the number of recipients for 4 hours and a lawyer (at a rate of that the training will take 16 hours each in each group, we assume that most $90.71 per hour) for 8 hours. At the IHE for the Title IX Coordinator, the LEAs and Title IV-eligible IHEs are investigator, and a decision-maker at 22 If our estimates were revised to increase the both the LEA and IHE level for a total College and University Campuses, 8 Behav. Sci. 1, number of recipients in this group, our calculated estimated cost of approximately 5–6 (2018), available at https://www.mdpi.com/ net savings would be reduced. See section 4.e. 2076-328X/8/4/38/htm (click on ‘‘Full-Text PDF’’). Sensitivity Analysis for more information. $14,458,650 in Year 1. We do not 20 Tara N. Richards, An updated review of 23 U.S. Dept. of Labor, Bureau of Labor Statistics, institutions of higher education’s (IHEs) response to May 2017 National Industry-Specific Occupational 25 Richards, supra note 20, at 11 and Wiersma- sexual assault: Results from a nationally Employment and Wage Estimates: Sector 61— Mosley & DiLoreto, supra note 19, at 5 found that representative sample, J. of Interpersonal Violence Educational Services (Mar. 30, 2018), https:// approximately 80 percent of IHEs (81 percent and 1, 11–12 (2016). www.bls.gov/oes/current/naics2_61.htm. 79 percent, respectively) posted their policies and 21 Heather M. Karjane, Bonnie S. Fisher, and 24 U.S. Dept. of Labor, Bureau of Labor Statistics, procedures. Francis T. Cullen, Educ. Development Ctr., Inc., Economic News Release: Table 1. Civilian Workers, 26 Angela F. Amar et al., Administrators’ Campus Sexual Assault: How America’s Institutions by Major Occupational and Industry Group (Sept. perceptions of college campus protocols, response, of Higher Education Respond 62–94 (2002), https:// 18, 2018), https://www.bls.gov/news.release/ and student prevention efforts for sexual assault, 29 www.ncjrs.gov/pdffiles1/nij/grants/196676.pdf. ecec.t01.htm. Violence Vict. 167 (2014).

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calculate additional costs in future years we estimate that each IHE in Group 2 an additional individual seeking out as we assume that recipients will will experience a reduction in the such already covered services. Second, resume training of staff one their prior number of Title IX investigations of even if we were able to identify the schedule after Year 1. approximately 0.93 per year.28 marginal cost of the provision of such The proposed regulations require At the LEA level, given the lack of services to the recipient, it would be recipients to conduct an investigation information regarding the actual number difficult to accurately capture the only in the event of a formal complaint of investigations conducted each year, portion of that cost attributable to the of sexual harassment. In reviewing a the Department assumes that only 50% referral by the Title IX coordinator sample of public Title IX documents, of the incidents reported in the CRDC rather than to the underlying reported the Department noted that larger IHEs would result in a formal complaint, for harassment. For example, Krebs et al.30 were more likely than smaller IHEs to a reduction in the number of found that 22 percent of victims of conduct investigations only in the event investigations of 1.62 per year. We forced sexual assault sought out of formal complaints, as opposed to invite the public to provide any psychological counseling, 11 percent investigating all reports they received. information on the extent to which this moved residences, and 8 percent Consistent with this observation, the is a reasonable assumption. dropped a class. It is difficult to assess Department found that the rate of To be clear, these estimates are not what marginal impact these proposed average investigations relative to the meant to discourage recipients from regulations would have on the number of reports of sexual offenses investigating at a higher rate. Nor do likelihood of complainants and under the Clery Act was lower at large these estimates of a decrease in respondents taking such actions. In the (more than 10,000 students) four-year investigations predict a decrease in event that a clear fee exists for a institutions than it was at smaller four- recipient’s obligation to respond in particular service that the recipient year institutions. As a result, the some appropriate way to a report of would waive in accordance with these Department used the Clery Act data to sexual harassment. For example, as proposed regulations, we could impute the likely effect of these noted earlier, nothing in the proposed calculate a cost arising from the lost proposed regulations on various regulations would prevent a recipient revenue to the recipient. Due to the lack institutions. Specifically, we assume from initiating a student conduct of adequate information about such fee that, under these regulations, the gap in proceeding or offering supportive structures and the highly personalized the rate of investigations between large measures to students who report sexual nature of supportive measures provided IHEs and smaller ones would decrease harassment that occurs outside the to complainants and respondents, we by approximately 50 percent. Therefore, recipient’s education program or cannot at this time provide such we estimate that the requirement to activity. estimates with any precision. We invite Although we estimate that the number investigate only in the event of formal the public to provide any information of investigations under the proposed complaints would result in a reduction on the relative fees that may be waived regulations will decrease at both the IHE in the average number of investigations by recipients as a result of these and LEA levels, Title IX Coordinators per IHE per year of 0.75. This reduction proposed regulations and the frequency is equivalent to all IHEs in Group 2 are still expected to respond to informal complaints or reports. Such responses with which such measures are experiencing a reduction in implemented. investigations of approximately 32 will not be dictated by the recipient’s grievance procedures, but may involve We assume that the provision of percent. In addition, the proposed supportive measures will take regulations only require investigations talking with the reporting party, approximately 3 hours per report for in the event of sexual harassment within discussing options, connecting him or Title IX coordinators and 8 hours for an a recipient’s education program or her with relevant on- or off-campus administrative assistant at the LEA activity. Again, assuming that Clery Act resources, conducting some sort of level. At the IHE level, we estimate that reports correlate with all incidents of further investigation, and other it would require 3 hours per incident for sexual harassment (as defined in these supportive measures.29 Although the the Title IX coordinator and 16 hours for proposed regulations), we assume a proposed regulations require such an administrative assistant. We further reduction in the number of supportive measures to be offered therefore estimate that the response to investigations per IHE per year of without fee or charge, we do not informal complaints will cost approximately 0.18, using the number of estimate specific costs associated with approximately $5,356,590 per year. non-campus, public property, and the provision of particular supportive At the LEA level, we assume that the reported-by-police reports as a proxy for measures. We have chosen not to average response to a formal complaint the number of off-campus sexual include such costs for several reasons. will require 8 hours from the Title IX harassment investigations currently First, in many instances, particular Coordinator, 16 hours for an being conducted by IHEs.27 As a result, services are already offered without fee or cost to students. For example, many administrative assistant, one hour each 27 The Department notes that this likely IHEs offer free mental health services to for two lawyers (assuming both parties 31 represents a severe under-estimate of the actual students. In such an instance, it is obtain legal counsel), 20 hours from proportion of incidents of sexual harassment that difficult to identify the marginal cost of an investigator, and 8 hours from a occur off-campus. According to a study from United decision-maker. We also assume that, in Educators, approximately 41 percent of sexual assault claims examined occurred off-campus. investigation to 30 percent (rather than the current 75 percent of LEAs, the Title IX United Educators, Facts from United Educator’s 11 percent), the estimated cost savings of these Report Confronting Campus Sexual Assault (2015), proposed regulations would increase to 30 Christopher P. Krebs et al.,The Campus Sexual https://www.ue.org/sexual_assault_claims_study/. approximately $359 to $456 million over ten years. Assault (CSA) Study: Final Report, Nat’l Inst. of Nonetheless, it is likely that some subset of these 28 We note that the alternative coding options Just. (2007), https://www.ncjrs.gov/pdffiles1/nij/ incidents occurred ‘‘under’’ the recipients’ discussed above would result in an estimated grants/221153.pdf. ‘‘education program or activity’’ and would still reduction in the number of investigations each year 31 This average is based on the assumption that require a response by the recipient. If the between 0.60 and 1.58. in a significant number of cases at the LEA level, Department were to assume 25 percent of those 29 Amar et al. supra note 26, at 174 identified the either or both of the parties will choose to proceed incidents required investigation under the proposed most common campus services provided at the IHE without an attorney, or with a non-attorney advisor, rules and increased its estimate of the number of level were mental health services, health services, such that the average cost for advisors will be two off-campus incidents that would no longer require law enforcement, and victim assistance/advocacy. attorney hours.

