Proposed Rule2022-13734
Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 12, 2022
Issuing agencies
Education Department
Abstract
The U.S. Department of Education (Department) proposes to amend the regulations implementing Title IX of the Education Amendments of 1972 (Title IX). The purpose of the proposed regulations is to better align the Title IX regulatory requirements with Title IX's nondiscrimination mandate, and to clarify the scope and application of Title IX and the obligation of all schools, including elementary schools, secondary schools, postsecondary institutions, and other recipients that receive Federal financial assistance from the Department (referred to below as recipients or schools) to provide an educational environment free from discrimination on the basis of sex, including through responding to incidents of sex discrimination. The Department recognizes that schools vary in size, student populations, and administrative structure. The proposed regulations would enable all schools to meet their obligations to comply fully with Title IX while providing them appropriate discretion and flexibility to account for these variations.
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<title>Federal Register, Volume 87 Issue 132 (Tuesday, July 12, 2022)</title>
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[Federal Register Volume 87, Number 132 (Tuesday, July 12, 2022)]
[Proposed Rules]
[Pages 41390-41579]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-13734]
[[Page 41389]]
Vol. 87
Tuesday,
No. 132
July 12, 2022
Part II
Department of Education
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34 CFR Part 106
Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance; Proposed Rule
Federal Register / Vol. 87 , No. 132 / Tuesday, July 12, 2022 /
Proposed Rules
[[Page 41390]]
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DEPARTMENT OF EDUCATION
34 CFR Part 106
[Docket ID ED-2021-OCR-0166]
RIN 1870-AA16
Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance
AGENCY: Office for Civil Rights, Department of Education.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The U.S. Department of Education (Department) proposes to
amend the regulations implementing Title IX of the Education Amendments
of 1972 (Title IX). The purpose of the proposed regulations is to
better align the Title IX regulatory requirements with Title IX's
nondiscrimination mandate, and to clarify the scope and application of
Title IX and the obligation of all schools, including elementary
schools, secondary schools, postsecondary institutions, and other
recipients that receive Federal financial assistance from the
Department (referred to below as recipients or schools) to provide an
educational environment free from discrimination on the basis of sex,
including through responding to incidents of sex discrimination. The
Department recognizes that schools vary in size, student populations,
and administrative structure. The proposed regulations would enable all
schools to meet their obligations to comply fully with Title IX while
providing them appropriate discretion and flexibility to account for
these variations.
DATES: Comments must be received on or before September 12, 2022.
ADDRESSES: Comments must be submitted via the Federal eRulemaking
Portal at <a href="http://www.regulations.gov">http://www.regulations.gov</a>. However, if you require an
accommodation or cannot otherwise submit your comments via <a href="http://www.regulations.gov">http://www.regulations.gov</a>, please contact the program contact person listed
under FOR FURTHER INFORMATION CONTACT. The Department will not accept
comments by fax or by email, or comments submitted after the comment
period closes. To ensure that the Department does not receive duplicate
copies, please submit your comments only once. Additionally, please
include the Docket ID at the top of your comments.
The Department strongly encourages you to submit any comments or
attachments in Microsoft Word format. If you must submit a comment in
Adobe Portable Document Format (PDF), the Department strongly
encourages you to convert the PDF to ``print-to-PDF'' format, or to use
some other commonly used searchable text format. Please do not submit
the PDF in a scanned format. Using a print-to-PDF format allows the
Department to electronically search and copy certain portions of your
submissions to assist in the rulemaking process.
<bullet> Federal eRulemaking Portal: Please go to <a href="http://www.regulations.gov">http://www.regulations.gov</a> to submit your comments electronically. Information
on using <a href="http://www.regulations.gov">http://www.regulations.gov</a>, including instructions for finding
a rule on the site and submitting comments, is available on the site
under ``FAQ.''
Note: The Department's policy is to generally make comments
received from members of the public available for public viewing on
the Federal eRulemaking Portal at <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Therefore, commenters should include in their comments only
information about themselves that they wish to make publicly
available. Commenters should not include in their comments any
information that identifies other individuals or that permits
readers to identify other individuals. If, for example, your comment
describes an experience of someone other than yourself, please do
not identify that individual or include information that would allow
readers to identify that individual. The Department will not make
comments that contain personally identifiable information (PII)
about someone other than the commenter publicly available on <a href="http://www.regulations.gov">http://www.regulations.gov</a> for privacy reasons. This may include comments
where the commenter refers to a third-party individual without using
their name if the Department determines that the comment provides
enough detail that could allow one or more readers to link the
information to the third party. If your comment refers to a third-
party individual, to help ensure that your comment is posted, please
consider submitting your comment anonymously to reduce the chance
that information in your comment about a third party could be linked
to the third party. The Department will also not make comments that
contain threats of harm to another person or to oneself available on
<a href="http://www.regulations.gov">http://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Alejandro Reyes, U.S. Department of
Education, 400 Maryland Ave. SW, PCP-6125, Washington, DC 20202.
Telephone: 202-245-7705. You may also email your questions to
<a href="/cdn-cgi/l/email-protection#efbbd6a1bfbda2af8a8bc1888099"><span class="__cf_email__" data-cfemail="22761b6c72706f6247460c454d54">[email protected]</span></a>, but as described above, comments must be submitted via
the Federal eRulemaking Portal at <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
If you are deaf, hard of hearing, or have a speech disability and
wish to access telecommunications relay services, please dial 7-1-1.
SUPPLEMENTARY INFORMATION:
Executive Summary
Purpose of This Regulatory Action
The Department's review of the current regulations and of
information received during and pursuant to a week-long public hearing
as well as stakeholder listening sessions and meetings suggest that the
current regulations do not best fulfill the requirement of Title IX of
the Education Amendments of 1972 (Title IX) that schools and
institutions that receive Federal financial assistance eliminate
discrimination on the basis of sex in their education programs or
activities. The Department therefore proposes that the current
regulations should be amended to provide greater clarity regarding the
scope of sex discrimination, including recipients' obligations not to
discriminate based on sex stereotypes, sex characteristics, pregnancy
or related conditions, sexual orientation, and gender identity.
Further, the Department proposes that the current regulations could
better account for the variety of education programs or activities
covered by Title IX, which include recipients' education programs or
activities serving students in elementary schools, secondary schools,
and postsecondary institutions.
The Department makes these proposals based on an extensive review
of its regulations implementing Title IX, as well as the live and
written comments received during a nationwide virtual public hearing on
Title IX held in June 2021. In addition, in 2021, the Office for Civil
Rights held numerous listening sessions with a wide array of
stakeholders on various issues related to Title IX and considered input
from stakeholders during meetings held in 2022 under Executive Order
12866, after the NPRM was submitted to OMB. Executive Order on
Regulatory Planning and Review, E.O. 12866, 58 FR 51735 (Oct. 4, 1993),
<a href="https://www.govinfo.gov/content/pkg/FR-1993-10-04/pdf/FR-1993-10-04.pdf">https://www.govinfo.gov/content/pkg/FR-1993-10-04/pdf/FR-1993-10-04.pdf</a>. To address these concerns, the Department proposes amending the
Title IX regulations to:
<bullet> Require recipients to adopt grievance procedures that
provide for the prompt and equitable resolution of complaints of sex
discrimination and take other necessary steps to provide an educational
environment free from sex discrimination; \1\
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\1\ Throughout this preamble, the term ``sex discrimination''
means ``discrimination on the basis of sex'' as that language is
used in the statutory text of Title IX.
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<bullet> Clarify the Department's view of the scope of Title IX's
prohibition on sex discrimination, including related to a
[[Page 41391]]
hostile environment under the recipient's education program or
activity, as well as discrimination on the basis of sex stereotypes,
sex characteristics, pregnancy or related conditions, sexual
orientation, and gender identity; and
<bullet> Clarify a recipient's obligations to students and
employees who are pregnant or experiencing pregnancy-related
conditions.
Summary of the Major Provisions of This Regulatory Action
With regard to sex-based harassment (as defined in proposed Sec.
106.2), the proposed regulations would:
<bullet> Define sex-based harassment to include but not be limited
to sexual harassment;
<bullet> Provide and clarify, as appropriate, definitions of
various terms related to a recipient's obligations to address sex
discrimination, including sex-based harassment;
<bullet> Clarify how a recipient is required to take action to end
any sex discrimination that has occurred in its education program or
activity, prevent its recurrence, and remedy its effects; and
<bullet> Clarify a recipient's obligations related to the grievance
procedures and other necessary steps when it receives a complaint of
sex discrimination.
With regard to discrimination against individuals who are pregnant
or parenting, the proposed regulations would:
<bullet> Define the term ``pregnancy or related conditions'' and
the term ``parental status,'' and prohibit discrimination against
students and applicants for admission or employment on the basis of
current, potential, or past pregnancy or related conditions; and
<bullet> Clarify a recipient's obligations to students and
employees who are pregnant or experiencing related conditions.
In addition, the proposed regulations would:
<bullet> Articulate the Department's understanding that sex
discrimination includes discrimination on the basis of sex stereotypes,
sex characteristics, pregnancy or related conditions, sexual
orientation, and gender identity;
<bullet> Clarify and streamline administrative requirements with
respect to designating a Title IX Coordinator, disseminating a
nondiscrimination notice, adopting grievance procedures, and
recordkeeping;
<bullet> Specify that a recipient must train a range of relevant
persons on the recipient's obligations under Title IX;
<bullet> Clarify that, unless otherwise provided by Title IX or the
regulations, a recipient must not carry out any otherwise permissible
different treatment or separation on the basis of sex in a way that
would cause more than de minimis harm, including by adopting a policy
or engaging in a practice that prevents a person from participating in
an education program or activity consistent with their gender identity;
and
<bullet> Clarify a recipient's obligation to address retaliation.
Costs and Benefits
As further detailed in the Regulatory Impact Analysis, the
Department estimates that the total monetary cost savings to recipients
of the proposed regulations over ten years would be in the range of
$9.8 million to $28.2 million. Although the Department cannot quantify,
in monetary terms, the benefits of the proposed regulations to those
who have been subjected to sex discrimination, the Department
recognizes that sex discrimination, including sex-based harassment, can
have profound and long-lasting economic costs for students, employees,
and other members of a recipient's surrounding community. See, e.g.,
Centers for Disease Control and Prevention, Fast Facts: Preventing
Sexual Violence, <a href="https://www.cdc.gov/violenceprevention/sexualviolence/fastfact.html">https://www.cdc.gov/violenceprevention/sexualviolence/fastfact.html</a> (last visited June 16, 2022) (describing the economic
impact of sexual violence involving physical contact on male and female
victims within their lifetimes); Cora Peterson et al., Lifetime
Economic Burden of Intimate Partner Violence Among U.S. Adults, 55 a.m.
J. Preventative Med. 433 (2018) (estimating the economic impact of
intimate partner violence on male and female victims within their
lifetimes). The Department now believes that these proposed regulations
more effectively fulfill Title IX's guarantee that a recipient's
education program or activity is free from sex discrimination. As
proposed, the Department's preliminary view is that these amendments
would lower the costs associated with sex discrimination, thereby
producing a demonstrable benefit for students, employees, and others
participating in a recipient's education program or activity. In the
Regulatory Impact Analysis, the Department estimates the likely
monetary costs of this regulatory action for recipients. The
clarification of grievance procedures required for all forms of sex
discrimination and adoption of new reporting and notification framework
for employees will carry some costs. The Department notes that although
it cannot fully quantify the economic impact of the proposed
regulations, the Department believes that these benefits are
substantial and would significantly outweigh the estimated costs of the
proposed regulations.
The Department also acknowledges that the proposed regulations
deviate from some past agency statements on Title IX's coverage of
discrimination based on sexual orientation and gender identity. As
explained in the Regulatory Impact Analysis, the Department believes
that any costs associated with the shift away from its most recent
prior interpretation would be minimal. For example, the proposed
requirement to permit students to participate in a recipient's
education program or activity consistent with their gender identity may
require updating of policies or training materials, but would not
require significant expenditures, such as construction of new
facilities. The Department proposes that the benefits associated with
this change--increased protection of students from sex discrimination
and better alignment of the regulations with Title IX's
nondiscrimination mandate--far outweigh any costs.
Invitation to Comment: The Department invites you to submit
comments regarding the proposed regulations. To ensure that your
comments have the maximum effect on developing the final regulations,
you should identify clearly the specific section or sections of the
proposed regulations that each of your comments addresses and arrange
your comments in the same order as the proposed regulations.
The Department invites you to assist us in complying with the
specific requirements of Executive Orders 12866 and 13563 (explained
further below) and their overall goal of reducing the regulatory burden
that might result from the proposed regulations. Please let the
Department know of any further ways that it may reduce potential costs
or increase potential benefits, while preserving the effective and
efficient administration of the Department's programs and activities.
The Department also welcomes comments on any alternative approaches to
the subjects addressed by the proposed regulations.
During and after the comment period, you may inspect public
comments about the proposed regulations by accessing <a href="http://Regulations.gov">Regulations.gov</a>.
You may also inspect the comments in person. Please contact the person
listed under FOR FURTHER INFORMATION CONTACT to make
[[Page 41392]]
arrangements to inspect the comments in person.
Assistance to Individuals With Disabilities in Reviewing the
Rulemaking Record: Upon request, the Department will provide an
appropriate accommodation or auxiliary aid to an individual with a
disability who needs assistance to review the comments or other
documents in the public rulemaking record for the proposed regulations.
To schedule an appointment for this type of accommodation or auxiliary
aid, please contact the person listed under FOR FURTHER INFORMATION
CONTACT.
Table of Contents
Background
<bullet> History of Title IX's Nondiscrimination Mandate and Related
Regulations
<bullet> The Department's Review of the Title IX Regulations
<bullet> Significant Proposed Regulations
I. Provisions of General Applicability
II. Recipient's Obligation to Operate Its Education Program or
Activity Free from Sex Discrimination
III. Pregnancy and Parental Status
IV. Title IX's Coverage of All Forms of Sex Discrimination
V. Retaliation
VI. Outdated Regulatory Provisions
VII. Directed Questions
<bullet> Regulatory Impact Analysis
Background
The mission of the Department's Office for Civil Rights (OCR) is to
ensure equal access to education and to promote educational excellence
through vigorous enforcement of civil rights in our nation's schools.
One of the Federal civil rights laws that OCR enforces is Title IX,
which prohibits discrimination on the basis of sex under education
programs or activities that receive Federal financial assistance. 20
U.S.C. 1681-1688. Unfortunately, sex discrimination--sometimes
overlapping with other forms of discrimination, such as race
discrimination and disability discrimination--remains a serious
problem, keeping affected students from benefiting fully from their
school's education programs and activities.
In March 2021, President Joseph R. Biden, Jr. issued the Executive
Order on Guaranteeing an Educational Environment Free from
Discrimination on the Basis of Sex, Including Sexual Orientation or
Gender Identity, and directed the Secretary of Education, in
consultation with the Attorney General, to review all existing
regulations, orders, guidance documents, policies and any other similar
agency actions for consistency with Title IX and other governing laws.
The goal of the Executive Order was to ensure ``that all students [are]
guaranteed an educational environment free from discrimination on the
basis of sex, including discrimination in the form of sexual
harassment, which encompasses sexual violence, and including
discrimination on the basis of sexual orientation or gender identity.''
Executive Order on Guaranteeing an Educational Environment Free from
Discrimination on the Basis of Sex, Including Sexual Orientation or
Gender Identity, E.O. 14021, 86 FR 13803 (Mar. 11, 2021), <a href="https://www.govinfo.gov/content/pkg/FR-2021-03-11/pdf/2021-05200.pdf">https://www.govinfo.gov/content/pkg/FR-2021-03-11/pdf/2021-05200.pdf</a>.