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coordinator also acts as the decision- additional cost associated with this Title IX coordinator, 8 hours from an maker, which would not be allowable provision beyond those outlined above, administrative assistant, one hour each under the proposed regulations. given that the use of hearing boards has from two lawyers, and 8 hours from a Assuming a reduction in the average become a relatively common practice at decision-maker. At the IHE level, we number of investigations of 1.62 per the IHE level.32 assume each appeal will require 12 LEA per year and the use of an In addition, the proposed regulations hours from a Title IX coordinator, 20 independent decision-maker in each allow for formal complaints to be hours from an administrative assistant, investigation, these proposed informally resolved. We assume that 10 10 hours each from 2 lawyers, and 8 regulations would result in a cost percent of all formal complaints at the hours from a decision-maker. In total, savings of $57,136,120 per year at the LEA and IHE level would be resolved we estimate the appeals process will LEA level. through informal resolution.33 In such cost approximately $20,770,220 per At the IHE level, we assume that the instances at the LEA level, we assume year. To the extent that IHEs choose not average response to a formal complaint the Title IX Coordinator and to offer appeals, this calculation would would require 24 hours from the Title administrative assistant will each have represent an overestimate of actual IX Coordinator, 40 hours from an to dedicate 4 hours beyond what they burden. administrative assistant, 40 hours each would have for a full adjudication to The proposed regulations require for 2 lawyers (assuming both parties reflect the potential additional recipients to maintain certain obtain counsel), 40 hours for an administrative tasks associated with this documentation regarding their Title IX investigator, and 16 hours for a approach. Nonetheless, we estimate that activities. We assume that the proposed decision-maker. We note that, under informal resolution will save half of the recordkeeping and documentation these proposed regulations, recipients time outlined above for lawyers and requirements would have a higher first are required to provide parties with investigators, and save the full year cost associated with establishing advisors to conduct cross-examination if estimated time commitment of decision- the system for documentation with a they do not have an advisor present. makers. At the IHE level, we assume lower out-year cost for maintaining it. Given that our estimates assume all similar time savings for lawyers, At the LEA level, we assume that the parties obtain counsel, we do not investigators, and decision-makers, with Title IX Coordinator would spend 4 believe that this additional requirement Title IX Coordinators and administrative hours in Year 1 establishing the system would result in an increased cost not assistants each dedicating an additional and an administrative assistant would otherwise captured by our estimates. 8 hours per case. In total, we assume spend 8 hours doing so. At the IHE Consistent with Wiersma-Mosley and informal resolution will result in a cost level, we assume recipients are less DiLareto, we also assume that the Title savings of approximately $3,414,980 per likely to use a paper filing system and IX coordinator serves as the decision- year. are likely to use an electronic database maker in 60 percent of IHEs. Assuming The proposed regulations also require for managing such information. an average reduction of 0.0.93 grievance procedures to include the Therefore, we assume it will take a Title investigations per year per IHE and the opportunity for both parties to appeal if IX Coordinator 24 hours, an use of independent decision-makers, we an appeal is offered. Richards indicates administrative assistant 40 hours, and a estimate these proposed regulations to that approximately 84 percent of IHEs database administrator ($50.71) 40 result in a net cost savings of have an appeals process. For purposes hours to set up the system for a total $41,440,300 per year at the IHE level. of these estimates, we assume that any Year 1 estimated cost of approximately We recognize that some recipients recipient in Group 3, as described in $38,836,760. may currently conduct investigations in section 4.b, currently operates an In later years, we assume that the a manner with a less robust due process appeals process. However, all recipients systems will be relatively simple to framework than what would be required in Groups 1 and 2 would need to maintain. At the LEA level, we assume under the proposed regulations. For institute such a structure. Given that it will take the Title IX Coordinator 2 these recipients, included in Group 1 as many recipients in Groups 1 and 2 may hours and an administrative assistant 4 described in section 4.b, the regulations currently operate an appeals process, hours to do so. At the IHE level, we may result in an increased cost per this approach would overestimate the assume 4 hours from the Title IX investigations. At the LEA level, we costs of these proposed regulations. Coordinator, 40 hours from an assume these regulations would require Based on our review of Title IX administrative assistant, and 8 hours 2 additional hours from the Title IX documents from various institutions, we from a database administrator. In total, coordinator, 4 hours from an assume that approximately 50 percent of we estimate an ongoing cost of administrative assistant, 1 hour each investigations taken through to a approximately $15,189,260 per year. from two lawyers, 10 additional hours determination of responsibility will In total, the Department estimates from an investigator, and 8 additional result in an appeal by either party. We these proposed regulations will result in hours from a decision-maker per assume that, at the LEA level, each a net cost savings of approximately investigation, for a total increased cost appeal will require 4 hours from the $286.4 million to $367.7 million over of approximately $1,609,200 per year. ten years on a net present value basis. At the IHE level, we assume that these 32 Amar et al., supra note 26, at 172–3 found that 4.d. Other Issues in the Proposed proposed regulations would require an approximately 87 percent of institutions used a additional 6 hours from a Title IX hearing board which typically involved students, Regulations coordinator, 10 hours from an faculty, staff, and administrators. To the extent that The proposed regulations address administrative assistant, 20 hours each these proposed regulations result in IHEs reducing three topics that do not involve a the membership of hearing boards to, for example, from two lawyers, 20 hours from an a single decision-maker, these regulations would recipient’s response to sexual investigator, and 16 hours from a result in additional cost savings not otherwise harassment and which the Department decision-maker, for a total increased captured here. estimates will not result in any net cost cost of $2,829,570 per year. 33 This figure likely represents an underestimate or benefit to regulated entities. of the actual number that would be resolved We note that the proposed regulations informally. Wiersma-Mosley & DiLoreto, supra note First, the proposed regulations require a hearing for formal complaints 19, at 6, report that 34 percent of cases were emphasize that nothing about at the IHE level. We do not estimate any resolved through informal resolution. enforcement of Title IX shall require the

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Department or a recipient to violate the because no new act is required of assess the robustness of our estimates, constitutional rights of any person. The recipients. we have conducted nine different Departments estimates that there are no Third, the proposed regulations simulations of our model with varying costs or cost savings arising from this clarify that a religious institution is not combinations of an upper, lower, and proposed provision because it does not required to preemptively submit a current estimate for each of these two require any new act on the part of a written letter to the Department to claim factors. Regarding the upper bound for recipient. the religious exemption from Title IX the number of recipients that will not Second, the proposed regulations provided for by statute. There is no cost conduct activities beyond those state that money damages shall not be associated with the proposed regulation required for compliance with the final required by the Department as a remedy concerning religious institutions regulations, we assume 100 percent of for a recipient’s violation of Title IX or because the proposed regulation simply LEAs and 85 percent of IHEs. For the its regulations. The Department’s OCR clarifies that such institutions do not lower bound, we assume 50 percent of generally does not impose money need to submit a written letter to the LEAs and 33 percent of IHEs. In both damages as a remedy under Title IX; Department to claim the religious instances, we assume the remainder of however, occasionally OCR does require exemption available under the Title IX recipients are in Group 3. As discussed a recipient to pay sums of money as statute, and does not require any new above, alternative coding of reimbursement to remedy a Title IX action by recipients. investigation rate data would have violation. Although the number of resulted in an estimated reduction in 4.e. Sensitivity Analysis instances in which OCR imposes money the number of investigations per IHE per damages is minimal, the Department The Department’s estimated costs and year ranging from 0.60 to 1.58. wishes to emphasize through the benefits for these proposed regulations Therefore, these estimates served as our proposed regulation that any remedy are largely driven by two assumptions: upper and lower bound estimates for involving payment of money must be The number of recipients that will not those institutions with a 25 percent to linked to bringing the recipient into conduct activities beyond those 75 percent reduction for LEAs. The compliance with Title IX, rather than required for compliance with the final estimated net present value of each of falling into a category of imposing regulations, and the change in the these alternative models, discounted at money damages. There is no cost number of investigations conducted seven percent, is included in the table associated with this proposed regulation each year by each of those recipients. To below.34

TABLE 1—SENSITIVITY ANALYSIS

Number of recipients reducing number of investigations Upper bound Primary estimate Lower bound

Estimated reduction in investigations per recipient ...... Upper Bound ...... ($820,648,142) ($431,940,097) ($221,468,788) Primary Estimate (534,363,019) (286,449,261) (110,309,915) Lower Bound ...... (388,322,321) (210,250,875) (53,605,189)

Based on this analysis, the was rejected by the Department for the serious issue subject only to non-legally Department believes that its evaluation reasons expressed in the preamble to binding guidance rather than regulatory of the likely costs and benefits is these proposed regulations; the prescriptions. The lack of legally accurate in assuming these proposed procedural and substantive problems binding standards would leave regulations would result in a net cost with the 2011 DCL and the 2014 Q&A survivors of sexual harassment with savings to recipients over a ten year that prompted the Department to fewer legal protections and persons period. Although we believe the rescind that guidance remained as accused of sexual harassment with no estimates presented herein are concerning now as when the guidance predictable, consistent expectation of conservative estimates of savings, even was rescinded, and the Department the level of fairness or due process extreme lower bound estimates result in determined that restoring that guidance available from recipients’ grievance a calculated net cost savings. would once again leave recipients procedures. Alternative (3) was rejected 5. Regulatory Alternatives Considered unclear about how to ensure they by the Department because the problems The Department considered the implemented prompt and equitable with the status quo regarding recipients’ following alternatives to the proposed grievance procedures. Alternative (1) Title IX procedures, as identified by regulations: (1) Leaving the current was rejected by the Department because numerous stakeholders and experts, regulations and current guidance in even though current regulations require made it clear that a regulation that was place and issuing no proposed recipients to have grievance procedures too vague or broad (e.g., ‘‘Provide due regulations at all; (2) leaving the current providing for ‘‘prompt and equitable’’ process protections before disciplining a regulations in place and reinstating the resolution of sex discrimination student for sexual harassment’’) would 2011 DCL or the 2014 Q&A; and (3) complaints, current regulations are not provide sufficient predictability or issuing proposed regulations that added entirely silent on whether Title IX and consistency across recipients to achieve to the current regulations broad those implementing regulations cover the benefits sought by the Department. statements of general principles under sexual harassment; addressing a crucial After careful consideration of various which recipients must promulgate topic like sexual harassment through alternatives, the Department believes grievance procedures. Alternative (2) guidance would unnecessarily leave this that the proposed regulations represent

34 We note that a three percent discount rate would result in larger estimated savings over the ten year time horizon.

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the most prudent and cost effective way seriously and all persons accused of classification of the expenditures of achieving the desired benefits of (a) sexual harassment are treated fairly. associated with the provisions of these ensuring that recipients know their proposed regulations. This table 6. Accounting Statement specific legal obligations with respect to provides our best estimate of the responses to sexual harassment and (b) As required by OMB Circular A–4, in changes in annual monetized costs, ensuring that schools and colleges take the following table we have prepared an benefits, and transfers as a result of the all reports of sexual harassment accounting statement showing the proposed regulations.

TABLE 2—ACCOUNTING STATEMENT

Category Benefits

Clarity, specificity, and permanence with respect to recipient schools and colleges knowing their legal obli- Not Quantified. gations under Title IX with respect to sexual harassment. A legal framework for schools’ and colleges’ response to sexual harassment that ensures all reports of sex- Not Quantified. ual harassment are treated seriously and all persons accused are given due process before being dis- ciplined for sexual harassment. Preserve constitutional rights, assure recipients that monetary damages will not be required by the Depart- Not Quantified. ment, recognize religious exemptions in the absence of written request. Costs 7% 3%

Reading and understanding the rule ...... $3,956,322 $3,384,055 Revision of grievance procedures ...... 6,866,478 5,873,268 Posting of non-discrimination statement ...... 179,305 153,369 Training of Title IX Coordinators, investigators, decision-makers ...... 1,923,912 1,645,626 Response to informal reports ...... 5,336,591 5,336,591 Reduction in the number of investigations ...... (99,176,416) (99,176,416) Increased investigation requirements ...... 4,438,769 4,438,769 Appeal process ...... 20,770,218 20,770,218 Informal resolution of complaints ...... (3,414,979) (3,414,979) Creation and maintenance of documentation ...... 18,335,868 17,880,723

Clarity of the Regulations To send any comments that concern government overseeing a population Executive Order 12866 and the how the Department could make these below 50,000. Presidential memorandum ‘‘Plain proposed regulations easier to Publicly available data from the Language in Government Writing’’ understand, see the instructions in the National Center on Education Statistics’ require each agency to write regulations ADDRESSES section of the preamble. Common Core of Data indicate that, during the 2015–2016 school year, 99.4 that are easy to understand. The Deregulatory Action Secretary invites comments on how to percent of local educational agencies make these proposed regulations easier Consistent with Executive Order had enrollments of less than 50,000 to understand, including answers to 13771 (82 FR 9339, February 3, 2017), students. questions such as the following: we have estimated that this proposed The Department’s eZ-Audit data • Are the requirements in the rule will result in cost savings. shows that there were 1,522 Title IV proposed regulations clearly stated? Therefore, this proposed rule would be proprietary schools with revenue less • Do the proposed regulations contain considered an Executive Order 13771 than $7,000,000 for the 2015–2016 technical terms or other wording that deregulatory action. Award Year; 35 however, the Department lacks data to identify which interferes with their clarity? Regulatory Flexibility Act (Small • public and private, nonprofit Does the format of the proposed Business Impacts) regulations (use of headings, institutions qualify as small. Given the paragraphing, etc.) aid or reduce their This analysis, required by the data limitations, the Department clarity? Regulatory Flexibility Act, presents an proposes a data-driven definition for • Would the proposed regulations be estimate of the effect of the proposed ‘‘small institution’’ in each sector. regulations on small entities. The U.S. easier to understand if we divided them 1. Proposed Definition into more (but shorter) sections? (A Small Business Administration (SBA) ‘‘section’’ is preceded by the symbol Size Standards define proprietary The Department has historically ‘‘section’’ and a numbered heading; for institutions of higher education as small assumed that all private nonprofit example, section 106.9 Dissemination of businesses if they are independently institutions were small because none policy.) owned and operated, are not dominant were considered dominant in their field. • Could the description of the in their field of operation, and have total However, this approach masks proposed regulations in the annual revenue below $7,000,000. significant differences in resources SUPPLEMENTARY INFORMATION section of Nonprofit institutions are defined as among different segments of these this preamble be more helpful in small entities if they are independently making the proposed regulations easier owned and operated and not dominant 35 U.S. Dept. of Educ., Federal Student Aid, to understand? If so, how? in their field of operation. Public Proprietary School 90/10 Revenue Percentages, • studentaid.ed.gov/sa/about/data-center/school/ What else could we do to make the institutions and local educational proprietary (select ‘‘2015–2016 Award Year: Report proposed regulations easier to agencies are defined as small and Summary Chart’’ from the dropdown menu; understand? organizations if they are operated by a click ‘‘Go’’).