Also, as set out in the Executive Order on Preventing and Combating
Discrimination on the Basis of Gender Identity or Sexual Orientation,
issued in January 2021, this Administration's policy is ``to prevent
and combat discrimination on the basis of gender identity or sexual
orientation, and to fully enforce Title VII [of the Civil Rights Act of
1964] and other laws that prohibit discrimination on the basis of
gender identity or sexual orientation.'' Executive Order on Preventing
and Combating Discrimination on the Basis of Gender Identity or Sexual
Orientation, E.O. 13988, 86 FR 7023 (Jan. 25, 2021), <a href="https://www.govinfo.gov/content/pkg/FR-2021-01-25/pdf/2021-01761.pdf">https://www.govinfo.gov/content/pkg/FR-2021-01-25/pdf/2021-01761.pdf</a>. That
Executive Order further noted that under the reasoning of Bostock v.
Clayton County, 140 S. Ct. 1731 (2020), ``[l]aws that prohibit sex
discrimination--including Title IX of the Education Amendments Act of
1972, as amended (20 U.S.C. 1681 et seq.) . . . along with their
respective implementing regulations--prohibit discrimination on the
basis of gender identity or sexual orientation, so long as the laws do
not contain sufficient indications to the contrary.'' Id. Like
Executive Order 14021, Executive Order 13988 directed the Secretary of
Education, in consultation with the Attorney General, to ``review all
existing orders, regulations, guidance documents, policies, programs,
or other agency actions'' promulgated under any statute or regulation
that prohibits sex discrimination for their consistency with the stated
policy. Id.
As these Executive Orders directed, the Department conducted an
extensive review of its Title IX regulations and policy documents for
consistency with Title IX's statutory prohibition on sex discrimination
in federally funded education programs or activities. This review
included careful consideration of the comments and feedback received
during a nationwide virtual public hearing on Title IX that OCR held in
June 2021, OCR's numerous listening sessions in 2021 with a wide array
of individuals and organizations on various Title IX issues, and
meetings with stakeholders held in 2022 under Executive Order 12866,
after the NPRM was submitted to the Office of Management and Budget
(OMB). Office of Management and Budget, Office of Information and
Regulatory Affairs, <a href="http://Reginfo.gov">Reginfo.gov</a>, <a href="http://reginfo.gov/public">http://reginfo.gov/public</a> (last
visited June 2, 2022). Based on that review and input, the Department
proposes that the current regulations should be amended to support full
implementation of Title IX's prohibition on sex discrimination under a
recipient's education program or activity.
In its review, the Department heard two overarching concerns from
students, parents, recipients, advocates, and other concerned
stakeholders, namely that: (1) there is a need for greater clarity on
how to ensure that complaints of sex-based harassment are resolved in a
prompt and equitable manner; and (2) the current regulations do not
adequately clarify or specify the scope of sex discrimination
prohibited by Title IX, including discrimination based on sex
stereotypes, sex characteristics, pregnancy or related conditions,
sexual orientation, or gender identity. The Department has determined
that more clarity and greater specificity would better equip recipients
of Federal funding \2\ to create and maintain school environments free
from sex discrimination. This, in turn, will help recipients ensure
that all persons have equal access to educational opportunities in
accordance with Title IX's nondiscrimination mandate.
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\2\ The text of Title IX states that the statute applies to
``any education program or activity receiving Federal financial
assistance.'' 20 U.S.C. 1681(a). The definition of the term
``Federal financial assistance'' under the Title IX regulations is
not limited to monetary assistance, but encompasses various types of
in-kind assistance, such as a grant or loan of real or personal
property, or provision of the services of Federal personnel. See 34
CFR 106.2(g)(2) and (3). Throughout this preamble, terms such as
``Federal funding,'' ``Federal funds,'' and ``federally funded'' are
used to refer to ``Federal financial assistance,'' and are not meant
to limit application of the statute or its implementing regulations
to recipients of certain types of Federal financial assistance.
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The goal of the Department's proposed regulations is thus to fully
effectuate Title IX by clarifying and specifying the scope and
application of Title IX protections and recipients' obligation not to
discriminate on the basis of sex. Specifically, this proposed
regulatory action focuses on ensuring that recipients prevent and
address sex discrimination, including but not limited to sex-based
harassment, in their education programs or activities;
[[Page 41393]]
clarifying the scope of Title IX's protection for students and others
who are participating or attempting to participate in a recipient's
education program or activity; defining important terms related to a
recipient's obligations under Title IX; ensuring the provision of
supportive measures, as appropriate to restore or preserve a
complainant's or respondent's access to the recipient's education
program or activity; clarifying a recipient's responsibilities toward
students who are pregnant or experiencing pregnancy-related conditions;
and clarifying that Title IX's prohibition on sex discrimination
encompasses discrimination based on sex stereotypes, sex
characteristics, pregnancy or related conditions, sexual orientation,
and gender identity. In addressing confusion about coverage of sex-
based harassment in the current regulations, the Department's proposed
regulations also set out requirements that enable recipients to meet
their obligations in settings that vary in size, student populations,
and administrative structure. The proposed regulatory action would
strengthen the current framework, clarify the scope and application of
Title IX, and fully align the Title IX regulations with the
nondiscrimination mandate of Title IX.
I. History of Title IX's Nondiscrimination Mandate and Related
Regulations
Enacted in 1972, Title IX provides that ``[n]o person in the United
States shall, on the basis of sex, be excluded from participation in,
be denied the benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial assistance.''
20 U.S.C. 1681(a).
Title IX is cast in broad terms. It imposes, as a condition on
receipt of Federal funds for education programs or activities, a
blanket prohibition on sex-based discrimination, with a small number of
``specific, narrow exceptions to that broad prohibition.'' Jackson v.
Birmingham Bd. of Educ., 544 U.S. 167, 175 (2005). Congress did not
limit Title IX's nondiscrimination condition to conduct engaged in
``by'' the recipient or its agents, but rather extended it to any
``exclu[sion] from participation in,'' ``deni[al of] the benefits of,''
or ``subject[ion] to discrimination under,'' any recipient's education
program or activity. Congress drafted Title IX ``with an unmistakable
focus on the benefited class,'' and did not ``writ[e] it simply as a
ban on discriminatory conduct by recipients of federal funds or as a
prohibition against the disbursement of public funds to educational
institutions engaged in discriminatory practices.'' Cannon v. Univ. of
Chi., 441 U.S. 677, 691-93 (1979).
Eliminating sex discrimination rooted in stereotypical perceptions
of women's abilities, competence, and worthiness to participate in
educational programs--as both student and employee--was also
fundamental to Title IX. See generally 118 Cong. Rec. 5803-12 (1972)
(statement of Sen. Birch Bayh). According to Senator Birch Bayh, Title
IX's sponsor in the U.S. Senate, discrimination in postsecondary
education was driven by the widespread, but false, perception that the
duty or desire of women to get married and bear children made them
disinterested in pursuing education or professional achievement. Id. at
5804. Because of this stereotype, many American schools did not wish to
``waste a `man's place' on a woman.'' Id. Thus, Senator Bayh said sex
discrimination in ``admissions, scholarship programs, faculty, hiring
and promotion, professional staffing, and pay scales,'' was ``one of
the great failings of the American educational system.'' Id. at 5803.
Title IX authorizes and directs the Department, as well as other
agencies ``to effectuate the provisions of section 1681 of this title
with respect to such program or activity by issuing rules, regulations,
or orders of general applicability which shall be consistent with
achievement of the objectives of the statute authorizing the financial
assistance in connection with which the action is taken.'' 20 U.S.C.
1682.
In 1979, the Supreme Court explained in Cannon v. University of
Chicago that the objectives of Title IX are two-fold: first, to ``avoid
the use of federal resources to support discriminatory practices'' and
second, to ``provide individual citizens effective protection against
those practices.'' 441 U.S. at 704. In 1982, the Court clarified the
broad scope of Title IX in North Haven Board of Education v. Bell,
stating: ``[I]f we are to give Title IX the scope that its origins
dictate, we must accord it a sweep as broad as its language.'' 456 U.S.
512, 521 (1982) (citations and internal alterations omitted).
Throughout this preamble, when the Department refers to Title IX's
nondiscrimination mandate or requirement, it means the directive of the
statutory text, including Title IX's purposes and prohibition on sex
discrimination as set out in Cannon and North Haven Board of Education.
* * * * *
In 1975, the Department's predecessor, the Department of Health,
Education, and Welfare (HEW), first promulgated regulations under Title
IX \3\ after multiple Congressional hearings. 121 Cong. Rec. 20467
(1975) (statement of Sen. Birch Bayh). They were also subject to a
statutory ``laying before'' provision, designed to afford Congress an
opportunity to examine the proposed regulations and disapprove them by
resolution within 45 days if deemed inconsistent with Title IX. N.
Haven Bd. of Educ., 456 U.S. at 531-32. The Supreme Court has held that
the fact that no such resolution succeeded ``strongly implies''
Congress' agreement with the Title IX regulations. Grove City Coll. v.
Bell, 465 U.S. 555, 568 (1984); N. Haven Bd. of Educ., 456 U.S. at 533-
35.
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\3\ 45 CFR part 86 (1975). In 1980, Congress created the United
States Department of Education. Public Law 96-88, sec. 201, 93 Stat.
669, 671 (1979); Exec. Order No. 12212, 45 FR 29557 (May 5, 1980).
By operation of law, all of HEW's determinations, rules, and
regulations continued in effect and all functions of HEW's Office
for Civil Rights, with respect to educational programs, were
transferred to the Secretary of Education. 20 U.S.C. 3441(a)(3). The
regulations implementing Title IX were recodified without
substantive change in 34 CFR part 106. See 45 FR 30802, 30955-65
(May 9, 1980).
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The regulations were promulgated to effectuate the purposes of
Title IX, specifically to ``eliminate (with certain exceptions)
discrimination on the basis of sex in any education program or activity
receiving Federal financial assistance.'' 34 CFR 106.1. The regulations
implemented Title IX's nondiscrimination mandate through provisions
that addressed sex discrimination in hiring, admissions, athletics, and
other aspects of a recipient's education program or activity. See
generally 34 CFR part 106. Since 1975, the Department's Title IX
regulations have required a recipient to take actions important for the
prevention and elimination of sex discrimination, including by
designating an employee to coordinate the recipient's efforts to comply
with Title IX (34 CFR 106.8(a)), adopting a nondiscrimination policy
(34 CFR 106.8(b)), adopting and publishing grievance procedures
providing for prompt and equitable resolution of sex discrimination
complaints (34 CFR 106.8(c)), and prohibiting discrimination against
students and employees based on pregnancy and childbirth (34 CFR
106.40(b); 34 CFR 106.57). At that time, Federal courts had not yet
addressed a recipient's Title IX obligations with respect to sex-based
harassment (including sexual harassment), sex stereotyping, or
discrimination based on sexual orientation and gender identity.
Since then, the understanding of Title IX has evolved through
judicial
[[Page 41394]]
interpretation, with relevant case law supporting the broad reach of
its nondiscrimination mandate, and OCR guidance and subsequent
regulations evolving accordingly. In 1992, the Supreme Court held that,
in some circumstances, a school district could be liable for monetary
damages under Title IX if a teacher sexually harasses a student.
Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60 (1992); see also
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998). In Gebser,
the Court specifically recognized the authority of Federal agencies,
such as the Department, to ``promulgate and enforce requirements that
effectuate [Title IX's nondiscrimination mandate],'' even in
circumstances that would not give rise to a claim for monetary damages.
524 U.S. at 292. The Court later held that schools also may be liable
for monetary damages under certain conditions if a student sexually
harasses another student in the school's program. Davis v. Monroe Cnty.
Bd. of Educ., 526 U.S. 629 (1999). OCR interpreted Title IX as
prohibiting sexual harassment as early as 1981, see U.S. Dep't of
Educ., Office for Civil Rights, Sexual Harassment: It's Not Academic,
Office for Civil Rights at 2 (1988) (1988 Sexual Harassment Pamphlet)
(quoting OCR Policy Memorandum, Aug. 31, 1981, from Antonio J. Califa,
Director for Litigation, Enforcement and Policy Service, OCR to
Regional Civil Rights Directors), <a href="https://files.eric.ed.gov/fulltext/ED330265.pdf">https://files.eric.ed.gov/fulltext/ED330265.pdf</a>, and issued a series of documents to provide guidance to
recipients on how to meet their obligations as well as information
about students' Title IX rights. In 2018, the Department issued a
Notice of Proposed Rulemaking (2018 NPRM) to clarify and modify the
Title IX regulations, 83 FR 61462 (Nov. 29, 2018), and in 2020 the
Department amended the Title IX regulations (the 2020 amendments)
specifying how recipients must respond to allegations of sexual
harassment in their education programs or activities. 85 FR 30026 (May
19, 2020).
Title IX has also long been understood to prohibit discrimination
related to pregnancy, consistent with its legislative history and the
broad sweep of its sex-discrimination prohibition. Conley v. Nw. Fla.
State Coll., 145 F. Supp. 3d 1073, 1077-78 (N.D. Fla. 2015); see also
Wort v. Vierling, Case No. 82-3169, slip op. (C.D. Ill. Sept. 4, 1984),
aff'd on other grounds, 778 F.2d 1233 (7th Cir. 1985); Muro v. Bd. of
Supervisors of La. State Univ. & Agric. & Mech. Coll., No. CV 19-10812,
2019 WL 5810308, at *3 (E.D. La. Nov. 7, 2019) (``Courts have held that
discrimination on the basis of pregnancy, childbirth, or related
medical conditions is a form of sex discrimination prohibited by Title
IX.''); Varlesi v. Wayne State Univ., 909 F. Supp. 2d 827, 854 (E.D.
Mich. 2012) (``[P]regnancy discrimination . . . is unquestionably
covered as a subset of sex discrimination under Title IX . . . .'').
Title IX regulations regarding pregnancy, which were part of the
1975 HEW regulations, prohibit recipients from discriminating against
students or employees based on ``pregnancy, childbirth, false
pregnancy, termination of pregnancy, or recovery therefrom,'' 34 CFR
106.40(b)(1), 106.57(b), and prohibit sex-based distinctions on the
basis of ``parental, family, or marital status,'' 34 CFR 106.40(a),
106.57(a). In guidance documents from 1991 and 2013, OCR emphasized
that discrimination against pregnant students is a form of sex
discrimination that may have significant adverse consequences for
educational attainment and long-term economic stability, but the
Department's regulations regarding pregnancy have remained unchanged
since 1975. The Department proposes updated regulations to ensure full
implementation of Title IX with respect to pregnancy and related
conditions. Although the proposed regulations are based exclusively on
Title IX, the Department notes that later-enacted statutes provide
additional context and considerations related to discrimination based
on pregnancy and or related conditions. In 1978, for example, Congress
enacted the Pregnancy Discrimination Act (PDA), which amended the
prohibition on sex discrimination in Title VII of the Civil Rights Act
of 1964 (Title VII) to prohibit employers from discriminating against
employees ``on the basis of pregnancy, childbirth, or related medical
conditions.'' 42 U.S.C. 2000e. The PDA requires that ``women affected
by pregnancy, childbirth, or related medical conditions shall be
treated the same for all employment-related purposes . . . as other
persons not so affected but similar in their ability or inability to
work.'' Id. In 2015, the Equal Employment Opportunity Commission (EEOC)
issued enforcement guidance on pregnancy discrimination and related
issues clarifying that Title VII, as amended by the PDA, prohibits
discrimination based on current pregnancy, past pregnancy, potential or
intended pregnancy, and medical conditions related to pregnancy or
childbirth, including lactation. U.S. Equal Emp. Opportunity Comm'n,
Enforcement Guidance on Pregnancy Discrimination and Related Issues
(June 25, 2015) (2015 EEOC Pregnancy Guidance), <a href="https://www.eeoc.gov/laws/guidance/enforcement-guidance-pregnancy-discrimination-and-related-issues">https://www.eeoc.gov/laws/guidance/enforcement-guidance-pregnancy-discrimination-and-related-issues</a>. Breastfeeding employees also have protections under the
Affordable Care Act (ACA), which amended the Fair Labor Standards Act
to require employers to provide reasonable break times and a private
place, other than a bathroom, for covered employees who are
breastfeeding to express milk for one year after the child's birth, 29
U.S.C. 207(r)(1). In addition, Section 188 of the Workforce Innovation
and Opportunity Act (WIOA), enforced by the Department of Labor (DOL),
prohibits WIOA Title I-financially assisted programs, activities,
training, and services from discriminating based on pregnancy,
childbirth, or related medical conditions, including lactation and
pregnancy-related disorders, as a form of sex discrimination. U.S.
Dep't of Labor, Implementation of the Nondiscrimination and Equal
Opportunity Provisions of the Workforce Innovation and Opportunity Act,
29 CFR 38.7(a), 38.8 (2017). Because both Title VII and Title IX
prohibit sex discrimination, the Supreme Court and lower Federal courts
often rely on interpretations of Title VII to inform interpretations of
Title IX, and both laws apply to employees in the educational context.
See, e.g., Franklin, 503 U.S. at 75; Jennings v. Univ. of N.C., 482
F.3d 686, 695 (4th Cir. 2007); Frazier v. Fairhaven Sch. Comm., 276
F.3d 52, 65-66 (1st Cir. 2002); Gossett v. Oklahoma ex rel. Bd. of
Regents for Langston Univ., 245 F.3d 1172, 1176 (10th Cir. 2001).
Consequently, the treatment of pregnancy-related discrimination under
the PDA, the ACA, and other statutes enacted since 1975 informs, though
does not dictate, the Department's understanding of discrimination on
the basis of sex under Title IX.
The Department's Title IX regulations have never directly addressed
the application of Title IX to discrimination based on sexual
orientation or gender identity. OCR first issued guidance on the rights
of gay and lesbian students in its 1997 Sexual Harassment Guidance,
recognizing that harassment of a sexual nature directed at gay or
lesbian students may constitute sexual harassment prohibited by Title
IX. U.S. Dep't of Educ., Office for Civil Rights, Sexual Harassment
Guidance: Harassment of Students by School Employees, Other Students,
or Third
[[Page 41395]]
Parties, 62 FR 12034, 12039 (Mar. 13, 1997) (1997 Sexual Harassment
Guidance) (revised in 2001), <a href="https://www.govinfo.gov/content/pkg/FR-1997-03-13/pdf/97-6373.pdf">https://www.govinfo.gov/content/pkg/FR-1997-03-13/pdf/97-6373.pdf</a>. OCR reinforced Title IX's coverage of this
form of harassment in 2001. U.S. Dep't of Educ., Office for Civil
Rights, Revised Sexual Harassment Guidance: Harassment of Students by
School Employees, Other Students, or Third Parties at 3, noticed at 66
FR 5512 (Jan. 19, 2001) (rescinded upon effective date of 2020
amendments, Aug. 14, 2020) (2001 Revised Sexual Harassment Guidance),
<a href="http://www.ed.gov/ocr/docs/shguide.pdf">www.ed.gov/ocr/docs/shguide.pdf</a>. Since then, OCR has recognized that
Title IX prohibits discrimination based on gender identity. See, e.g.,
U.S. Dep't of Educ., Office for Civil Rights, Questions and Answers on
Title IX and Sexual Violence at 5 (Apr. 29, 2014) (rescinded in 2017)
(2014 Q&A on Sexual Violence), <a href="http://www.ed.gov/ocr/docs/qa-201404-title-ix.pdf">www.ed.gov/ocr/docs/qa-201404-title-ix.pdf</a>; U.S. Dep't of Justice and U.S. Dep't of Educ., Office for Civil
Rights, Dear Colleague Letter on Title IX and Transgender Students (May
13, 2016) (rescinded in 2017) (2016 Dear Colleague Letter on Title IX
and Transgender Students), <a href="https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf">https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf</a>. Most recently, in
2021, OCR published a Notice of Interpretation in the Federal Register
to state explicitly that Title IX's prohibition on sex discrimination
encompasses discrimination on the basis of sexual orientation and
gender identity, consistent with the Supreme Court's reasoning in
Bostock. 140 S. Ct. 1731; U.S. Dep't of Educ., Office for Civil Rights,
Notice of Interpretation--Enforcement of Title IX with Respect to
Discrimination Based on Sexual Orientation and Gender Identity in Light
of Bostock v. Clayton County, 86 FR 32637 (June 22, 2021) (2021 Bostock
Notice of Interpretation), <a href="https://www.govinfo.gov/content/pkg/FR-2021-06-22/pdf/2021-13058.pdf">https://www.govinfo.gov/content/pkg/FR-2021-06-22/pdf/2021-13058.pdf</a>.
Against this backdrop and for reasons described in this preamble,
the Secretary proposes to amend the Title IX regulations at 34 CFR
106.1, 106.2, 106.6, 106.8, 106.11, 106.21, 106.30, 106.31, 106.40,
106.41, 106.44, 106.45, 106.46, 106.51, 106.57, 106.60, 106.71, and
106.81, as well as add new 106.10 and 106.47 and redesignate current
106.16 as 106.18 in subpart B and current 106.46 to 106.48 within
subpart D. The Secretary also proposes to delete 34 CFR 106.3(c) and
(d), 106.16, 106.17, 106.30, and 106.41(d) in their entirety, and
delete portions of 34 CFR 106.15 and 106.21 to the extent they refer to
34 CFR 106.16 and 106.17.
II. The Department's Review of the Title IX Regulations
On April 6, 2021, OCR issued a letter to students, educators, and
other stakeholders that provided information about the steps the
Department was taking to review its regulations, orders, guidance,
policies, and other similar agency actions under Title IX. U.S. Dep't
of Educ., Office for Civil Rights, Letter from Acting Assistant
Secretary Suzanne B. Goldberg to Students, Educators, and other
Stakeholders re Exec. Order 14021 (Apr. 6, 2021), <a href="http://www.ed.gov/ocr/correspondence/stakeholders/20210406-titleix-eo-14021.pdf">http://www.ed.gov/ocr/correspondence/stakeholders/20210406-titleix-eo-14021.pdf</a>. This
comprehensive review, as directed by Executive Order 14021, includes
OCR's review of all agency actions, including the 2020 amendments, to
determine whether changes to the Department's Title IX regulations are
necessary to fulfill Title IX and OCR's commitment to ensuring equal
and nondiscriminatory access to education for students at all
educational levels. Id. at 2. OCR explained that its review would be
guided by ``our responsibility to ensure that schools are providing
students with a nondiscriminatory educational environment, including
appropriate supports for students who have experienced sexual
harassment, including sexual violence, and other forms of sex
discrimination.'' Id. OCR also explained that ``[t]his responsibility
includes ensuring that schools have grievance procedures that provide
for the fair, prompt, and equitable resolution of reports of sexual
harassment and other sex discrimination, cognizant of the sensitive
issues that are often involved.'' Id.
On May 20, 2021, OCR published a notice in the Federal Register
announcing a nationwide virtual public hearing to gather information
for the purpose of improving enforcement of Title IX. U.S. Dep't of
Educ., Office for Civil Rights, Announcement of Public Hearing; Title
IX of the Education Amendments of 1972, 86 FR 27429 (May 20, 2021),
<a href="https://www.govinfo.gov/content/pkg/FR-2021-05-20/pdf/2021-10629.pdf">https://www.govinfo.gov/content/pkg/FR-2021-05-20/pdf/2021-10629.pdf</a>.
OCR expressed a particular interest in comments on the Title IX
regulations related to sexual harassment, including the 2020
amendments, and comments on discrimination based on sexual orientation
and gender identity in educational environments. Id. OCR requested live
comments through the virtual hearing platform and written comments via
email. The virtual hearing was held from June 7, 2021, to June 11,
2021. Over 280 students, parents, teachers, faculty members, school
staff, administrators, and other members of the public provided live
comments during the virtual public hearing. The transcript from the
June 2021 Title IX Public Hearing is available at <a href="https://www2.ed.gov/about/offices/list/ocr/docs/202106-titleix-publichearing-complete.pdf">https://www2.ed.gov/about/offices/list/ocr/docs/202106-titleix-publichearing-complete.pdf</a>.
OCR received over 30,000 written comments via email. The written
comments may be viewed at <a href="https://www2.ed.gov/about/offices/list/ocr/public-hearing.html">https://www2.ed.gov/about/offices/list/ocr/public-hearing.html</a>.
In addition to soliciting live and written comments as part of the
June 2021 Title IX Public Hearing, OCR also conducted listening
sessions with stakeholders expressing a variety of views on the 2020
amendments and other aspects of Title IX, including advocates for
survivors of sexual violence, students accused of sexual misconduct,
and LGBTQI+ \4\ students; organizations focused on Title IX and
athletics; organizations focused on free speech and due process;
organizations representing elementary schools, secondary schools, and
postsecondary institutions, teachers, administrators, and parents;
attorneys representing survivors, accused students, and schools; State
attorneys general offices; Title IX Coordinators and other school
administrators; individuals who provide training on Title IX to
schools; individuals who work in campus law enforcement; and
individuals who have participated in school-level Title IX proceedings.
---------------------------------------------------------------------------
\4\ The Department generally uses the term ``LGBTQI+'' to refer
to students who are lesbian, gay, bisexual, transgender, queer,
questioning, asexual, intersex, nonbinary, or describe their sex
characteristics, sexual orientation, or gender identity in another
similar way. When referring to some outside resources or past OCR
guidance documents, this preamble also uses variations of this
acronym to track the content of those documents, as appropriate.
---------------------------------------------------------------------------
Responses to OCR's request for comments for the June 2021 Title IX
Public Hearing and listening sessions with stakeholders revealed to OCR
areas of concern and confusion following the implementation of the 2020
amendments. OCR heard from stakeholders that aspects of the new
requirements were not well-suited to some or all educational
environments or to effectively advancing Title IX's nondiscrimination
mandate. More specifically, at the June 2021 Title IX Public Hearing
and in listening sessions, elementary school and secondary school
recipients expressed concern that certain requirements impeded their
successful management of the day-to-
[[Page 41396]]
day school environment. At the postsecondary level, recipients
expressed concern regarding the new requirement to provide a live
hearing with advisor-conducted cross-examination (current Sec.
106.45(b)(6)), both because of the increased administrative burden and
because of the requirement's effect on students' willingness to bring
forward complaints and participate in the grievance process. Other
stakeholders also expressed that this requirement is unnecessarily
adversarial, retraumatizing, chilling to students' willingness to
report incidents, and not more effective than other means of
determining whether a violation of the school's prohibition on sexual
harassment occurred. Still other stakeholders urged the Department to
preserve the live hearing and adversarial cross-examination
requirements. These stakeholders stated that the hearing and cross-
examination requirements ensured fundamental fairness in a high-stakes
process in a way that is consistent with the tenets of the American
justice system.
Some postsecondary recipients expressed concern that the
requirements in the 2020 amendments intruded on their professional
judgment and expertise about how best to respond to allegations of
student misconduct in their educational environment. A variety of
stakeholders, including some recipients, also expressed concerns about
the limitations on a recipient's obligation to respond to notice of
sexual harassment and the narrowing of the definition of ``sexual
harassment'' from the Department's previous position (current
Sec. Sec. 106.30, 106.44). They suggested the limitations in the 2020
amendments allowed recipients to ignore conduct that could or would
limit or deny access to their learning environment based on sex.
Similarly, stakeholders expressed concerns that recipients refused to
respond to complaints of a hostile environment based on sex in a
program or activity because the initial sexually harassing conduct
occurred off-campus or outside the United States (current Sec.
106.44). OCR also heard from stakeholders who were concerned that the
deliberate indifference standard was an inappropriately narrow standard
of responsibility for the administrative enforcement context in light
of Title IX's nondiscrimination mandate.
Stakeholders also requested that the Department clarify Title IX's
application to issues not currently addressed, or not viewed by the
stakeholders as addressed adequately, by the current regulations. In
particular, stakeholders requested that the Department specify
protections related to discrimination based on sexual orientation and
gender identity. These requests noted the historical and ongoing
discrimination experienced by LGBTQI+ students, the recent enactment of
State laws restricting transgender students from participating in
school consistent with their gender identity, and the void created by
OCR's withdrawal of its 2016 Dear Colleague Letter on Title IX and
Transgender Students. Other stakeholders urged that transgender
students must not be permitted to participate in school consistent with
their gender identity, either in all or certain circumstances.
Stakeholders also requested that the Department clarify that
discrimination based on sex characteristics is a form of sex
discrimination and, in particular, that Title IX protects intersex
students from discrimination. OCR also heard from stakeholders
requesting clarification on Title IX's protections against pregnancy
discrimination and its prohibition on rules that treat parents
differently based on sex. The Department heard more from stakeholders
in 2022 in meetings held under Executive Order 12866, after the NPRM
was submitted to OMB.
Having considered the comments and other information received in
connection with the June 2021 Title IX Public Hearing, 2021 listening
sessions, and the 2022 meetings held under Executive Order 12866, the
Department's proposed regulations aim to strengthen the current
framework, improve clarity for recipients to facilitate their
compliance, and better align the Title IX regulations with the
nondiscrimination mandate of Title IX, particularly its goal of
``provid[ing] individual citizens effective protection against
[discriminatory] practices.'' Cannon, 441 U.S. at 704. The Department's
goals are to clarify the scope of Title IX's protection from sex
discrimination for students participating or attempting to participate
in an education program or activity; to state in greater detail and
with greater clarity than in the current regulations a recipient's
responsibilities toward pregnant students; to ensure the provision of
supportive measures, as available and appropriate, to those who
experience any form of sex discrimination, including but not limited to
sex-based harassment; and to ensure that recipients understand their
obligation to address sex discrimination in their education programs or
activities. The overarching goal is to ensure that no person
experiences sex discrimination in education. To that end, the
Department aims to ensure that all recipients can implement Title IX's
nondiscrimination mandate fully and fairly in their educational
environments, including with procedures for responding to complaints of
sex discrimination that are prompt and equitable for all participants.
In reviewing the 2020 amendments, the Department also considered
its regulations implementing other laws with requirements that parallel
or overlap with a recipient's obligations under Title IX. For example,
the Department considered the requirements for postsecondary
institutions under the 2013 reauthorization of the Violence Against
Women Act (VAWA 2013), Public Law 113-4, 304, 127 Stat. 54, 89-92,
which amended the Jeanne Clery Disclosure of Campus Security Policy and
Campus Crime Statistics Act (Clery Act), 20 U.S.C. 1092(f) (2018). The
Clery Act requires institutions of higher education participating in
Federal financial aid programs under the Higher Education Act of 1965,
20 U.S.C. 1001 et seq. (1965), to comply with certain campus safety-
and security-related requirements. The 2013 VAWA amended the Clery Act
to require higher education institutions to compile statistics for
incidents of dating violence, domestic violence, sexual assault, and
stalking and disclose that information in their annual security
reports. 20 U.S.C. 1092(f)(1)(F)(iii). The Clery Act also requires
disclosure of certain policies, procedures, and programs, including
programs to prevent domestic violence, dating violence, sexual assault,
and stalking and programs to promote the awareness of rape,
acquaintance rape, domestic violence, dating violence, sexual assault,
and stalking among students and employees. 20 U.S.C. 1092(f)(8)(A),
(B). The Department issued regulations in 2014 to implement those
changes to the statute. Final Rule, Violence Against Women Act:
Institutional security policies and crime statistics, 79 FR 62752 (Oct.