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institutions. The Department proposes elements available in IPEDS, including • Two-year IHEs, enrollment less to use enrollment data for its definition Carnegie Size Definitions, IPEDS than 500 FTE; and of small institutions of postsecondary institutional size categories, total FTE, • Four-year IHEs, enrollment less education. Prior analyses show that and its own previous research on than 1,000 FTE. enrollment and revenue are correlated proprietary institutions referenced in for proprietary institutions. Further, ED–2017–OPE–0076i. As a result of this Table 3 shows the distribution of enrollment data are readily available to analysis, the Department proposes to small institutions under this proposed the Department for every postsecondary use this definition to define small definition using the 2016 IPEDS 36 institution while revenue is not. The institutions: institution file. Department analyzed a number of data

TABLE 3—SMALL INSTITUTIONS UNDER PROPOSED DEFINITION

Level Type Small Total Percent

2-year ...... Public ...... 342 1,240 28 2-year ...... Private ...... 219 259 85 2-year ...... Proprietary ...... 2,147 2,463 87 4-year ...... Public ...... 64 759 8 4-year ...... Private ...... 799 1,672 48 4-year ...... Proprietary ...... 425 558 76

Total ...... 3,996 6,951 57

Under the proposed definition, the whereas, four-year small institutions are of the universe and the percentage that two-year small institutions are 68% of 43% of all four-year institutions (1,288/ would be defined as small using the all two-year institutions (2,708/3,962), 2,989), 32% of all small institutions above proposed definition. 68% of all small institutions (2,708/ (1,288/3,996), and 19% of the overall 3,996), and 39% of the overall population of institutions (1,288/6,951). population of institutions (2,708/6,951); Figure 1 shows a visual representation

36 See U.S. Dept. of Educ., Nat’l Ctr. for Educ. ‘‘Search’’ button; click ‘‘Continue;’’ select ‘‘Browse/ ‘‘2016–2017’’ and ‘‘Sector of institution;’’ click the Statistics, Integrated Postsecondary Educ. Data Search Variables;’’ click the plus sign next to plus sign next to ‘‘Frequently Used/Derived System 2016 Institutional Characteristics: Directory ‘‘institutional Characteristics’’ > ‘‘Control or Variables’’ > ‘‘Fall enrollment/retention rates’’ > Information survey file (2016), nces.ed.gov/ipeds/ Affiliation’’ > ‘‘Institutional Control or Affiliation’’ Total, full- and part-time enrollment and fall FTE’’ datacenter/DataFiles.aspx (select ‘‘Compare and click the check boxes for ‘‘2016–2017’’ and and check the boxes next to ‘‘Fall 2016–’’ and institutions;’’ select ‘‘By Groups’’ and then ‘‘EZ ‘‘Control of Institution;’’ then select ‘‘Institutional ‘‘Total enrollment’’). Group’’ in the drop down menu; select ‘‘Title IV Characteristics’’ > ‘‘Institution classifications’’ > Participating’’ and ‘‘U.S. Only’’ and then click the ‘‘1980–81 to current year’’ and check the boxes for

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Similarly, small public institutions accruing to any particular LEA depend Based on the model described in the are 20% of all public institutions (406/ on a number of factors, including the Discussion of Costs, Benefits, and 1,999), 10% of all small public LEA’s Title IX enforcement history, its Transfers section above, the Department institutions (406/3,996), and 6% of the response to the proposed regulations, estimates that a small LEA that overall population of institutions (406/ and the number of formal complaints of experienced only an 8 percent reduction 6,951). Small private nonprofit sexual harassment the LEA receives in in investigations annually would institutions are 53% of all private the future, the Department was experience a net cost savings over the nonprofit institutions (1,018/1,999), interested in whether the regulations ten year time horizon. 25% of all small institutions (1,018/ would have a disproportionate effect on 2.b. Impact on Institutions of Higher 3,996), and 15% of the overall small LEAs—that is, whether small Education population of institutions (1,018/6,951). LEAs were likely to realize benefits Finally, and small proprietary proportionate to their size and number. As with LEAs, the Department institutions are 85% of all proprietary Using data from the 2015–2016 Civil estimates that these proposed institutions (2,572/1,999), 64% of all Rights Data Collection, we examined the regulations will result in a net cost small institutions (2,572/3,996), and number of allegations of harassment and savings for IHEs over the ten year time 37% of the overall population of bullying based on sex by LEA size. horizon. The amount of savings that any institutions (2,572/6,951). Given the extreme upper end of the particular IHE will realize, if any, The Department requests comment on enrollment distribution that qualifies an depends on a wide number of factors, the proposed definition. It will consider LEA as no longer a small entity for these including its Title IX compliance these suggestions in development of the purposes—less than one percent of all history, its response to the proposed final rule. LEAs—it is reasonable to expect that the regulations, and the number of formal 2. Impact Estimate Using Proposed number of reported incidents of such complaints of sexual harassment the Definition harassment in small LEAs closely aligns IHE receives in the future. Regardless of with the average number for all LEAs. these variables, the Department did 2.a. Impact on Local Education Agencies On average, LEAs reported 3.23 analyze extant data sources to attempt to As disused in the Discussion of Costs, allegations of harassment or bullying on analyze the likely differential impact Benefits, and Transfers section of the the basis of sex in the 2015–2016 school across IHEs of various sizes. Regulatory Impact Analysis, the year. By comparison, large LEAs (those As noted in the Discussion of Costs, Department estimates that these with more than 50,000 students) Benefits, and Transfers section of the proposed regulations will result in a net reported an average of 112.54 such Regulatory Impact Analysis, an analysis cost savings for regulated entities, incidents and small LEAs reported 2.64 of data reported by IHEs under the Clery including LEAs. Although the savings allegations on average. Act found that smaller institutions

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tended to have, on average, fewer such that small entities had far fewer reports reports per IHE.37 Applying the than did large entities.38 definitions noted above, we also found

TABLE 4—AVERAGE CLERY ACT REPORTS OF SEXUAL OFFENSES BY SIZE/TYPE OF INSTITUTION

Level Type Not small Small Total

4-year ...... Public ...... 12.1 1.1 11.3 4-year ...... Private ...... 8.7 0.7 4.7 4-year ...... Proprietary ...... 0.5 0.1 0.2 2-year ...... Public ...... 0.7 0.2 0.7 2-year ...... Private ...... 1.2 0.1 0.3 2-year ...... Proprietary ...... 0.1 0.0 0.0

Assuming that Clery Act reports are requirement helps ensure that: The proposed regulations that no correlated with the number of incidents public understands the Department’s investigation needs to be conducted of sexual harassment under Title IX, we collection instructions; respondents can where allegations, if true, do not would assume that small institutions provide the requested data in the constitute sexual harassment as defined have a lower number of Title IX desired format; reporting burden (time under the regulations, and that informal complaints each year. As a result, they and financial resources) is minimized; means may be used to resolve sexual may experience less cost savings under collection instruments are clearly harassment complaints, both changes this proposed rule given the smaller understood; and the Department can likely resulting in fewer investigative baseline. This lower baseline may, properly assess the impact of collection records being generated. however, be offset slightly by the higher requirements on respondents. We estimate that recipients would relative number of investigations The following sections contain have a higher first-year cost associated undertaken at smaller institutions, as information collection requirements: with establishing the system for noted in the Senate report. Additionally, documentation with a lower out-year Section 106.45(b)(7)—Recordkeeping we note that small institutions also have cost for maintaining it. At the LEA level, a higher than average number of Clery Section 106.45(b)(7) would require we assume that the Title IX Coordinator Act reports occurring off-campus, recipients to maintain certain would spend 4 hours in Year 1 indicating that they may also have a documentation regarding their Title IX establishing the system and an larger number of Title IX sexual activities. LEAs and IHEs would be administrative assistant would spend 8 harassment reports originating off- required to create and maintain for a hours doing so. At the IHE level, we campus. In examining the model period of three years records of: Sexual assume recipients are less likely to use described in the Discussion of Costs, harassment investigations; a paper filing system and are likely to Benefits, and Transfers Section above, determinations; appeals; disciplinary use an electronic database for managing the Department estimates that, due to sanctions and remedies; informal such information. Therefore, we assume the small baseline number of resolutions; materials used to train it will take a Title IX Coordinator 24 investigations likely conducted by such coordinators, investigators, and hours, an administrative assistant 40 entities currently, small institutions decision-makers; any actions, including hours, and a database administrator 40 would need to realize a 37 percent supportive measures, taken in response hours to set up the system for a total reduction in investigations (equivalent to a report or formal complaint of sexual Year 1 estimated cost for 16,606 LEAs to approximately one fewer harassment; and documentation of the and 6,766 IHEs of approximately investigation every five years) in order bases upon which the recipient $38,836,760. to realize a net cost savings across the concluded that its response was not In later years, we assume that the 10 year time horizon. If the institution clearly unreasonable and that its systems will be relatively simple to did not need to update its grievance measures taken were designed to restore maintain. At the LEA level, we assume procedures, it would only need to or preserve access to the recipient’s it will take the Title IX Coordinator 2 recognize a 33 percent reduction educational program or activity. This hours and an administrative assistant 4 (approximately one fewer investigation information will allow a recipient and hours to do so. At the IHE level, we every six years). OCR to assess on a longitudinal basis assume 4 hours from the Title IX the prevalence of sexual harassment Coordinator, 40 hours from an Paperwork Reduction Act of 1995 affecting access to a recipient’s administrative assistant, and 8 hours As part of its continuing effort to programs and activities, whether a from a database administrator. In total, reduce paperwork and the burden of recipient is complying with Title IX we estimate an ongoing cost of responding, the Department provides when responding to reports and formal approximately $15,189,260 per year. the general public and federal agencies complaints, and the necessity for We estimate that LEAs would take 12 with an opportunity to comment on additional or different training. We hours and IHEs would take 104 hours to proposed and continuing collections of estimate the volume of records to be establish and maintain a recordkeeping information in accordance with the created and retained may represent a system for the required sexual Paperwork Reduction Act of 1995 (PRA) decline from current recordkeeping due harassment documentation during Year (44 U.S.C. 3506(c)(2)(A)). This to clarification elsewhere in the 1. In out-years, we estimate that LEAs