20, 2014). <a href="https://www.govinfo.gov/content/pkg/FR-2014-10-20/pdf/2014-24284.pdf">https://www.govinfo.gov/content/pkg/FR-2014-10-20/pdf/2014-24284.pdf</a>. The Violence Against Women Act Reauthorization Act of 2022
did not amend the Clery Act, but it did update the definitions of
``dating violence,'' ``domestic violence,'' and ``stalking'' in VAWA,
which are incorporated into the Clery Act and the current and proposed
Title IX regulations. Public Law 117-103, Division W, Consolidated
Appropriations Act, 2022. The Department proposes updates to the 2020
amendments as necessary to account for these changes.
[[Page 41397]]
The Department acknowledges that recipients and other stakeholders
may have made changes to their policies or procedures to align with the
2020 amendments. For example, schools have been required to revise
existing policies and procedures, or adopt new policies and procedures,
for the 2020-2021 school year and the current 2021-2022 school year in
reliance on the 2020 amendments. Recipients' changes may include--among
others--policies and procedures based on the 2020 amendments' adoption
of a new definition of ``sexual harassment'' and ``notice'' as well as
the deliberate indifference standard, mandatory dismissals, the
requirement for postsecondary recipients to hold live hearings with
cross-examination, and the training of Title IX Coordinators,
investigators, decisionmakers, and other staff regarding the new
requirements. However, stakeholder feedback from the June 2021 Public
Hearing, the 2021 listening sessions, and the 2022 meetings held under
Executive Order 12866 indicated that many recipients did not agree with
the 2020 definition of ``sexual harassment'' and had found that some of
the procedural requirements issued in 2020 made compliance more
difficult for them. Recipients expressed concern that the mandatory
dismissal requirements and live hearing and cross-examination
requirements were having a chilling effect on students who might
otherwise report sex-based harassment. The Department therefore has
good reason to believe that many recipients would appreciate the
flexibility the proposed regulations would afford them to better
fulfill their obligation not to discriminate based on sex in their
education programs or activities. For example, the proposed regulations
would enable recipients to tailor procedures to be effective at
addressing sex discrimination in their educational environment by
providing an option to conduct live hearings with cross-examination or
have the parties meet separately with the decisionmaker and answer
questions submitted by the other party when a credibility assessment is
necessary; an option to provide the parties an opportunity to review
all relevant evidence instead of being obligated to produce a written
investigative report; an option to offer informal resolution when
appropriate without having to wait for a complaint to be filed; and an
option to dismiss complaints when appropriate rather than an obligation
to dismiss in specific circumstances. In addition, some stakeholders
indicated that because the current regulations do not cover many forms
of conduct that may cause a hostile environment based on sex in their
program or activity, they created or repurposed alternative
disciplinary policies to address such conduct. Such stakeholders would
have discretion under the proposed regulations to keep in place
policies and procedures they adopted in reliance on the 2020 amendments
or to change course so long as they meet their obligations.
In addition, while the Department recognizes that there may be
reliance interests related to the current regulations, the Department's
tentative view is that the value of better aligning the regulations
with the objectives of Title IX, as reflected in proposed revisions to
the regulations, substantially outweighs those interests. The proposed
changes would strengthen implementation of Title IX and reduce the
occurrence of sex discrimination within federally funded education
programs or activities. Sex discrimination remains a serious problem
that can derail students from participating and thriving in school. The
Department's proposed changes would clarify Title IX's coverage of all
forms of sex discrimination, strengthen existing protections, and
better position schools to meet their obligation not to discriminate
based on sex. The proposed changes would better ensure that schools
take prompt and effective action to end sex discrimination, including
sex-based harassment, with support for affected students and fair
procedures for all. In short, the proposed regulations would reflect
the statute's text and case law establishing that Title IX protects
students from all forms of sex discrimination, including discrimination
based on sex stereotypes, sex characteristics, pregnancy or related
conditions, sexual orientation, and gender identity. Moreover, as
discussed in the Regulatory Impact Analysis, compliance with the
proposed regulations would result in cost savings to recipients.
The Department has considered the interests that stakeholders may
have in avoiding further changes to recipient policies and procedures
or additional costs that may be required to comply with the proposed
regulations. At the same time, the Department has also considered
stakeholders' interests in having Title IX regulations that are
sufficiently clear to allow for effective implementation and that
provide recipients with flexibility and discretion to meet their Title
IX obligations and to maintain any policies and procedures that do not
conflict with Title IX or the proposed regulations. Based on the
information OCR received during the June 2021 Title IX Public Hearing
and additional listening sessions, as well as the 2022 meetings held
under Executive Order 12866, the Department believes that substantial
interests support each change reflected in the proposed regulations,
that these changes are designed to ensure full implementation of Title
IX's nondiscrimination mandate, and that the benefits of the proposed
changes in facilitating that implementation far outweigh the potential
interests in maintaining the existing regulations. In each instance in
which the Department is proposing to change an existing regulatory
requirement, the preamble acknowledges that change when discussing the
regulation and explains the Department's reasons for proposing the
change. The most significant proposed revisions to the Title IX
regulations are summarized below.
Significant Proposed Regulations
The Department is proposing significant revisions to several
subcategories of the Title IX regulations. The Department discusses
these significant revisions by topic rather than in numerical order.
Generally, the Department does not address proposed regulatory changes
that are technical or otherwise minor in effect.
First, the Department discusses its proposed changes to existing
definitions and its proposed new definitions of terms of general
applicability in the regulations (proposed Sec. 106.2), and its
proposed provisions regarding the effect of other requirements and
preservation of rights (proposed Sec. 106.6). The Department then
clarifies that Title IX obligates a recipient to respond to sex
discrimination within the recipient's education program or activity in
the United States, even if it occurs off-campus, including but not
limited to conduct that occurs in a building owned or controlled by a
student organization that is officially recognized by a postsecondary
institution and conduct that is subject to the recipient's disciplinary
authority. It also requires a recipient to respond to a hostile
environment based on sex within its education program or activity in
the United States, even if sex-based conduct contributing to the
hostile environment occurred outside the recipient's education program
or activity or outside the United States (proposed Sec. 106.11).
Second, the Department discusses a recipient's obligation to
operate its education program or activity free from sex discrimination,
and administrative requirements such as the responsibilities of a
recipient to
[[Page 41398]]
designate a Title IX Coordinator, disseminate a policy of
nondiscrimination on the basis of sex, adopt prompt and equitable
grievance procedures, and keep records to document its Title IX
compliance (proposed Sec. 106.8). The Department also discusses its
proposed notification requirement, which would instruct recipients to
require certain employees to notify the Title IX Coordinator when they
have information about conduct that may constitute sex discrimination
under Title IX, and would require other employees who have information
about conduct that may constitute sex discrimination under Title IX to
either (1) notify the Title IX Coordinator or (2) provide any person
who gives them information about such conduct with the contact
information for the Title IX Coordinator and information about how to
report sex discrimination (proposed Sec. 106.44(c)). The Department
also addresses a recipient's obligation to offer supportive measures,
as appropriate, to a complainant and respondent upon being notified of
conduct that may constitute sex discrimination under Title IX, to the
extent necessary to restore or preserve that party's access to the
recipient's education program or activity (proposed Sec. 106.44(g)).
The Department also discusses its proposed definition of ``sex-
based harassment'' (proposed Sec. 106.2) and explains in more detail
its proposed changes to the regulations regarding grievance procedures
for complaints of sex discrimination (proposed Sec. 106.45), including
its proposals to include the basic requirements for grievance
procedures such as treating the complainant and respondent equitably
(proposed Sec. 106.45(b)(1)); the requirement to objectively evaluate
all relevant evidence that is not otherwise impermissible (proposed
Sec. 106.45(b)(6) and (7)); the standard of proof for all complaints
of sex discrimination (proposed Sec. 106.45(h)(1)); and the
requirement that grievance procedures be followed before the imposition
of any disciplinary sanctions (proposed Sec. 106.45(h)(4)). The
Department also explains proposed bases for discretionary dismissal of
a complaint (proposed Sec. 106.45(d)) and the proposed requirement
that the recipient have a process for the decisionmaker to adequately
assess the credibility of the parties and witnesses to the extent that
credibility is in dispute and relevant to evaluating one or more of the
allegations of sex discrimination (proposed Sec. 106.45(g)). The
Department also describes the additional proposed requirements for
postsecondary institutions in cases of sex-based harassment involving a
student complainant or student respondent (proposed Sec. 106.46),
including the role of an advisor (proposed Sec. 106.46(e)(2)) and
revised hearing procedures (proposed Sec. 106.46(g)). The Department
states that a recipient will not be deemed to have violated the Title
IX regulations solely because the Assistant Secretary would have
reached a different determination than the recipient reached based on
an independent weighing of the evidence in sex-based harassment
complaints (proposed Sec. 106.47).
Third, the Department describes its proposed revisions to the Title
IX regulations related to pregnancy or related conditions as well as
sex discrimination related to marital, parental, and family status, to
provide clarity to recipients about their obligation not to
discriminate against students or employees who are pregnant or
experiencing pregnancy-related conditions. These proposed revisions aim
to ensure that students and employees who are pregnant or experiencing
pregnancy-related conditions are not subject to discrimination based on
sex in education programs or activities and include revisions to the
definitions of ``pregnancy or related conditions'' and ``parental
status'' (proposed Sec. 106.2) as well as revisions to the regulations
on admissions (proposed Sec. 106.21(c)); parental, family, or marital
status of students (proposed Sec. 106.40(a)); pregnancy or related
conditions of students (proposed Sec. 106.40(b)); employment (proposed
Sec. 106.51(b)(6)); parental, family, or marital status of employees
(proposed Sec. 106.57(a)); pregnancy or related conditions of
employees (proposed Sec. 106.57(b) and (e)); and pre-employment
inquiries (proposed Sec. 106.60).
Fourth, the Department proposes to clarify Title IX's scope of
application, including nondiscrimination on the basis of sex
stereotypes, sex characteristics, pregnancy or related conditions,
sexual orientation, and gender identity (proposed Sec. 106.10). The
Department also proposes clarifying Title IX's general prohibition on
sex discrimination in education programs or activities receiving
Federal financial assistance (proposed Sec. 106.31(a)). The preamble
explains that unless otherwise provided by Title IX or the regulations,
in contexts in which a recipient may provide sex-separate programs or
rules, such different treatment must not be applied to individuals in a
way that would cause more than de minimis harm, which includes adopting
a policy or engaging in a practice that prevents a person from
participating in an education program or activity consistent with their
gender identity (proposed Sec. 106.31(a)(2)).
Fifth, the Department discusses proposed revisions to the
prohibition on retaliation (proposed Sec. 106.71) that would build on
the current regulations and further clarify what types of conduct would
constitute prohibited retaliation, including peer retaliation.
Finally, the Department explains its proposal to delete outdated
regulatory provisions (Sec. 106.2(s) Definition of Transition Plan;
Sec. 106.3(c) and (d) Self-evaluation; Sec. 106.15(b) Admissions;
Sec. Sec. 106.16-106.17 Transition Plans; Sec. 106.21(a) Admission;
and Sec. 106.41(d) Adjustment period).
It is the Department's intent that the severability clauses set out
in Sec. Sec. 106.9, 106.18 (proposed to be redesignated at Sec.
106.16), 106.24, 106.46 (proposed to be redesignated as Sec. 106.48),
106.62, and 106.72 of the 2020 amendments remain applicable to the
proposed changes set out below. As discussed in the 2020 amendments, it
is the Department's position that each of the proposed regulations
discussed in this preamble would serve an important, related, but
distinct purpose. 85 FR 30538. Each provision provides a distinct value
to recipients, elementary schools, secondary schools, postsecondary
institutions, students, employees, the public, taxpayers, the Federal
government, and other recipients of Federal financial assistance
separate from, and in addition to, the value provided by the other
provisions. To best serve these purposes, the continued application of
the severability clauses in the 2020 amendments clarifies that the
proposed regulations operate independently of each other and that the
potential invalidity of one provision should not affect the other
provisions. In addition, the Department intends that any final
regulations following these proposed regulations be enforced
prospectively and not retroactively.
I. Provisions of General Applicability
Statute: Title IX states that ``[n]o person in the United States
shall, on the basis of sex, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial assistance,''
20 U.S.C. 1681(a), but does not specify how recipients can meet their
Title IX obligations. The Department has the authority to ``effectuate
the provisions'' of the Title IX prohibition on discrimination on the
basis of sex in
[[Page 41399]]
education programs or activities receiving Federal financial
assistance, specifically under 20 U.S.C. 1682 and generally under 20
U.S.C. 1221e-3 and 3474. Title IX also provides that the Department may
secure compliance by ``the termination of or refusal to grant or to
continue assistance,'' or ``by any other means authorized by law.'' 20
U.S.C. 1682. The Department may take such action only after providing a
recipient with notice of the failure to comply with the statute and the
Department's regulatory requirements under Title IX and after
determining that ``compliance cannot be secured by voluntary means.''
Id.
A. Purpose
Section 106.1 Purpose and Effective Date
Current regulations: Section 106.1 has the heading of ``Purpose and
effective date.'' Current Sec. 106.1 states that the purpose of the
regulations is ``to effectuate title IX of the Education Amendments of
1972, as amended by Pub. L. 93-568, 88 Stat. 1855 (except sections 904
and 906 of those Amendments) which is designed to eliminate (with
certain exceptions) discrimination on the basis of sex in any education
program or activity receiving Federal financial assistance, whether or
not such program or activity is offered or sponsored by an educational
institution as defined in this part.'' Current Sec. 106.1 further
states that the regulations are ``intended to effectuate section 844 of
the Education Amendments of 1974, Pub. L. 93-380, 88 Stat. 484.''
Finally, current Sec. 106.1 provides that the effective date of the
regulations is July 21, 1975.
Proposed regulations: The Department proposes consolidating the
reference to Title IX in the first sentence by removing ``of the
Education Amendments of 1972, as amended by Pub. L. 93-568, 88 Stat.
1855 (except sections 904 and 906 of those Amendments).'' The
Department also proposes removing the sentence that identifies the
effective date of the regulations.
Reasons: Current Sec. 106.2 defines ``Title IX'' and proposed
Sec. 106.2 would retain this definition of Title IX with minor
revisions for completeness, accuracy, and readability. Because proposed
Sec. 106.2 would define ``Title IX,'' the Department proposes removing
the legislative history of Title IX from Sec. 106.1. In addition, it
is the Department's view that it is unnecessary to retain a reference
to the original effective date of the Title IX regulations in light of
the passage of time since the enactment of Title IX and the several
amendments that have followed. Because proposed Sec. 106.1 would no
longer include the effective date, the Department also proposes
revising the section heading to ``Purpose.''
B. Definitions
The Department proposes including all definitions in Sec. 106.2,
the original regulatory section containing definitions for all of the
Department's Title IX implementing regulations. As part of the 2020
amendments, the Department added a separate definitions section, Sec.
106.30, that included definitions related to a recipient's obligation
to address sexual harassment. Because the definitions in that section
pertain to a recipient's general obligations to take action to end sex
discrimination, the Department proposes moving these definitions to
Sec. 106.2.
The Department also proposes to reorganize the definitions at Sec.
106.2. The existing definitions section does not present the
definitions alphabetically, which may create confusion for recipients
and others. Proposed Sec. 106.2 would reorder the definitions to
present them in alphabetical order. The Department also proposes
technical edits to accommodate the consolidation of the definitions
into Sec. 106.2 and associated numbering changes.
Because the Department proposes consolidating all definitions into
Sec. 106.2, the proposed regulatory text would include existing
definitions in current Sec. 106.2, as well as definitions that are new
to that section. The Department limits its discussion in this preamble
to the definitions that the Department proposes adding and the
definitions for which the Department is proposing changes that are not
exclusively technical in nature.
Immediately below, the Department discusses proposed revisions to
definitions and new definitions that apply throughout the Title IX
regulations. In later topical sections of this preamble, the Department
discusses proposed definitions relevant to those topics.
Section 106.2 Definition of ``Administrative Law Judge''
Current regulations: Section 106.2(f) defines ``administrative law
judge'' as ``a person appointed by the reviewing authority to preside
over a hearing held under this part.''
Proposed regulations: The Department proposes changing the
reference to a hearing held ``under this part'' to refer to a hearing
held ``under Sec. 106.81.''
Reasons: The proposed definition would replace the general
reference to ``a hearing held under this part'' with a specific
reference to a hearing held under Sec. 106.81. This clarification is
necessary to distinguish a hearing conducted as part of a postsecondary
institution's sex-based harassment grievance procedures in proposed
Sec. 106.46 from a hearing conducted by an administrative law judge to
secure a recipient's compliance with Title IX. Current and proposed
Sec. 106.81 adopt and incorporate into the Title IX regulations the
procedural provisions applicable to Title VI of the Civil Rights Act of
1964, specifically 34 CFR 100.6-100.11 and part 101. Proposed
Sec. Sec. 106.2 (definition of ``retaliation'') and 106.46 discuss
hearings conducted as part of a recipient's sex-based harassment
grievance procedures.
Section 106.2 Definition of ``Applicant''
Current regulations: Section 106.2(j) defines ``applicant'' as
``one who submits an application, request, or plan required to be
approved by a Department official, or by a recipient, as a condition to
becoming a recipient.''
Proposed regulations: The Department proposes adding language to
clarify that this definition refers to the use of the term
``applicant'' in the definition of ``educational institution'' in Sec.
106.2 and to the use of the term ``applicant'' in Sec. 106.4.
Reasons: The proposed regulations would clarify that the definition
of ``applicant'' in proposed Sec. 106.2, which refers to one who seeks
to become a recipient, applies only to the use of the term
``applicant'' in the definition of ``educational institution'' in
current Sec. 106.2 and to the use of the term ``applicant'' in Sec.
106.4. In other provisions in the current and proposed regulations,
applicant refers to one who is applying for admission as a student or
other participant in a recipient's education program or activity (e.g.,
Sec. 106.21) or applying for employment (e.g., Sec. 106.51). Because
the definition of ``applicant'' in current Sec. 106.2 does not apply
throughout the regulations, the Department proposes revising the
definition to identify the specific provisions to which this definition
applies.
Section 106.2 Definitions of ``Elementary School'' and ``Secondary
School''
Current regulations: Section 106.30(b) defines an ``elementary and
secondary school'' for purposes of Sec. Sec. 106.44 and 106.45 as a
``local educational agency (LEA), as defined in the Elementary and
[[Page 41400]]
Secondary Education Act of 1965, as amended by the Every Student
Succeeds Act (ESEA); a preschool; or a private elementary or secondary
school.''
Proposed regulations: The Department proposes removing the
definition of ``elementary and secondary school'' and, in its place
providing separate definitions of ``elementary school'' and ``secondary
school'' in Sec. 106.2. Proposed Sec. 106.2 would define an
``elementary school'' as that term is defined by section 8101 of the
ESEA (20 U.S.C. 7801(19)), and a ``public or private preschool.''
Proposed Sec. 106.2 would define a ``secondary school'' as that term
is defined by section 8101 of the ESEA (20 U.S.C. 7801(45)), and an
``institution of vocational education'' as defined in Sec. 106.2 that
serves secondary school students.
Reasons: The proposed definitions of both ``elementary school'' and
``secondary school'' would remove the references to current Sec. Sec.
106.44 and 106.45 that are in the current definition of ``elementary
and secondary school,'' because those sections are limited to sexual
harassment, whereas the proposed definitions would apply to all
provisions within part 106. The proposed definitions also would remove
explicit references to private schools because these schools are
already included in the ESEA definitions of ``elementary school'' and
``secondary school,'' making these references unnecessary.
The proposed revisions would separately define ``elementary
school'' and ``secondary school'' because there is a provision in the
proposed regulations that distinguishes between elementary schools and
secondary schools. For consistency with the Title IX statute at 20
U.S.C. 1681(c), which states that Title IX applies to public and
private preschools, the proposed definition of ``elementary school''
also would cover a public or private preschool. The ESEA does not
separately define ``preschool'' and the Department has not previously
done so in its Title IX regulations. The Department's position remains
that a separate definition of ``preschool'' is not necessary and that
public and private preschools fall within the proposed definition of
``elementary school.''
The proposed definition of ``secondary school'' would also cover an
institution of vocational education that serves secondary school
students. This addition is necessary to ensure coverage of secondary
school students who attend vocational institutions and to align with
the definition of ``postsecondary institution'' in both the current and
proposed regulations, which includes institutions of vocational
education that serve postsecondary school students. As defined in
current Sec. 106.2(o) and proposed Sec. 106.2, an ``institution of
vocational education'' could serve both secondary and postsecondary
school students but secondary school students attending institutions of
vocational education are unaccounted for in the current definition of
``elementary and secondary school.''
Section 106.2 Definition of ``Postsecondary Institution''
Current regulations: Section 106.30(b) defines ``postsecondary
institution'' for purposes of Sec. Sec. 106.44 and 106.45 as an
institution of graduate higher education as defined in Sec. 106.2(l),
an ``institution of undergraduate higher education'' as defined in
Sec. 106.2(m), an ``institution of professional education'' as defined
in Sec. 106.2(n), or an ``institution of vocational education'' as
defined in Sec. 106.2(o).
Proposed regulations: The Department proposes moving the definition
of ``postsecondary institution'' from Sec. 106.30(b) to Sec. 106.2
with minor revisions. Proposed Sec. 106.2 would define a
``postsecondary institution'' as an ``institution of graduate higher
education'' as defined in Sec. 106.2, an ``institution of
undergraduate higher education'' as defined in Sec. 106.2, an
``institution of professional education'' as defined in Sec. 106.2, or
an ``institution of vocational education'' as defined in Sec. 106.2
that serves postsecondary school students.
Reasons: The proposed definition would remove specific references
to Sec. Sec. 106.44 and 106.45 in the current definition of
``postsecondary institution'' because those sections are limited to
sexual harassment, whereas the proposed definition of ``postsecondary
institution'' in Sec. 106.2 would apply to all of part 106. The
proposed revisions also would clarify that the definition of
``postsecondary institution'' applies to an ``institution of vocational
education'' as defined in Sec. 106.2 that serves postsecondary
students. It is the Department's current view that this clarification
is necessary because an ``institution of vocational education,'' as
defined in Sec. 106.2, could serve secondary school students or
postsecondary institution students.
Section 106.2 Definition of ``Student With a Disability''
Current regulations: None.
Proposed regulations: The Department proposes adding a definition
of ``student with a disability'' to mean a student who is an individual
with a disability who would be covered by Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. 705(9)(B), (20)(B), or a child
with a disability as defined in the Individuals with Disabilities
Education Act, 20 U.S.C. 1401(3).
Reasons: It is the Department's view that it is important to
clarify how a recipient's Title IX obligations intersect with its
obligation to ensure the rights of students with disabilities. The
proposed regulations include provisions in Sec. Sec. 106.8(e) and
106.44(g)(7) that would require a recipient to consider the
requirements of Federal disability laws when implementing the Title IX
regulations. A definition of a ``student with a disability'' is
necessary for recipients to understand the scope of these two sets of
obligations and how they intersect, and thus would strengthen overall
enforcement of Title IX.
Section 106.2 Definition of ``Title IX''
Current regulations: Section 106.2(a) defines ``Title IX'' as
``title IX of the Education Amendments of 1972, Pub. L. 92-318, as
amended by section 3 of Pub. L. 93-568, 88 Stat. 1855, except sections
904 and 906 thereof; 20 U.S.C. 1681, 1682, 1683, 1685, 1686.''
Proposed regulations: The Department proposes updating this
definition to incorporate statutory additions of sections 1687 and 1688
and to simplify its language.
Reasons: The current definition omits two sections of Title IX that
were added in 1988 and relies on unnecessarily legalistic language. The
proposed definition would be a more complete and accurate description
of Title IX and it is presented in more accessible language.
C. Application
Section 106.11 Application
Current regulations: Section 106.11 states that, except as provided
in this subpart, the Department's Title IX regulations apply to every
recipient and its education program or activity that receives Federal
financial assistance. The Civil Rights Restoration Act of 1987 amended
Title IX to add a definition of ``program or activity.'' 20 U.S.C.
1687. In 2000, the Department amended the Title IX regulations to
incorporate the statutory definition of ``program or activity'' at 34
CFR 106.2(h), which provides that a recipient's education program or
activity encompasses all of its operations. 65 FR 68050 (Nov. 13,
2000). Current Sec. 106.44(a) defines an ``education program or
activity'' for purposes of Sec. Sec. 106.30, 106.44, and 106.45 to
include locations, events, or circumstances over which the recipient
[[Page 41401]]
exercised substantial control over both the respondent and the context
in which the sexual harassment occurs, and also includes any building
owned or controlled by a student organization that is officially
recognized by a postsecondary institution. Current Sec. Sec. 106.8(d)
and 106.44(a) limit the geographic scope of a recipient's obligation to
address sexual harassment to incidents that occurred against a person
while that person was in the United States. In addition, current Sec.
106.45(b)(3)(i) requires a recipient to dismiss a formal complaint of
sexual harassment if the alleged conduct did not occur against a person
while that person was in the United States.
Proposed regulations: The Department proposes amending Sec.
106.11, to clarify that Title IX's prohibition on sex discrimination
applies to all sex discrimination occurring both under a recipient's
education program or activity and in the United States. The proposed
regulations would make clear that conduct that occurs under a
recipient's education program or activity includes but is not limited
to conduct that occurs in a building owned or controlled by a student
organization that is officially recognized by a postsecondary
institution, which is consistent with current Sec. 106.44(a), and
conduct that is subject to the recipient's disciplinary authority. It
would also specify that a recipient has an obligation to address a sex-
based hostile environment under its education program or activity, even
if sex-based harassment contributing to that hostile environment
occurred outside the recipient's education program or activity or
outside the United States. Finally, the Department proposes eliminating
the language in current Sec. 106.44(a) that defines ``education
program or activity'' for purposes of sexual harassment to ensure that
the term is applied uniformly throughout the regulations for all forms
of sex discrimination, including sex-based harassment.
Reasons: Title IX states that ``[n]o person in the United States
shall, on the basis of sex, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial assistance.''
20 U.S.C. 1681(a). This statutory prohibition limits Title IX's
application in two ways: the sex discrimination must occur (1) under
the recipient's program or activity, and (2) against a person in the
United States.
The current regulations require a recipient to dismiss a formal
complaint of sexual harassment and not use its Title IX grievance
process if the conduct did not occur against a person in the United
States, even if that conduct contributes to a hostile environment in
the recipient's education program or activity in the United States.
After receiving input from stakeholders, the Department has
reconsidered its prior interpretation of Title IX's statutory language
from the 2020 amendments and proposes revising the current regulations
to more clearly and completely describe the circumstances in which
Title IX applies. In proposed Sec. 106.11, consistent with 20 U.S.C.
1687, the Department would clarify that an education program or
activity includes all of the recipient's operations and that conduct
occurring under a recipient's education program or activity would
include but is not limited to conduct that occurs in a building owned
or controlled by a student organization that is officially recognized
by a postsecondary institution and conduct that is ``under the school's
disciplinary authority.'' See Davis, 526 U.S. at 646-47 (concluding
``that recipients of federal funding may be liable for `subject[ing]'
their students to discrimination . . . [for] acts of student-on-student
sexual harassment [when] the harasser is under the school's
disciplinary authority''). Proposed Sec. 106.11 would also recognize
that even when an act of sex-based harassment occurs outside the
recipient's education program or activity, or outside the United
States, that conduct could contribute to a hostile environment based on
sex under the recipient's education program or activity, or otherwise
exclude a person from participation in, deny them the benefits of, or
subject them to sex discrimination under the recipient's education
program or activity in the United States. If such sex discrimination
occurs, the recipient must address it.
Obligation to address conduct occurring within the school's
operations. Under the proposed regulations, consistent with the current
regulations, a recipient's education program or activity would include
buildings or locations that are part of the school's operations,
including online learning platforms. 34 CFR 106.44(a). A recipient's
education program or activity would also include all of its academic
and other classes, extracurricular activities, athletics programs, and
other aspects of the recipient's education program or activity, whether
those programs or activities take place in the facilities of the
recipient, via computer and internet networks, on digital platforms,
with computer hardware or software owned, operated by, or used in the
operations of the recipient, on a school bus, at a class or training
program sponsored by the recipient at another location, or elsewhere.
The Department's discussion in the preamble to the 2020 amendments
regarding Title IX and online platforms used by a recipient would thus
remain relevant under the proposed regulations. Specifically, in the
preamble to the 2020 amendments the Department explained that the
operations of a recipient ``may certainly include computer and internet
networks, digital platforms, and computer hardware or software owned or
operated by, or used in the operations of, the recipient.'' 85 FR
30202. The Department further explained that ``the factual
circumstances of online harassment must be analyzed to determine if it
occurred in an education program or activity.'' Id. The Department
would maintain the same position in the proposed regulations as stated
in the preamble to the current regulations: The definition of ``program
or activity'' in the Title IX regulations does not create a distinction
between sex discrimination occurring in person and that occurring
online. Id. at 30203.
Under the proposed regulations, consistent with the current
regulations, conduct occurring under a recipient's education program or
activity would extend to conduct in off-campus settings that are
operated or overseen by the school (e.g., a school field trip) and off-
campus buildings owned or controlled by a student organization
officially recognized by a postsecondary institution. Id.; 85 FR 30196-
98; see, e.g., Farmer v. Kan. State Univ., 16-cv-2256-JAR-GEB, 2017 WL
980460, at *7-10 (D. Kan. Mar. 14, 2017) (finding plaintiff
sufficiently alleged that Kansas State University exercised substantial
control over off-campus assault at a fraternity because the fraternity
was subject to oversight by University and University had the authority
to discipline fraternity), aff'd on other grounds, 918 F.3d 1094 (10th
Cir. 2019); Weckhorst v. Kan. State Univ., 241 F. Supp. 3d 1154, 1166-
70 (D. Kan. 2017), aff'd sub nom. Farmer v. Kan. State Univ., 918 F.3d
1094 (10th Cir. 2019) (holding plaintiff sufficiently alleged that
Kansas State University exercised substantial control over off-campus
assault that occurred during a fraternity event at a local park because
the University subjected the fraternity to oversight and had the
authority to discipline fraternity); S.C. v. Metro. Gov't of Nashville,
No. 17-1098, 2022 WL 127978, *25 (M.D. Tenn. Jan. 12, 2022), appeal
pending (noting that the Court's ``formulation of potential
[[Page 41402]]
liability for peer harassment notably shied away from drawing a hard
line based on geography, focusing instead on whether the harassment was
taking place `under' an `operation' of the funding recipient'' (citing
Davis, 526 U.S. at 646)).
Obligation to address conduct that occurs under the school's
disciplinary authority. Conduct occurring under a recipient's education
program or activity would also include other settings in the United
States but off campus or off school grounds when the conduct ``is under
the school's disciplinary authority.'' Davis, 526 U.S. at 647; cf.
Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038, 2045 (2021) (noting a
school's ``regulatory interests remain significant in some off-campus
circumstances'' and ``several types of off-campus behavior . . . may
call for school regulation,'' including ``serious or severe bullying or
harassment targeting particular individuals [and] threats aimed at
teachers or other students''). Thus, the proposed regulations would
adopt the Department's recognition in the preamble to the 2020
amendments that a teacher's sexual harassment of a student is
``likely'' to constitute sexual harassment ``in the program'' of the
school even if the harassment occurs off campus or off school grounds
and outside a school-sponsored activity. 85 FR 30200.