37 We note that although enrollment and the 38 We note that this finding is driven largely by per enrolled student than did larger ones. Private number of Clery Act reports are positively institutional size rather than a higher rate of institutions generally had the highest rates, with correlated, enrollment alone explains only 26 offenses at larger institutions. Across all levels and private 4-year institutions having the highest rate of percent of the observed variation in the number of school types, except for private 4-year institutions, Clery Act reports of any category examined. reports. small entities had higher rates of Clery Act reports

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would take 6 hours annually and IHEs maintaining such a form is captured parties with the option of informal would take 52 hours annually to under the recordkeeping requirements resolution of formal complaints, may maintain the recordkeeping requirement of § 106.45(b)(7) described above, for a offer this option to the parties but may for Title IX sexual harassment total Year 1 cost of $441,270. Total only proceed by: First, providing the documentation. The total burden for burden for this requirement over three parties with written notice disclosing this recordkeeping requirement over years is 6,766 hours. the sexual harassment allegations, the three years is 398,544 hours for LEAs Section 106.45(b)(2)—Notice of requirements of an informal resolution and 1,407,328 hours for IHEs. Allegations process, any consequences from Collectively, we estimate the burden Section 106.45(b)(2) would require all participating in the informal resolution over three years for LEAs and IHEs for process; and second, obtaining the recordkeeping of Title IX sexual recipients, upon receipt of a formal complaint, to provide written notice to parties’ voluntary, written consent to harassment documents would be the informal resolution process. 1,805,872 hours under OMB Control the complainant the respondent, Number 1870–NEW. informing the parties of the recipient’s This provision permits—but does not grievance procedures and providing require—LEAs and IHEs to allow for Section 106.44(b)(3) sufficient details of the sexual voluntary participation informal Section 106.44(b)(3) applies only to harassment allegations being resolution as a method of resolving the IHEs and would require that where a investigated. This written notice will allegations raised in formal complaints complainant reports sexual harassment help ensure that the nature and scope of without completing the investigation but does not wish to file a formal the investigation, and the recipient’s and adjudication. complaint, the IHE would have a safe procedures, are clearly understood by the parties at the commencement of an We estimate that not all LEAs or IHEs harbor against a finding of deliberate investigation. will choose to offer informal resolution indifference where it offers the We estimate that most LEAs and IHEs as a feature of their grievance process; complainant supportive measures, but will need to create a form, or modify of those who do, we estimate that most must inform the complainant in writing one already used, to comply with these will need to create a form, or modify of the complainant’s right to file a requirements. We estimate that it will one already used, to comply with the formal complaint. This information take Title IX Coordinators one (1) hour requirements of this section. We provided by IHEs to complainants will to create or modify a form to use for estimate that it will take Title IX ensure that complainants receive these purposes, and that an attorney supportive measures to assist them in Coordinators one (1) hour to create or will spend 0.5 hours reviewing the form modify a form to use for these purposes, the aftermath of sexual harassment and for compliance with § 106.45(b)(2). We also remain aware of their right to file and that an attorney will spend 0.5 estimate there will be no cost in out- hours reviewing the form for a formal complaint that requires the IHE years, and that the cost of maintaining to investigate the sexual harassment compliance with § 106.45(b)(6). We such a form is captured under the estimate there will be no cost in out- allegations. recordkeeping requirements of years, and that the cost of maintaining We estimate that most IHEs will need § 106.45(b)(7) described above, for a such a form is captured under the to create a form, or modify a form they total Year 1 cost of $2,584,310. Total recordkeeping requirements of already use, to comply with this burden for this requirement over three requirement to inform the complainant years is 35,058 hours. § 106.45(b)(7) described above, for a in writing. We estimate that it will take total Year 1 cost of $2,584,310. The total Title IX Coordinators one (1) hour in Section 106.45(b)(6)—Informal burden for this requirement over three Year 1 to create or modify a form to use Resolution years is 35,058 hours. for these purposes, that there will be no Section 106.45(b)(6) would require cost in out-years, and that the cost of that recipients who wish to provide

COLLECTION OF INFORMATION

Regulatory OMB control No. and estimated burden section Information collection [change in burden]

106.45(b)(7) ...... This proposed regulatory provision would require LEAs and OMB 1870–NEW. The burden over the first three years IHEs to maintain certain documentation related to Title IX would be $69,215,280 and 1,805,872 hours. activities. 106.44(b)(3) ...... This proposed regulatory provision would require IHEs who OMB 1870–NEW. The burden over the first three years offer supportive measures to notify the complainant of the would be $441,270 and 6,766 hours. right to file a formal complaint. 106.45(b)(2) ...... This proposed regulatory provision would require LEAs and OMB 1870–NEW. The burden over the first three years IHEs to provide parties with written notice when inves- would be $2,584,310 and 35,058 hours. tigating a formal complaint. 106.45(b)(6) ...... This proposed regulatory provision would require LEAs and OMB 1870–NEW. The burden over the first three years IHEs to provide written notice to parties wishing to partici- would be $2,584,310 and 35,058 hours. pate in informal resolution of a formal complaint.

We have prepared an Information under the ADDRESSES section of this review all comments posted at Collection Request (ICR) for these notice. Please note that the Office of www.regulations.gov. proposed requirements. If you want to Information and Regulatory Affairs When commenting on the information review and comment on the ICR(s), (OMB) and the Department of Education collection requirements, we consider please follow the instructions listed