In addition, some schools have codes of conduct that address
interactions, separate from discrimination, between students that occur
off campus. If a school has such a code of conduct, then it may not
disclaim responsibility for addressing sex discrimination that occurs
in a similar context. If the school responds when, for instance, one
student steals from another at an off-campus location, or when a
student engages in a nonsexual assault of another student at an off-
campus location, it must likewise respond when a student engages in
sexual assault or sex-based harassment of another student off campus.
Thus, the proposed rule would make clear, as in the 2020 amendments,
that whether conduct falls under a recipient's education program or
activity for purposes of Title IX is not contingent on the geographic
location of the underlying conduct, but rather on whether the recipient
exercises disciplinary authority over the respondent's conduct in that
context. See, e.g., DeGroote v. Ariz. Bd. of Regents, No. CV-18-00310-
PHX-SRB, 2020 WL 10357074, at *8 (D. Ariz. Feb. 7, 2020) (finding a
school exercised control over harasser and context of harassment, in
part, because the school's code of conduct addressed off-campus
behavior and because the location of the initial harassment ``is not
dispositive'').
Obligation to address hostile environment created by conduct
outside of the education program or activity. Proposed Sec. 106.11
would also clarify that Title IX obligates a recipient to address a
hostile environment occurring within the recipient's education program
or activity, even if the underlying sex-based harassment contributing
to the hostile environment does not occur in the recipient's education
program or activity or occurs outside the United States.
During OCR's numerous listening sessions and in the June 2021 Title
IX Public Hearing, many stakeholders indicated that the current
regulations could be interpreted to exclude conduct that occurs off
campus or off school grounds outside of a recipient's education program
or activity, or that occurs in a program or activity but outside the
United States, even when that conduct creates a hostile environment
based on sex in an education program or activity within the United
States. They further asserted that Title IX requires a recipient to
address a hostile environment based on sex in the recipient's education
program or activity, regardless of whether the sex-based harassment
contributing to that hostile environment occurred elsewhere. The
Department takes seriously these comments and agrees that clarification
is needed. After considering this issue and reweighing the facts and
circumstances, including this feedback, the Department proposes
regulatory language to enforce the full scope of Title IX's
nondiscrimination mandate and ensure that recipients provide a
nondiscriminatory environment for all students within their programs
and activities in the United States. Proposed Sec. 106.11 would
clarify that Title IX's prohibition on sex discrimination would apply
to a hostile environment under a recipient's education program or
activity, even if sex-based harassment contributing to such a hostile
environment occurred outside of the recipient's education program or
activity or occurred within an education program or activity but
outside of the United States.
In the preamble to the 2020 amendments, the Department explained
that in the context of a private lawsuit for monetary damages, the
Supreme Court applied Title IX's program or activity language to ``
`limit a recipient's damages liability to circumstances wherein the
recipient exercises substantial control over both the harasser and the
context in which the known harassment occurs.' '' 85 FR 30196 (quoting
Davis, 526 U.S. at 645). The Department acknowledged that the Court's
decision was in the context of a lawsuit for monetary damages and not
in the administrative enforcement context, but stated that because the
Department, like the Court, is constrained by the text of the statute,
including the definition of ``program or activity,'' a similar analysis
is appropriate in the administrative enforcement context. Id. at 30196
n.863. The Department recognizes that some Federal courts in private
suits for monetary damages have held a school not liable under Title IX
for harassment that occurred outside of the recipient's control. See,
e.g., Roe v. St. Louis Univ., 746 F.3d 874, 883-84 (8th Cir. 2014)
(holding that there was insufficient evidence alleged to demonstrate
that university was deliberately indifferent to plaintiff's allegations
of rape by a fellow student in a private residence over which the
University exercised no control); Samuelson v. Or. State Univ., 162 F.
Supp. 3d 1123, 1132-34 (D. Or. 2016) (finding that plaintiff did not
allege facts to demonstrate university had any control over a rape by a
non-student at a private apartment for purposes of ``pre-assault
liability'' and dismissing as time-barred plaintiff's allegations of
deliberate indifference following her report of the rape to the
university). In those cases, however, there were no actionable
allegations that the schools were deliberately indifferent to a hostile
environment based on sex within the recipient's education program or
activity.
Indeed, several Federal courts have held that, even for purposes of
monetary damages under Davis, Title IX requires recipients to evaluate
and address allegations of a hostile environment within a recipient's
education program or activity, even when an initial incident of sex-
based harassment may have occurred outside of the recipient's education
program or activity. See, e.g., Rost v. Steamboat Springs RE-2 Sch.
Dist., 511 F.3d 1114, 1121 n.1 (10th Cir. 2008) (citing Davis, 526 U.S.
at 645) (recognizing that sexual assault occurring in settings outside
of the school can create Title IX liability, as long as there is ``some
nexus between the out-of-school conduct and the school,'' but finding
that in this case, the district's response to such conduct was not
deliberately indifferent); Spencer v. Univ. of N.M. Bd. of Regents, 15-
cv-141-MCA-SCY, 2016 WL 10592223, at *6 (D.N.M. Jan. 11, 2016)
(concluding that a reasonable jury could
[[Page 41403]]
find the recipient deliberately indifferent for its failure to address
the risk created by the possibility of future encounters between the
plaintiff and the men who raped her off campus); L.E. v. Lakeland Joint
Sch. Dist. #272, 403 F. Supp. 3d 888, 900-01 (D. Idaho 2019) (finding
that the district was responsible for responding to a hostile
environment in its education program or activity even where the initial
sexual assault occurred outside the school's education program or
activity).
The Department's current view is that these decisions are correct
in reading Davis to require a recipient to address a hostile
environment based on sex that exists within its education program or
activity, whether or not the initial sex-based harassment or other
contributing acts of sex-based harassment may have occurred elsewhere.
This is because when the hostile environment exists within a
recipient's education program or activity, the recipient exercises
substantial control over both the harasser and the context. See Davis,
526 U.S. at 645. A recipient cannot, therefore, sever incidents that
happened outside of its education program or activity from any
subsequent harassment or resulting hostile environment within the
recipient's control. L.E., 403 F. Supp. 3d at 900. To do so would allow
``a person'' to be ``subjected to discrimination under an[ ] education
program or activity receiving Federal financial assistance'' in
violation of Title IX's explicit text. 20 U.S.C. 1681(a).
For example, Student A reports that Student B sexually assaulted
her while participating in the recipient's study abroad program and
both students have now returned to campus in the United States. Student
A reports that Student B has been taunting her with sexually suggestive
comments about the prior assault since their return to campus. Because
of the sexual assault and Student B's continuing conduct, Student A is
unable to concentrate or participate fully in her classes and
activities where Student B is present. In this scenario, because
Student A has alleged a hostile environment based on sex within the
recipient's education program or activity within the United States, the
recipient would have an obligation to take action to address those
allegations. The proposed regulations would require the recipient to
provide Student A with appropriate supportive measures and, if the
recipient's investigation finds that a hostile environment exists
within its education program or activity, take action against Student B
after following all applicable grievance procedures.
Evaluating whether a hostile environment exists as a result of
conduct that is otherwise not covered by Title IX is a fact-specific
inquiry. Consistent with Federal case law, when sex-based harassment
occurs outside of the United States or outside of a recipient's
education program or activity, it will not always result in a hostile
environment that is within a recipient's control. The definition of
``sex-based harassment'' in proposed Sec. 106.2 would set out the
minimum factors that must be considered in determining whether a
hostile environment has been created in a recipient's education program
or activity. These factors would also apply when determining whether
sex-based harassment that occurred outside of a recipient's education
program or activity has created a sex-based hostile environment in a
recipient's education program or activity. A recipient should also
consider in its fact-specific inquiry whether a complainant's
encounters with an alleged respondent in the recipient's education
program or activity give rise to a hostile environment, even when the
incidents of harassment occurred outside of the recipient's education
program or activity. See Williams v. Bd. of Regents of Univ. Sys. of
Ga., 477 F.3d 1282, 1296-98 (11th Cir. 2007) (reasoning that Title IX
claim could arise when a student withdrew from university rather than
risk encountering her alleged perpetrators on campus when school waited
months before taking action in response to her complaint); Kinsman v.
Fla. State Univ. Bd. of Trustees, No. 4:15cv235-MW/CAS, 2015 WL
11110848, at *4 (N.D. Fla. Aug. 12, 2015) (holding that the effect of
sex-based harassment does not end with the cessation of the harassing
conduct, particularly when the complainant and respondent both remain
at the institution and agreeing ``that the possibility of further
encounters `between a rape victim and her attacker could create an
environment sufficiently hostile to deprive the victim of access to
educational opportunities provided by a university.' '' (citation
omitted)); Spencer, 2016 WL 10592223, at *6 (`` `[A] reasonable jury
[may] conclude that further encounters, of any sort, between a rape
victim and her attacker could create an environment sufficiently
hostile to deprive the victim of access to educational opportunities
provided by a university.' '' (quoting Kelly v. Yale Univ., No. 3:01-
CV-1591, 2003 WL 1563424, at *3 (D. Conn. Mar. 26, 2003))); Doe v.
Derby Bd. of Educ., 451 F. Supp. 2d 438, 444 (D. Conn. 2006) (holding
that the ``constant potential for interactions'' between a harasser and
rape victim due to the harasser's presence on campus could constitute
sex-based harassment); Crandell v. N.Y. Coll. of Osteopathic Med., 87
F. Supp. 2d 304, 316 (S.D.N.Y. 2000) (harassment by former professor at
off-campus internship required Title IX response by school when ``the
presence of the perpetrator at the institution would be expected to
create a hostile environment''). In evaluating whether there is a
hostile environment, courts have reiterated that recipients must adopt
a `` `totality of the circumstances' approach that rejects the
disaggregation of the allegations and requires only that the alleged
incidents cumulatively have resulted in the creation of a hostile
environment.'' Crandell, 87 F. Supp. 2d at 319.
In the circumstances in which sex-based harassment occurs outside a
recipient's education program or activity or outside the United States,
and the harassment does not contribute to a hostile environment within
the recipient's education program or activity, proposed Sec. 106.11
would clarify that Title IX does not apply. For example, Student C
reports she was sexually assaulted in a nightclub off campus by a third
party who does not live in the area. Student C is now experiencing
emotional distress and is unable to attend classes. Because the assault
occurred off campus, and the respondent is not a representative of the
recipient or otherwise a person over whom the recipient exercises
disciplinary authority, the assault did not occur within the
recipient's education program or activity. And because Student C is not
alleging a hostile environment within the education program or activity
due to the respondent's presence or additional harassment she is
experiencing, proposed Sec. 106.11 clarifies that a recipient's Title
IX obligations would not be implicated. The recipient would still be
encouraged to provide supportive measures to Student C and refer
Student C to local law enforcement.
Finally, the proposed regulations would also recognize that when
sex discrimination other than sex-based harassment occurs outside of a
recipient's education program or activity, or outside of the United
States, but causes sex discrimination within the recipient's education
program or activity, Title IX would require the recipient to address
this sex discrimination as well. For example, a student in a
recipient's study abroad program complains that he was
[[Page 41404]]
subjected to different treatment in grading based on sex by a professor
and, as a result, the student lost his scholarship. Under proposed
Sec. 106.11, the recipient would be required to address the complaint
because, although the different treatment in grading occurred outside
of the United States, that conduct caused discrimination based on sex
in the recipient's education program in the United States. This
response would include compliance with applicable grievance procedures,
including investigating the complaint, and, if discrimination is found,
taking steps to remedy the resulting discrimination. For instance, the
recipient may remove the discriminatory grade from the student's
transcript and reinstate the scholarship. In addition, there may be
circumstances in which the recipient itself is alleged to have engaged
in sex discrimination in its program outside the United States. When
such conduct causes sex discrimination in its education program or
activity within the United States, the recipient must address it.
D. The Effect of Other Requirements and Preservation of Rights
Section 106.6(e) Effect of Section 444 of General Education Provisions
Act (GEPA)/Family Educational Rights and Privacy Act (FERPA)
Current regulations: Current Sec. 106.6(e) states that the
obligation to comply with the regulations in part 106 is not obviated
or alleviated by the FERPA statute, 20 U.S.C. 1232g, or FERPA
regulations, 34 CFR part 99.
Proposed regulations: No proposed change.
Reasons: The Family Educational Rights and Privacy Act (FERPA)
protects the privacy of students' education records and personally
identifiable information contained therein. Privacy is an important
factor that the Department carefully considered in promulgating the
proposed regulations and recipients will need to consider this factor
in implementing them.
To the extent that there may be circumstances in which a conflict
exists between a recipient's obligations under Title IX and under
FERPA, the Department would maintain the provision in Sec. 106.6(e)
that expressly states that the obligation to comply with the Title IX
regulations is not obviated or alleviated by the FERPA statute or
regulations. 85 FR 30424. As the General Education Provisions Act
(GEPA) provides, nothing in that statute shall be construed to ``affect
the applicability of title VI of the Civil Rights Act of 1964 [42
U.S.C. 2000d et seq.], title IX of the Education Amendments of 1972 [20
U.S.C. 1681 et seq.], title V of the Rehabilitation Act of 1973 [29
U.S.C. 791 et seq.], the Age Discrimination Act [42 U.S.C. 6101 et
seq.], or other statutes prohibiting discrimination, to any applicable
program.'' 20 U.S.C. 1221(d). The Department has long interpreted this
provision to mean that ``FERPA continues to apply in the context of
Title IX enforcement, but if there is a direct conflict between the
requirements of FERPA and the requirements of Title IX, such that
enforcement of FERPA would interfere with the primary purpose of Title
IX to eliminate sex-based discrimination in schools, the requirements
of Title IX override any conflicting FERPA provisions.'' 85 FR 30424.
Some aspects of the proposed regulations address areas in which
recipients may also have obligations under FERPA or its implementing
regulations, 34 CFR part 99, for example, provisions regarding the
exercise of rights by parents, guardians, or other authorized legal
representatives at proposed Sec. 106.6(g); disclosure of supportive
measures at proposed Sec. 106.44(g)(5); consolidation of complaints at
proposed Sec. 106.45(e); a description of the relevant evidence at
proposed Sec. 106.45(f)(4); access to an investigative report or
relevant and not otherwise impermissible evidence at proposed Sec.
106.46(e)(6); and notification of the determination of a sex
discrimination complaint at proposed Sec. Sec. 106.45(h)(2) and
106.46(h)(1). The Department is seeking comments on the intersection
between the proposed Title IX regulations and FERPA, any challenges
that recipients may face as a result of the intersection between the
two laws, and any steps the Department might take to address those
challenges in the Title IX regulations.
Section 106.6(g) Exercise of Rights by Parents, Guardians, or Other
Authorized Legal Representatives
Current regulations: Section 106.6(g) states that the Department's
Title IX regulations must not be read in derogation of any legal right
of a parent or guardian to act on behalf of a complainant, respondent,
party, or other individual, subject to the obligation to comply with
the Family Educational Rights and Privacy Act, 20 U.S.C. 1232g. This
right to act on behalf of another includes but is not limited to,
filing a formal complaint.
Proposed regulations: The Department proposes clarifying in this
section that an authorized legal representative has the right to act on
behalf of a complainant, respondent, or other person, subject to
proposed Sec. 106.6(e), including but not limited to making a
complaint through the recipient's grievance procedures for complaints
of sex discrimination, as would a parent or guardian.
Reasons: Upon reexamining this provision, the Department proposes
adding to the current regulations the term ``authorized legal
representative'' to fill a gap in the existing regulations that was
brought to the Department's attention in listening sessions with a wide
array of stakeholders, including students, parents, educators, school
officials, and advocacy organizations. Throughout the United States, an
individual in the role of an educational representative or another
similar role is legally authorized to act on behalf of certain youth in
out-of-home care but is not necessarily deemed a parent or guardian.
The Department proposes adding the term ``authorized legal
representative'' to Sec. 106.6(g), recognizing that although
terminology may differ across States and contexts, there is a critical
need to empower these individuals to act on behalf of another person,
consistent with their legal authority, in matters addressed by the
proposed regulations.
Section 106.6(h) and 106.6(b) Preemptive Effect
Current regulations: Section 106.6(h) states that, to the extent
there is any conflict between State or local law and the Title IX
regulations at Sec. Sec. 106.30, 106.44, and 106.45, the obligation to
comply with those sections is not obviated or alleviated by any State
or local law. Current Sec. 106.6(b) states that the obligation to
comply with part 106 is not obviated or alleviated by any State or
local law or other requirement which would render any applicant or
student ineligible, or limit the eligibility of any applicant or
student, on the basis of sex, to practice any occupation or profession.
Proposed regulations: The Department proposes eliminating Sec.
106.6(h) entirely and simplifying Sec. 106.6(b) to make clear that all
of the Title IX regulations would preempt State or local law. Proposed
Sec. 106.6(b) states that a recipient's obligation to comply with part
106 is not obviated or alleviated by any State or local law or other
requirement, and that nothing in the Department's regulations would
preempt a State or local law that does not conflict with these
regulations and that provides greater protections against sex
discrimination.
Reasons: The Department wants to ensure recipients understand that
their
[[Page 41405]]
obligations to comply with the Department's Title IX regulations are
not dependent or conditioned on other obligations recipients may be
subject to in their respective States or localities. Current Sec.
106.6(b) states that this preemptive effect applies only with respect
to ``any State or local law or other requirement which would render any
applicant or student ineligible, or limit the eligibility of any
applicant or student, on the basis of sex, to practice any occupation
or profession.'' The Department wants to ensure that recipients are
aware that the preemptive effect of these regulations are not just
limited to the circumstances listed in Sec. 106.6(b), nor the
provisions specifically excerpted in Sec. 106.6(h). The proposed
regulations would delete the language limiting the provision to
eligibility to practice any occupation or profession, making clear in a
simple comprehensive statement that the Title IX regulations preempt
any State or local law with which there is a conflict. The proposed
change would also avoid the duplication that may exist under separate
but overlapping provisions.
In addition, proposed Sec. 106.6(b) would clarify that nothing in
the Department's proposed regulations would preempt a State or local
law that provides greater protections to students and does not conflict
with these regulations. This clarification would ensure that the
proposed regulations appropriately cover the full scope of Title IX
while not extending further than the Department's authority to
promulgate regulations to effectuate Title IX.
E. Procedures
Section 106.81 Procedures
Current regulations: Section 106.81 provides that the procedural
provisions applicable to Title VI of the Civil Rights Act of 1964 are
adopted and incorporated into the Title IX regulations. Current Sec.
106.81 states that these procedures may be found at 34 CFR 100.6
through 100.11 and 34 CFR part 101. Finally, current Sec. 106.81
states that the definitions in current Sec. 106.30 do not apply to 34
CFR 100.6 through 100.11 and 34 CFR part 101.
Proposed regulations: The Department proposes removing the final
sentence of current Sec. 106.81, which states that the definitions in
current Sec. 106.30 do not apply to 34 CFR 100.6 through 100.11 and 34
CFR part 101.
Reasons: As explained in greater detail in the discussion of
Definitions in the Provisions of General Applicability (Section I.B),
the Department proposes removing current Sec. 106.30 in its entirety.
Accordingly, the Department also proposes removing the statement that
the definitions in current Sec. 106.30 do not apply to the Title VI
regulations.
II. Recipient's Obligation to Operate Its Education Program or Activity
Free From Sex Discrimination
Statute: Title IX states that ``[n]o person in the United States
shall, on the basis of sex, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial assistance.''
20 U.S.C. 1681(a). The Department has the authority to regulate with
regard to discrimination on the basis of sex in education programs or
activities receiving Federal financial assistance, specifically under
20 U.S.C. 1682 and generally under 20 U.S.C. 1221e-3 and 3474.
A. Sex Discrimination Generally
As discussed in the Background section, the Supreme Court explained
in Cannon that the objectives of Title IX are two-fold: first, to
``avoid the use of federal resources to support discriminatory
practices,'' and second, to ``provide individual citizens effective
protection against those practices.'' 441 U.S. at 704. The Court also
clarified the broad scope of Title IX in North Haven Board of
Education, stating: ``[I]f we are to give Title IX the scope that its
origins dictate, we must accord it a sweep as broad as its language.''
456 U.S. at 521 (citations and internal alterations omitted).
These cases, together with the text of Title IX, make clear that
Title IX's prohibition on sex discrimination imposes a legal duty on
every covered recipient of Federal funds to operate its education
program or activity free from sex discrimination. This legal duty
accordingly requires a recipient to respond promptly and equitably when
sex discrimination may be taking place within its education program or
activity.
B. Sex-Based Harassment
1. OCR's Guidance and Supreme Court Precedent on Title IX's Application
to Sexual Harassment
The Supreme Court and the Department have long interpreted Title IX
to prohibit sexual harassment. In 1981, OCR Director for Litigation,
Enforcement and Policy Service Antonio J. Califa issued a policy
memorandum to all OCR regional directors advising them that ``[s]exual
harassment consists of verbal or physical conduct of a sexual nature,
imposed on the basis of sex, by an employee or agent of a recipient
that denies, limits, provides different, or conditions the provision of
aid, benefits, services or treatment protected under Title IX.'' See
1988 Sexual Harassment Pamphlet at 2 (quoting OCR Policy Memorandum,
Aug. 31, 1981, from Antonio J. Califa, Director for Litigation,
Enforcement and Policy Service, OCR to Regional Civil Rights
Directors), <a href="https://files.eric.ed.gov/fulltext/ED330265.pdf">https://files.eric.ed.gov/fulltext/ED330265.pdf</a>. Then in
1988, OCR issued a pamphlet titled Sexual Harassment: It's Not
Academic, which characterized the 1981 memorandum as having
``reaffirmed'' OCR's jurisdiction: ``In an August 1981 policy
memorandum, the Office for Civil Rights (OCR) of the U.S. Department of
Education reaffirmed its jurisdiction over sexual harassment complaints
under Title IX . . . .'' Id.
The Supreme Court addressed Title IX's coverage of sexual
harassment for the first time in 1992, when it confirmed that a school
district could be held liable for monetary damages in cases involving a
teacher sexually harassing a student. Franklin, 503 U.S. 60. The Court
noted that prior to filing her lawsuit, the plaintiff filed a complaint
with OCR in August 1988 in which OCR concluded that the school district
violated Franklin's Title IX rights by subjecting her to sexual
harassment and by interfering with her right to complain. Id. at 64
n.3. By allowing monetary damages as a remedy, the Court signaled
approval for more robust enforcement of Title IX to cover sexual
harassment. See id. at 76 (``[I]n this case the equitable remedies
suggested by respondent and the Federal Government are clearly
inadequate.'').
Following Franklin and beginning in 1997, OCR issued a series of
documents to provide additional guidance to recipients, students, and
others regarding Title IX's prohibition on sexual harassment. See,
e.g., 1997 Sexual Harassment Guidance; 2001 Revised Sexual Harassment
Guidance; U.S. Dep't of Educ., Office for Civil Rights, Dear Colleague
Letter from Assistant Secretary Stephanie Monroe on Sexual Harassment
(Jan. 25, 2006) (rescinded upon effective date of 2020 amendments, Aug.
14, 2020) <a href="https://www2.ed.gov/about/offices/list/ocr/letters/sexhar-2006.html">https://www2.ed.gov/about/offices/list/ocr/letters/sexhar-2006.html</a>; U.S. Dep't of Educ., Office for Civil Rights, Dear Colleague
Letter: Sexual Violence (Apr. 4, 2011) (rescinded in 2017) (2011 Dear
Colleague Letter on Sexual Violence), <a href="https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf">https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf</a>; 2014 Q&A on Sexual
Violence; U.S. Dep't of Educ., Office for Civil Rights, Q&A on Campus
Sexual Misconduct (Sept. 22, 2017) (rescinded in 2020) (2017 Q&A on
[[Page 41406]]
Campus Sexual Misconduct), <a href="https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf">https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf</a>.
OCR published the 1997 Sexual Harassment Guidance in the Federal
Register for public comment after ``extensive consultation with
interested parties,'' including ``students, teachers, school
administrators, and researchers.'' 1997 Sexual Harassment Guidance, 62
FR 12035. OCR set out the circumstances under which sexual harassment
of students is a form of prohibited discrimination under Title IX,
explaining that sexual harassment occurs when ``a school employee
explicitly or implicitly conditions a student's participation in an
education program or activity or bases an educational decision on the
student's submission to unwelcome sexual [conduct].'' Id. at 12038. OCR
further explained that under Title IX, hostile environment harassment
requires that the sexually harassing conduct be ``sufficiently severe,
persistent or pervasive to limit a student's ability to participate in
or benefit from an education program or activity, or to create a
hostile or abusive educational environment.'' Id. OCR also discussed
what constitutes notice of sexual harassment of students by its
employees, students, or third parties and how a school should respond
upon receiving notice of sexual harassment. Id. at 12039, 12042-43. OCR
rooted this interpretation in Supreme Court precedent and well-
established legal principles under Title IX, as well as the related
nondiscrimination provisions of Titles VI and VII of the Civil Rights
Act of 1964. Id. at 12034.
In 1998, the Supreme Court held in Gebser that a school district
may be liable for monetary damages if a teacher sexually harasses a
student, an official who has the authority to address the harassment
has actual knowledge of the harassment, and that official is
deliberately indifferent in responding to the harassment. 524 U.S. at
277. The following year, the Court held in Davis that a school district
also may be liable for monetary damages if the school has actual
knowledge of student-on-student harassment in its programs or
activities, it responds with deliberate indifference, and the
harassment is sufficiently severe, pervasive, and objectively offensive
that it effectively bars the student's access to an educational
opportunity or benefit. 526 U.S. at 650.
The Court specifically and repeatedly stated that the liability
standards for sexual harassment established in Gebser and Davis were
required in private actions for monetary damages. Gebser, 524 U.S. at
283 (``In this case, moreover, petitioners seek not just to establish a
Title IX violation but to recover damages based on theories of
respondeat superior and constructive notice. It is that aspect of their
action, in our view, that is most critical to resolving the case.''
(emphasis in original)); Davis, 526 U.S. at 639 (affirming that Title
IX's coverage of student-on-student harassment was not in dispute and
instead that ``at issue here is the question whether a recipient of
federal education funding may be liable for damages under Title IX
under any circumstances for discrimination in the form of student-on-
student sexual harassment''); see also Davis, 526 U.S. at 633, 641-44,
649-53; Gebser, 524 U.S. at 287-88.
In particular, in setting the damages liability standards for
recipients, the Court was concerned about the possibility of requiring
a school to pay money damages for harassment of which it was not aware
and in amounts that exceeded the recipient's level of Federal funding.
Gebser, 524 U.S. 289-90. At the same time, the Court acknowledged the
authority of Federal agencies, such as the Department, to ``promulgate
and enforce requirements that effectuate [Title IX's] nondiscrimination
mandate,'' even in circumstances that would not give rise to a claim
for monetary damages. Id. at 292. The Court noted that ``the Department
of Education could enforce the requirement administratively'' that a
school ``promulgate a grievance procedure'' even though the failure to
do so ``does not itself constitute `discrimination' under Title IX.''
Id. Similarly, the Court has explained that the Department may require
schools to sign assurances of compliance under Title IX, even though
the failure to sign such assurances would not itself constitute sex
discrimination by the recipient. See Grove City Coll., 465 U.S. at 574.
Following the Gebser decision, the Department informed school
superintendents and college and university presidents that the Court's
decision did not change a school's obligation to take reasonable steps
to prevent and eliminate sexual harassment as a condition of their
receipt of Federal funding. See U.S. Dep't of Educ., Letter from
Secretary Richard W. Riley to Superintendents of Schools (Aug. 31,
1998), <a href="https://www2.ed.gov/offices/OCR/archives/pdf/AppC.pdf">https://www2.ed.gov/offices/OCR/archives/pdf/AppC.pdf</a>; U.S.
Dep't of Educ., Letter from Secretary Richard W. Riley to College and
University Presidents (Jan. 28, 1999), <a href="https://www2.ed.gov/News/Letters/990128.html">https://www2.ed.gov/News/Letters/990128.html</a>. In 2000, OCR explained in its notice and request
for comments on the proposed Revised Sexual Harassment Guidance that
although ``[i]n most important respects, the substance of the 1997
Guidance was reaffirmed in the Court's opinions in Gebser and Davis,
[the Department] determined that in certain areas the 1997 Guidance
could be strengthened by further clarification and explanation of the
regulatory basis for the guidance.'' U.S. Dep't of Educ., Office for
Civil Rights, Request for Comments, Revised Sexual Harassment Guidance:
Harassment of Students by School Employees, Other Students, or Third
Parties 65 FR 66092 (Nov. 2, 2000) (Request for Comments on the 2001
Revised Sexual Harassment Guidance), <a href="https://www.govinfo.gov/content/pkg/FR-2000-11-02/pdf/00-27910.pdf">https://www.govinfo.gov/content/pkg/FR-2000-11-02/pdf/00-27910.pdf</a>. See also U.S. Dep't of Educ.,
Office for Civil Rights, Notice of Availability, Revised Sexual
Harassment Guidance, 66 FR 5512 (Jan. 19, 2001), <a href="https://www.govinfo.gov/content/pkg/FR-2001-01-19/pdf/01-1606.pdf">https://www.govinfo.gov/content/pkg/FR-2001-01-19/pdf/01-1606.pdf</a>.
The 2001 Revised Sexual Harassment Guidance did not change the
standards that OCR used to determine when prohibited sexual harassment
has occurred. Request for Comments on the 2001 Revised Sexual
Harassment Guidance, 65 FR 66093. Rather, OCR clarified that ``these
standards apply to our ability to find a violation and seek corrective
action in administrative enforcement of Title IX.'' Id. OCR explained
that ``the focus of the guidance is on a school's administrative
responsibilities under the nondiscrimination requirements of the Title
IX statute and regulations'' to take effective action to prevent,
eliminate, and remedy sexual harassment occurring in its programs or
activities, rather than its liability for money damages in private
lawsuits. Id. When the revised guidance was issued, it noted that
``commenters uniformly agreed with OCR that the Court limited the
liability standards established in Gebser and Davis to private actions
for monetary damages'' and ``that the administrative enforcement
standards reflected in the 1997 Guidance remain valid in OCR
enforcement actions.'' 2001 Revised Sexual Harassment Guidance at iv,
vi (``[B]oth Davis and the Department tell schools to look at the
`constellation of the surrounding circumstances, expectations, and
relationships' (526 U.S. at 651 (citing Oncale v. Sundowner Offshore
Services, Inc., 523 U.S. 75, 82 (1998)), and the Davis Court cited
approvingly to the underlying core factors described in the 1997
Guidance for evaluating the context of the harassment.''). Finally,
[[Page 41407]]
OCR explained that ``[w]hile Gebser and Davis made clear that Title VII
agency principles do not apply in determining liability for money
damages under Title IX, the Davis court also indicated, through its
specific references to Title VII caselaw, that Title VII remains
relevant in determining what constitutes hostile environment sexual
harassment under Title IX.'' Id. at vi.