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your comments on these collections of Federalism PART 106—NONDISCRIMINATION ON information in— THE BASIS OF SEX IN EDUCATION • Executive Order 13132 requires us to PROGRAMS OR ACTIVITIES Deciding whether the collections ensure meaningful and timely input by are necessary for the proper RECEIVING FEDERAL FINANCIAL State and local elected officials in the performance of our functions, including ASSISTANCE development of regulatory policies that whether the information will have practical use; have federalism implications. ■ 1. The authority citation for part 106 ‘‘Federalism implications’’ means • continues to read as follows: Evaluating the accuracy of our substantial direct effects on the States, estimate of the burden of the Authority: 20 U.S.C. 1681 et seq., unless on the relationship between the otherwise noted. collections, including the validity of our National Government and the States, or ■ methodology and assumptions; on the distribution of power and 2. Section 106.3 is amended by • Enhancing the quality, usefulness, responsibilities among the various revising the section heading and paragraph (a) to read as follows: and clarity of the information we levels of government. The proposed collect; and regulations in 34 CFR 106.34 and 34 § 106.3 Available remedies. • Minimizing the burden on those CFR 106.35 may have federalism (a) Remedial action. If the Assistant who must respond, which includes implications, as defined in Executive Secretary finds that a recipient has exploring the use of appropriate Order 13132. We encourage State and violated this part, such recipient shall automated, electronic, mechanical, or local elected officials to review and take such remedial action as the other technological collection provide comments on these proposed Assistant Secretary deems necessary to techniques. regulations. remedy the violation, which shall not Addresses: Comments submitted in Accessible Format include assessment of damages against response to this notice should be the recipient. Nothing herein prohibits submitted electronically through the Individuals with disabilities can the Assistant Secretary from deeming Federal eRulemaking Portal at obtain this document in an accessible necessary equitable relief to remedy a www.regulations.gov by selecting format (e.g., braille, large print, violation of this part. Docket ID No. ED 2018–OCR–0064 or audiotape, or compact disc) on request * * * * * via postal mail, commercial delivery, or to the person listed under FOR FURTHER ■ 3. Section 106.6 is amended by hand delivery. Please specify the Docket INFORMATION CONTACT. revising the section heading and adding ID number and indicate ‘‘Information paragraphs (d), (e) and (f) to read as Collection Comments’’ on the top of Electronic Access to This Document follows: your comments if your comment(s) relate to the information collection for The official version of this document § 106.6 Effect of other requirements and this rule. Written requests for is the document published in the preservation of rights. information or comments submitted by Federal Register. Free internet access to * * * * * postal mail or delivery should be the official edition of the Federal (d) Constitutional protections. addressed to the Director of the Register and the Code of Federal Nothing in this part requires a recipient Information Collection Clearance Regulations is available via the Federal to: Division, U.S. Department of Education, Digital System at: www.gpo.gov/fdsys. (1) Restrict any rights that would 400 Maryland Avenue SW, LBJ 216–36, You can view this document at that site, otherwise be protected from government Washington, DC 20202–4537. as well as all other documents of this action by the First Amendment of the Comments submitted by fax or email Department published in the Federal U.S. Constitution; and those submitted after the comment Register, in text or PDF. To use PDF, (2) Deprive a person of any rights that period will not be accepted. FOR you must have Adobe Acrobat Reader, would otherwise be protected from FURTHER INFORMATION CONTACT: which is available free at the site. government action under the Due Electronically mail ICDocketMgr@ You may also access documents of the Process Clauses of the Fifth and ed.gov. Please do not send comments Department published in the Federal Fourteenth Amendments of the U.S. here. Register by using the article search Constitution; or Intergovernmental Review feature at: www.federalregister.gov. (3) Restrict any other rights Through the advanced search feature at guaranteed against government action This program is not subject to this site, you can limit your search to by the U.S. Constitution. Executive Order 12372 and the documents published by the (e) Effect of Section 444 of General regulations in 34 CFR part 79 because it Department. Education Provisions Act (GEPA)/ is not a program or activity of the Family Educational Rights and Privacy Department that provides federal List of Subjects in 34 CFR Part 106 Act (FERPA), 20 U.S.C. 1232g and 34 financial assistance. CFR part 99. The obligation to comply Education, Sex discrimination, Civil with this part is not obviated or Assessment of Educational Impact rights, Sexual harassment. alleviated by the FERPA statute or In accordance with section 411 of the Dated: November 15, 2018. regulations. General Education Provisions Act, 20 Betsy DeVos, (f) Title VII of the Civil Rights Act of U.S.C. 1221e–4, the Secretary Secretary of Education. 1964. Nothing in this part shall be read particularly requests comments on in derogation of an employee’s rights whether these proposed regulations For the reasons discussed in the under title VII of the Civil Rights Act of would require transmission of preamble, the Secretary proposes to 1964, 42 U.S.C. 2000e et seq. or any information that any other agency or amend part 106 of title 34 of the Code regulations promulgated thereunder. authority of the United States gathers or of Federal Regulations as follows: ■ 4. Section 106.8 is revised to read as makes available. follows:

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§ 106.8 Designation of coordinator, from participation, denial of benefits, or institute corrective measures on behalf dissemination of policy, and adoption of discrimination on the basis of sex of the recipient. grievance procedures. occurring against a person in the United Complainant means an individual (a) Designation of coordinator. Each States. who has reported being the victim of recipient must designate at least one conduct that could constitute sexual employee to coordinate its efforts to § 106.9 [Removed and Reserved] harassment, or on whose behalf the Title comply with its responsibilities under ■ 5. Section 106.9 is removed and IX Coordinator has filed a formal this part. The recipient must notify all reserved. complaint. For purposes of this its students and employees of the name ■ 6. Section 106.12 is amended by definition, the person to whom the or title, office address, electronic mail revising paragraph (b) to read as follows: individual has reported must be the address, and telephone number of the Title IX Coordinator or another person employee or employees designated § 106.12 Educational institutions to whom notice of sexual harassment pursuant to this paragraph (a). controlled by religious organizations. results in the recipient’s actual (b) Dissemination of policy—(1) * * * * * knowledge under this section. Notification of policy. Each recipient (b) Assurance of exemption. An Formal complaint means a document must notify applicants for admission educational institution that seeks signed by a complainant or by the Title and employment, students, employees, assurance of the exemption set forth in IX Coordinator alleging sexual and all unions or professional paragraph (a) of this section may do so harassment against a respondent about organizations holding collective by submitting in writing to the Assistant conduct within its education program or bargaining or professional agreements Secretary a statement by the highest activity and requesting initiation of the with the recipient that it does not ranking official of the institution, recipient’s grievance procedures discriminate on the basis of sex in the identifying the provisions of this part consistent with § 106.45. education program or activity that it that conflict with a specific tenet of the Respondent means an individual who operates, and that it is required by title religious organization. An institution is has been reported to be the perpetrator IX and this part not to discriminate in not required to seek assurance from the of conduct that could constitute sexual such a manner. Such notification must Assistant Secretary in order to assert harassment. state that the requirement not to such an exemption. In the event the Sexual harassment means: discriminate in the education program Department notifies an institution that it (1) An employee of the recipient or activity extends to employment and is under investigation for conditioning the provision of an aid, admission (unless subpart C of this part noncompliance with this part and the benefit, or service of the recipient on an does not apply to the recipient) and that institution wishes to assert an individual’s participation in unwelcome inquiries about the application of title exemption set forth in paragraph (a) of sexual conduct; (2) Unwelcome conduct on the basis IX and this part to such recipient may this section, the institution may at that of sex that is so severe, pervasive, and be referred to the employee designated time raise its exemption by submitting objectively offensive that it effectively pursuant to paragraph (a) of this section, in writing to the Assistant Secretary a denies a person equal access to the to the Assistant Secretary, or both. statement by the highest ranking official recipient’s education program or (2) Publications. (i) Each recipient of the institution, identifying the must prominently display a statement of activity; or provisions of this part which conflict (3) Sexual assault, as defined in 34 the policy described in paragraph (b)(1) with a specific tenet of the religious of this section on its website, if any, and CFR 668.46(a). organization, whether or not the Supportive measures means non- in each handbook or catalog that it institution had previously sought makes available to persons entitled to a disciplinary, non-punitive assurance of the exemption from the individualized services offered as notification under paragraph (b)(1) of Assistant Secretary. this section. appropriate, as reasonably available, (ii) A recipient must not use or * * * * * and without fee or charge to the distribute a publication stating that the ■ 7. Add § 106.30 to read as follows: complainant or the respondent before or after the filing of a formal complaint or recipient treats applicants, students, or § 106.30 Definitions. employees differently on the basis of sex where no formal complaint has been except as such treatment is permitted by As used in this subpart: filed. Such measures are designed to this part. Actual knowledge means notice of restore or preserve access to the (c) Adoption of grievance procedures. sexual harassment or allegations of recipient’s education program or A recipient must adopt and publish sexual harassment to a recipient’s Title activity, without unreasonably grievance procedures that provide for IX Coordinator or any official of the burdening the other party; protect the the prompt and equitable resolution of recipient who has authority to institute safety of all parties and the recipient’s student and employee complaints corrective measures on behalf of the educational environment; and deter alleging any action that would be recipient, or to a teacher in the sexual harassment. Supportive measures prohibited by this part and of formal elementary and secondary context with may include counseling, extensions of complaints as defined in § 106.30. A regard to student-on-student deadlines or other course-related recipient must provide notice of the harassment. Imputation of knowledge adjustments, modifications of work or recipient’s grievance procedures, based solely on respondeat superior or class schedules, campus escort services, including how to report sex constructive notice is insufficient to mutual restrictions on contact between discrimination and how to file or constitute actual knowledge. This the parties, changes in work or housing respond to a complaint of sex standard is not met when the only locations, leaves of absence, increased discrimination, to students and official of the recipient with actual security and monitoring of certain areas employees. knowledge is also the respondent. The of the campus, and other similar (d) Application. The requirements mere ability or obligation to report measures. The recipient must maintain that a recipient adopt a policy and sexual harassment does not qualify an as confidential any supportive measures grievance procedures as described in employee, even if that employee is an provided to the complainant or this section apply only to exclusion official, as one who has authority to respondent, to the extent that

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maintaining such confidentiality would this section, respond in a manner that before any disciplinary sanctions are not impair the ability of the institution is not deliberately indifferent. A imposed; to provide the supportive measures. The recipient is deliberately indifferent only (ii) Require an objective evaluation of Title IX Coordinator is responsible for if its response to sexual harassment is all relevant evidence—including both coordinating the effective clearly unreasonable in light of the inculpatory and exculpatory evidence— implementation of supportive measures. known circumstances. and provide that credibility ■ 8. Add §§ 106.44 and 106.45 to read (5) The Assistant Secretary will not determinations may not be based on a as follows: deem a recipient’s determination person’s status as a complainant, regarding responsibility to be evidence respondent, or witness; § 106.44 Recipient’s response to sexual of deliberate indifference by the (iii) Require that any individual harassment. recipient merely because the Assistant designated by a recipient as a (a) General. A recipient with actual Secretary would have reached a coordinator, investigator, or decision- knowledge of sexual harassment in an different determination based on an maker not have a conflict of interest or education program or activity of the independent weighing of the evidence. bias for or against complainants or recipient against a person in the United (c) Emergency removal. Nothing in respondents generally or an individual States must respond in a manner that is this section precludes a recipient from complainant or respondent. A recipient not deliberately indifferent. A recipient removing a respondent from the must ensure that coordinators, is deliberately indifferent only if its recipient’s education program or investigators, and decision-makers response to sexual harassment is clearly activity on an emergency basis, receive training on both the definition of unreasonable in light of the known provided that the recipient undertakes sexual harassment and how to conduct circumstances. an individualized safety and risk an investigation and grievance process, (b) Specific circumstances. (1) A analysis, determines that an immediate including hearings, if applicable, that recipient must follow procedures threat to the health or safety of students protect the safety of students, ensure consistent with § 106.45 in response to or employees justifies removal, and due process protections for all parties, a formal complaint. If the recipient provides the respondent with notice and and promote accountability. Any follows procedures (including an opportunity to challenge the decision materials used to train coordinators, implementing any appropriate remedy immediately following the removal. investigators, or decision-makers may as required) consistent with § 106.45 in This provision shall not be construed to not rely on sex stereotypes and must response to a formal complaint, the modify any rights under the Individuals promote impartial investigations and recipient’s response to the formal with Disabilities Education Act, Section adjudications of sexual harassment; complaint is not deliberately indifferent 504 of the Rehabilitation Act of 1973, or (iv) Include a presumption that the and does not otherwise constitute title II of the Americans with respondent is not responsible for the discrimination under title IX. Disabilities Act. alleged conduct until a determination (2) When a recipient has actual (d) Administrative leave. Nothing in regarding responsibility is made at the knowledge regarding reports by this section precludes a recipient from conclusion of the grievance process; multiple complainants of conduct by placing a non-student employee (v) Include reasonably prompt the same respondent that could respondent on administrative leave timeframes for conclusion of the constitute sexual harassment, the Title during the pendency of an investigation. grievance process, including reasonably IX Coordinator must file a formal prompt timeframes for filing and complaint. If the Title IX Coordinator § 106.45 Grievance procedures for formal resolving appeals if the recipient offers files a formal complaint in response to complaints of sexual harassment. an appeal, and a process that allows for the reports, and the recipient follows (a) Discrimination on the basis of sex. the temporary delay of the grievance procedures (including implementing A recipient’s treatment of a complainant process or the limited extension of any appropriate remedy as required) in response to a formal complaint of timeframes for good cause with written consistent with § 106.45 in response to sexual harassment may constitute notice to the complainant and the the formal complaint, the recipient’s discrimination on the basis of sex under respondent of the delay or extension response to the reports is not title IX. A recipient’s treatment of the and the reasons for the action. Good deliberately indifferent. respondent may also constitute cause may include considerations such (3) For institutions of higher discrimination on the basis of sex under as the absence of the parties or education, a recipient is not deliberately title IX. witnesses, concurrent law enforcement indifferent when in the absence of a (b) Grievance procedures. For the activity, or the need for language formal complaint the recipient offers purpose of addressing formal assistance or accommodation of and implements supportive measures complaints of sexual harassment, disabilities; designed to effectively restore or grievance procedures must comply with (vi) Describe the range of possible preserve the complainant’s access to the the requirements of this section. sanctions and remedies that the recipient’s education program or (1) Basic requirements for grievance recipient may implement following any activity. At the time supportive procedures. Grievance procedures determination of responsibility; measures are offered, the recipient must must— (vii) Describe the standard of evidence in writing inform the complainant of the (i) Treat complainants and to be used to determine responsibility; right to file a formal complaint at that respondents equitably. An equitable (viii) Include the procedures and time or a later date, consistent with resolution for a complainant must permissible bases for the complainant other provisions of this part. include remedies where a finding of and respondent to appeal if the (4) If paragraphs (b)(1) through (3) of responsibility for sexual harassment has recipient offers an appeal; and this section are not implicated, a been made against the respondent; such (ix) Describe the range of supportive recipient with actual knowledge of remedies must be designed to restore or measures available to complainants and sexual harassment in an education preserve access to the recipient’s respondents. program or activity of the recipient education program or activity. An (2) Notice of allegations—(i) Notice against a person in the United States equitable resolution for a respondent upon receipt of formal complaint. Upon must, consistent with paragraph (a) of must include due process protections receipt of a formal complaint, a

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recipient must provide the following during any grievance proceeding, extent to which advisors may written notice to the parties who are including the opportunity to be participate in the proceedings. If a party known: accompanied to any related meeting or does not have an advisor present at the (A) Notice of the recipient’s grievance proceeding by the advisor of their hearing, the recipient must provide that procedures. choice, and not limit the choice of party an advisor aligned with that party (B) Notice of the allegations advisor or presence for either the to conduct cross-examination. All cross- constituting a potential violation of the complainant or respondent in any examination must exclude evidence of recipient’s code of conduct, including meeting or grievance proceeding; the complainant’s sexual behavior or sufficient details known at the time and however, the recipient may establish predisposition, unless such evidence with sufficient time to prepare a restrictions regarding the extent to about the complainant’s sexual behavior response before any initial interview. which the advisor may participate in the is offered to prove that someone other Sufficient details include the identities proceedings, as long as the restrictions than the respondent committed the of the parties involved in the incident, apply equally to both parties; conduct alleged by the complainant, or if known, the specific section of the (v) Provide to the party whose if the evidence concerns specific recipient’s code of conduct allegedly participation is invited or expected incidents of the complainant’s sexual violated, the conduct allegedly written notice of the date, time, behavior with respect to the respondent constituting sexual harassment under location, participants, and purpose of all and is offered to prove consent. At the this part and under the recipient’s code hearings, investigative interviews, or request of either party, the recipient of conduct, and the date and location of other meetings with a party, with must provide for cross-examination to the alleged incident, if known. The sufficient time for the party to prepare occur with the parties located in written notice must include a statement to participate; separate rooms with technology that the respondent is presumed not (vi) For recipients that are elementary enabling the decision-maker and parties responsible for the alleged conduct and and secondary schools, the recipient’s to simultaneously see and hear the party that a determination regarding grievance procedure may require a live answering questions. The decision- responsibility is made at the conclusion hearing. With or without a hearing, the maker must explain to the party’s of the grievance process. The written decision-maker must, after the recipient advisor asking cross-examination notice must also inform the parties that has incorporated the parties’ responses questions any decision to exclude they may request to inspect and review to the investigative report under questions as not relevant. If a party or evidence under paragraph (b)(3)(viii) of paragraph (b)(3)(ix) of this section, ask witness does not submit to cross- this section and inform the parties of each party and any witnesses any examination at the hearing, the any provision in the recipient’s code of relevant questions and follow-up decision-maker must not rely on any conduct that prohibits knowingly questions, including those challenging statement of that party or witness in making false statements or knowingly credibility, that a party wants asked of reaching a determination regarding submitting false information during the any party or witnesses. If no hearing is responsibility; grievance process. held, the decision-maker must afford (viii) Provide both parties an equal (ii) Ongoing notice requirement. If, in each party the opportunity to submit opportunity to inspect and review any the course of an investigation, the written questions, provide each party evidence obtained as part of the recipient decides to investigate with the answers, and allow for investigation that is directly related to allegations not included in the notice additional, limited follow-up questions the allegations raised in a formal provided pursuant to paragraph from each party. With or without a complaint, including the evidence upon (b)(2)(i)(B) of this section, the recipient hearing, all such questioning must which the recipient does not intend to must provide notice of the additional exclude evidence of the complainant’s rely in reaching a determination allegations to the parties, if known. sexual behavior or predisposition, regarding responsibility, so that each (3) Investigations of a formal unless such evidence about the party can meaningfully respond to the complaint. The recipient must complainant’s sexual behavior is offered evidence prior to conclusion of the investigate the allegations in a formal to prove that someone other than the investigation. Prior to completion of the complaint. If the conduct alleged by the respondent committed the conduct investigative report, the recipient must complainant would not constitute alleged by the complainant, or if the send to each party and the party’s sexual harassment as defined in evidence concerns specific incidents of advisor, if any, the evidence subject to § 106.30 even if proved or did not occur the complainant’s sexual behavior with inspection and review in an electronic within the recipient’s program or respect to the respondent and is offered format, such as a file sharing platform, activity, the recipient must dismiss the to prove consent. The decision-maker that restricts the parties and advisors formal complaint with regard to that must explain to the party proposing the from downloading or copying the conduct. When investigating a formal questions any decision to exclude evidence, and the parties shall have at complaint, a recipient must— questions as not relevant; least ten days to submit a written (i) Ensure that the burden of proof and (vii) For institutions of higher response, which the investigator will the burden of gathering evidence education, the recipient’s grievance consider prior to completion of the sufficient to reach a determination procedure must provide for a live investigative report. The recipient must regarding responsibility rest on the hearing. At the hearing, the decision- make all such evidence subject herein to recipient and not on the parties; maker must permit each party to ask the the parties’ inspection and review (ii) Provide equal opportunity for the other party and any witnesses all available at any hearing to give each parties to present witnesses and other relevant questions and follow-up party equal opportunity to refer to such inculpatory and exculpatory evidence; questions, including those challenging evidence during the hearing, including (iii) Not restrict the ability of either credibility. Such cross-examination at a for purposes of cross-examination; and party to discuss the allegations under hearing must be conducted by the (ix) Create an investigative report that investigation or to gather and present party’s advisor of choice, fairly summarizes relevant evidence relevant evidence; notwithstanding the discretion of the and, at least ten days prior to a hearing (iv) Provide the parties with the same recipient under paragraph (b)(3)(iv) of (if a hearing is required under this opportunities to have others present this section to otherwise restrict the section) or other time of determination

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regarding responsibility, provide a copy (iii) The recipient must provide the (i) Provides to the parties a written of the report to the parties for their written determination to the parties notice disclosing— review and written response. simultaneously. If the recipient does not (A) The allegations; (4) Determination regarding offer an appeal, the determination (B) The requirements of the informal responsibility. (i) The decision-maker(s), regarding responsibility becomes final resolution process including the who cannot be the same person(s) as the on the date that the recipient provides circumstances under which it precludes Title IX Coordinator or the the parties with the written the parties from resuming a formal investigator(s), must issue a written determination. If the recipient offers an complaint arising from the same determination regarding responsibility. appeal, the determination regarding allegations, if any; and To reach this determination, the responsibility becomes final at either (C) Any consequences resulting from recipient must apply either the the conclusion of the appeal process, if participating in the informal resolution preponderance of the evidence standard an appeal is filed, or, if an appeal is not process, including the records that will or the clear and convincing evidence filed, the date on which an appeal be maintained or could be shared; and standard, although the recipient may would no longer be considered timely. (ii) Obtains the parties’ voluntary, employ the preponderance of the (5) Appeals. A recipient may choose written consent to the informal evidence standard only if the recipient to offer an appeal. If a recipient offers resolution process. uses that standard for conduct code an appeal, it must allow both parties to (7) Recordkeeping. (i) A recipient violations that do not involve sexual appeal. In cases where there has been a must create, make available to the harassment but carry the same finding of responsibility, although a complainant and respondent, and maximum disciplinary sanction. The complainant may appeal on the ground maintain for a period of three years recipient must also apply the same that the remedies are not designed to records of— standard of evidence for complaints restore or preserve the complainant’s (A) Each sexual harassment against students as it does for access to the recipient’s education investigation including any complaints against employees, program or activity, a complainant is determination regarding responsibility, including faculty. not entitled to a particular sanction any disciplinary sanctions imposed on (ii) The written determination must against the respondent. As to all the respondent, and any remedies include— appeals, the recipient must: provided to the complainant designed to (A) Identification of the section(s) of (i) Notify the other party in writing restore or preserve access to the the recipient’s code of conduct alleged when an appeal is filed and implement recipient’s education program or to have been violated; appeal procedures equally for both activity; (B) A description of the procedural parties; (B) Any appeal and the result steps taken from the receipt of the (ii) Ensure that the appeal decision- therefrom; complaint through the determination, maker is not the same person as any (C) Informal resolution, if any; and including any notifications to the investigator(s) or decision-maker(s) that (D) All materials used to train parties, interviews with parties and reached the determination of coordinators, investigators, and witnesses, site visits, methods used to responsibility; decision-makers with regard to sexual gather other evidence, and hearings (iii) Ensure that the appeal decision- harassment. held; maker complies with the standards set (C) Findings of fact supporting the forth in paragraph (b)(1)(iii) of this (ii) A recipient must create and determination; section; maintain for a period of three years (D) Conclusions regarding the (iv) Give both parties a reasonable, records of any actions, including any application of the recipient’s code of equal opportunity to submit a written supportive measures, taken in response conduct to the facts; statement in support of, or challenging, to a report or formal complaint of sexual (E) A statement of, and rationale for, the outcome; harassment. In each instance, the the result as to each allegation, (v) Issue a written decision describing recipient must document the basis for including a determination regarding the result of the appeal and the rationale its conclusion that its response was not responsibility, any sanctions the for the result; and clearly unreasonable, and document recipient imposes on the respondent, (vi) Provide the written decision that it has taken measures designed to and any remedies provided by the simultaneously to both parties. restore or preserve access to the recipient to the complainant designed to (6) Informal resolution. At any time recipient’s educational program or restore or preserve access to the prior to reaching a determination activity. The documentation of certain recipient’s education program or regarding responsibility the recipient bases or measures does not limit the activity; and may facilitate an informal resolution recipient in the future from providing (F) The recipient’s procedures and process, such as mediation, that does additional explanations or detailing permissible bases for the complainant not involve a full investigation and additional measures taken. and respondent to appeal, if the adjudication, provided that the [FR Doc. 2018–25314 Filed 11–28–18; 8:45 am] recipient offers an appeal. recipient— BILLING CODE 4000–01–P

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