As noted above, OCR issued subsequent guidance documents on
harassment on the basis of sex, including sexual harassment, that built
on the concepts from the 1997 Sexual Harassment Guidance and the 2001
Revised Sexual Harassment Guidance. See U.S. Dep't of Educ., Office for
Civil Rights, Dear Colleague Letter: Harassment and Bullying (Oct. 26,
2010) (2010 Dear Colleague Letter on Harassment and Bullying), <a href="https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf">https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf</a>; 2011
Dear Colleague Letter on Sexual Violence; 2014 Q&A on Sexual Violence;
2017 Q&A on Campus Sexual Misconduct. OCR issued these guidance
documents to assist recipients in meeting their obligations and to
provide the public with information about their rights under the Title
IX statute and regulations. These guidance documents provided
information and examples to inform recipients about how OCR evaluates
compliance with Title IX.
2. The 2020 Amendments' Framework for Addressing Sexual Harassment
Under Title IX
On November 29, 2018, the Department published a notice of proposed
rulemaking to clarify and modify the Title IX regulations. 2018 NPRM.
In response to the 2018 NPRM, the Department received more than 124,000
comments expressing a wide variety of views on the proposed
regulations. On May 19, 2020, the Department published the 2020
amendments to the Title IX regulations, which went into effect on
August 14, 2020. 85 FR 30026.
In the preamble to the 2020 amendments, the Department explained
that ``[n]either Gebser nor Davis opined as to what the appropriate
conditions (e.g., definition of sexual harassment, actual knowledge)
and liability standard (e.g., deliberate indifference) must or should
be for the Department's administrative enforcement.'' Id. at 30033. The
Department recognized its flexibility to depart from the standards and
conditions articulated in Gebser and Davis, explaining that the
``Department has regulatory authority to select conditions and a
liability standard different from those used in the Gebser/Davis
framework, because the Department has authority to issue rules that
require recipients to take administrative actions to effectuate Title
IX's non-discrimination mandate.'' Id.
Notwithstanding this recognition of its distinct administrative
authority to enforce Title IX, in the 2020 amendments the Department
chose to use the Gebser/Davis framework as the starting point for
describing a recipient's legal obligation to address sexual harassment
under Title IX, departing in many respects from OCR's prior
longstanding guidance that had been developed to ensure a recipient's
implementation of Title IX's protections. The Department also stated
that it was using Title IX's ``statutory authority to issue rules to
effectuate the purpose of Title IX,'' to ``reasonably expand[ ]''
aspects of that ``framework to further the purposes of Title IX in the
context of administrative enforcement, holding schools responsible for
taking more actions than what the Gebser/Davis framework requires.''
Id. at 30033, 30035.
After extensive review, the Department's current view is that the
2020 amendments do not adequately promote full implementation of Title
IX's prohibition on sex discrimination, including sex-based harassment,
by a recipient in its education program or activity. For example, the
2020 amendments do not require a postsecondary institution to
investigate sexual harassment in its education program or activity,
even if its leadership has persuasive evidence that harassment is
taking place, unless the person who experienced the harassment (i.e.,
the complainant) reported the harassment in writing to a specifically
designated employee. As a result, a complainant who does not report the
harassment to the correct individual may be denied access to an
educational environment free from sex discrimination, and the recipient
may be discriminating based on sex in operating its program or
activity. Also, stakeholders reported that certain requirements of the
2020 amendments have resulted in decreased reporting of sexual
harassment and may have impeded recipients from responding promptly and
equitably to allegations of sexual harassment in its educational
environment. The Department's current view is that it is necessary to
amend its Title IX regulations to clarify a recipient's obligation to
take prompt and effective action to end all sex-based harassment, to
help ensure that Title IX's protections are fully enforced, and to
avoid recipients' use of Federal funds to support discriminatory
practices.
C. Revised Definitions
Section 106.2 Definition of ``Complainant''
Current regulations: Section 106.30 defines ``complainant'' as ``an
individual who is alleged to be the victim of conduct that could
constitute sexual harassment.''
Proposed regulations: The Department proposes moving the definition
of ``complainant'' to Sec. 106.2, referring to ``sex discrimination''
rather than ``sexual harassment,'' and removing the term ``victim.''
The Department also proposes adding language stating that a third-party
complainant (i.e., a person other than a student or employee) must be
participating or attempting to participate in the recipient's education
program or activity when the alleged sex discrimination occurred.
Reasons: The Department proposes that ``complainant'' encompass
anyone who is alleged to have been subjected to conduct that could
constitute sex discrimination under Title IX. The Department also
proposes removing the current definition's reference to the complainant
as a ``victim'' as the term could be perceived as stigmatizing or
pejorative.
The Department recognizes in proposed Sec. 106.6(g) that a parent,
guardian, or other authorized legal representative may have a legal
right to act on behalf of a complainant, including by making a
complaint of sex discrimination. This approach is consistent with
current Sec. 106.6(g), which states that the Title IX regulations must
not be ``read in derogation of any legal right of a parent or
guardian'' to act on behalf of a complainant, including by filing a
formal complaint. The Department stated in the preamble to the 2020
amendments that ``when a party is a minor or has a guardian appointed,
the party's parent or guardian may have the legal right to act on
behalf of the party,'' although the minor or person with an appointed
guardian would be the party (i.e., the complainant). 85 FR 30453. As
explained in the preamble to the 2020 amendments, ``the parent or
guardian must be permitted to exercise the rights granted to the party
. . . whether such rights involve requesting supportive measures or
participating in a grievance process.'' Id. The Department further
explained in the preamble to the 2020 amendments that ``the parent or
guardian must be permitted to accompany the student to meetings,
interviews, and hearings during a grievance process to exercise rights
on behalf of the student, while the
[[Page 41408]]
student's advisor of choice may be a different person from the parent
or guardian.'' Id. As explained in the discussion of proposed Sec.
106.6(g), the Department has received feedback that a reference to
parents and guardians is underinclusive because it does not recognize
the rights of individuals who are legally authorized to act on behalf
of children in out-of-home care. As a result, the Department proposes
adding the phrase ``other authorized legal representative'' in proposed
Sec. 106.6(g). Under proposed Sec. 106.6(g), a parent, guardian, or
other authorized legal representative may have a legal right to act on
a student's behalf, including by making a complaint on behalf of a
complainant; however, the student would remain the complainant.
The current regulations restrict the persons who can make a
complaint under the recipient's grievance procedures for complaints of
sex discrimination other than sexual harassment to students and
employees. 34 CFR 106.8(c). The current regulations permit any
complainant, including a student, employee, or third party who was
participating or attempting to participate in the recipient's education
program or activity at the time of filing, to file a formal complaint
alleging sexual harassment. 34 CFR 106.30(a) (definition of
``complainant'' and ``formal complaint''). After considering the issue,
the Department's current view is that a third party who was
participating or attempting to participate in the recipient's education
program or activity when the alleged sex discrimination occurred should
be permitted to make a complaint of sex discrimination, including sex-
based harassment, under the recipient's grievance procedures as
addressed in proposed Sec. 106.45(a)(2). This would be unlike the
current regulations, which consider the complainant's participation in
the education program or activity at the time of filing the formal
complaint. In addition, although the current regulations' limits on who
can file a formal complaint address only complaints of sexual
harassment, the proposed regulations would address all complaints of
sex discrimination, including sex-based harassment. This proposal is
consistent with the decision by the U.S. Court of Appeals for the First
Circuit in Doe v. Brown University, 896 F.3d 127, 132-33 (1st Cir.
2018), which found that the scope of Title IX's ``subject to
discrimination under'' language is ``circumscribed to persons who
experience discriminatory treatment while participating, or at least
attempting to participate, in education programs or activities''
provided by the recipient. Id. (upholding district court's dismissal of
Title IX claim by third party who was sexually assaulted on recipient's
campus but was not participating or attempting to participate in the
recipient's education program or activity). Examples of possible third-
party complainants include a prospective student, a visiting student-
athlete, or a guest speaker who is participating or attempting to
participate in the recipient's education program or activity. This
third-party participation requirement would not apply to a student,
employee, or those persons authorized to act on behalf of a
complainant, respondent, or other person under proposed Sec. 106.6(g).
Section 106.2 Definition of ``Complaint''
Current regulations: The current regulations do not define
``complaint.'' However, current Sec. 106.30 defines ``formal
complaint'' as a document or electronic submission that contains the
complainant's signature or otherwise indicates that the complainant is
the person filing the formal complaint; alleges sexual harassment
against a respondent; and requests that the recipient investigate the
allegation of sexual harassment under its grievance process for formal
complaints of sexual harassment in Sec. 106.45. A formal complaint is
filed by a complainant with the Title IX Coordinator or signed by the
Title IX Coordinator. The current regulations provide several methods
for filing the formal complaint, including in person, by mail, or by
email. The current regulations specify that when the Title IX
Coordinator signs a formal complaint, the Title IX Coordinator is not a
complainant or otherwise a party under part 106 or under Sec. 106.45,
and must comply with the requirements of part 106, including Sec.
106.45(b)(1)(iii).
Current Sec. 106.8(c) requires that a recipient provide
notification of its grievance procedures, including how to report or
file a complaint of sex discrimination, to the following: applicants
for admission and employment; students; parents or legal guardians of
elementary and secondary school students; employees; and all unions and
professional organizations holding collective bargaining or
professional agreements with the recipient.
Proposed regulations: The Department proposes defining
``complaint'' to cover complaints of any type of sex discrimination and
not limiting ``complaint'' to a written request. Specifically, the
Department proposes removing the definition of ``formal complaint,''
which is limited to a document requesting that the recipient initiate
its grievance process under current Sec. 106.45, and replacing it with
a definition of ``complaint'' that is an oral or written request to the
recipient to initiate the recipient's grievance procedures for sex
discrimination under Sec. 106.45, and if applicable Sec. 106.46. The
Department proposes moving the definition of ``complaint'' to Sec.
106.2 because its applicability is not limited to sex-based harassment.
The proposed definition would clarify that a complaint may be oral
or written. The proposed regulations would remove the requirement that
the formal complaint contain the complainant's physical or digital
signature, or otherwise indicate that the complainant is the person
filing the formal complaint.
The proposed definition of ``complaint'' would not specify who can
make a complaint, but this information would be specified in proposed
Sec. 106.45(a)(2). As explained in the discussion of proposed Sec.
106.45(a)(2), the Department proposes placing limitations on who may
make a complaint of sex-based harassment that obligates a recipient to
initiate its grievance procedures due to the nature of those
allegations. However, the Department does not propose placing any
limitations on who can provide information to the Title IX Coordinator
about conduct that may constitute sex discrimination under Title IX,
including sex-based harassment. When a Title IX Coordinator is notified
about conduct that may constitute sex discrimination under Title IX,
including sex-based harassment, they would be required to act under
proposed Sec. 106.44.
Reasons: The Department proposes defining ``complaint'' to provide
clarity for how an individual can request that a recipient initiate its
grievance procedures under proposed Sec. 106.45, and if applicable
proposed Sec. 106.46, for all types of sex discrimination prohibited
by Title IX.
The current regulations do not provide information about how an
individual could request that a recipient initiate its grievance
procedures in response to sex discrimination other than sexual
harassment. First, the current definition of ``formal complaint''
applies only to sexual harassment. Second, although current Sec.
106.8(c) requires a recipient to notify individuals of how to make a
complaint, the Department did not define the term ``complaint'' or
specify that a complaint is a request to the recipient to initiate its
grievance procedures. The current regulations have different
requirements
[[Page 41409]]
for complaints of sexual harassment and complaints of other forms of
sex discrimination under Title IX and require a formal written document
to request that the recipient initiate its grievance procedures in
response only to sexual harassment. Specifically, current Sec. 106.30
requires a formal written document to request that the recipient
initiate its grievance procedures under Sec. 106.45 with respect to
allegations of sexual harassment but does not require a formal written
document to request that the recipient initiate its grievance
procedures under Sec. 106.8(c) with respect to allegations of other
forms of sex discrimination. In the preamble to the 2020 amendments,
the Department explained that a formal written document was important
to avoid confusion in initiating a recipient's grievance procedures
under Sec. 106.45. See 85 FR 30130.
OCR received feedback from stakeholders during the June 2021 Title
IX Public Hearing, listening sessions, and the meetings held in 2022
under Executive Order 12866 that expressed concerns that the 2020
amendments created an onerous and cumbersome process for a complainant
seeking to request that the recipient initiate its grievance procedures
and requesting that the Department streamline the complaint process.
Although the current regulations permit a complainant to file a formal
complaint by email and using a digital signature, see 85 FR 30133,
several stakeholders stated that the signature and writing requirements
generally discouraged individuals from making complaints.
Based on the feedback received from stakeholders and the current
distinction between a complaint of sex discrimination and a formal
complaint of sexual harassment, the Department is concerned that the
current regulations may have created a barrier for potential
complainants to effectively assert their rights under Title IX. It is
the Department's current view that additional clarity is needed to
ensure that recipients are aware of and can respond appropriately to
sex discrimination in their education programs or activities.
The Department proposes creating a single process to receive these
requests by replacing the definition of ``formal complaint'' with a
definition of ``complaint'' to clarify that a complaint would be the
mechanism by which an individual may request that a recipient initiate
its grievance procedures in response to all forms of sex
discrimination. The Department's proposed regulations would define
``complaint'' more broadly to include either an oral or a written
request to the recipient to initiate the recipient's grievance
procedures for complaints of sex discrimination under Title IX, as
described in proposed Sec. 106.45, and if applicable proposed Sec.
106.46. This revised definition of ``complaint'' would recognize that a
person may seek to make a complaint in a variety of ways and would
allow both oral and written complaints, while also no longer requiring
a signature.
The proposed regulations would also differ from the current
regulations in that they would not require a complaint to be made to
the Title IX Coordinator, or to any specific employee of the recipient;
a complaint need only be made to the recipient. As explained in greater
detail in the discussion of proposed Sec. 106.44(c), the proposed
regulations would require a recipient to ensure that its Title IX
Coordinator is notified of information about conduct that may
constitute sex discrimination under Title IX in the recipient's
education program or activity when that information is provided to
certain categories of employees. The proposed regulations would also
require other categories of employees to, at a minimum, provide the
Title IX Coordinator's contact information and information about how to
report sex discrimination to any person who provides the employee with
information about conduct that may constitute sex discrimination under
Title IX. As explained in greater detail in the discussion of proposed
Sec. 106.44(f), the proposed regulations would also require a
recipient's Title IX Coordinator to take certain steps upon being
notified of conduct that may constitute sex discrimination under Title
IX. In addition, as explained in greater detail in the discussion of
proposed Sec. 106.44(k), a complaint would no longer be required
before a recipient could offer to a complainant and respondent its
informal resolution process under proposed Sec. 106.44(k); instead,
the informal resolution process could be offered and, if accepted,
initiated by the recipient when it receives information about conduct
that may constitute sex discrimination under Title IX even when no
complaint is made.
Third-party complaints. The current regulations require a
complainant to be participating or attempting to participate in the
recipient's education program or activity at the time of filing a
formal complaint of sexual harassment. 34 CFR 106.30(a) (definition of
``formal complaint''). In adding that requirement to the 2020
amendments, the Department explained that ``there is no requirement
that [a] complainant must be a student, employee, or [have some] other
designated relationship with the recipient in order to be treated as a
`complainant' entitled to a prompt, non-deliberately indifferent
response from the recipient,'' but that the participation limitation on
when a complainant can file a formal complaint of sexual harassment
``prevents recipients from being legally obligated to investigate
allegations made by complainants who have no relationship with the
recipient.'' 85 FR 30138, 30198. The Department also provided examples
of situations in which a complainant would be attempting to participate
in a recipient's education program or activity. See id. at 30138, 30198
n.869, 30219. The current regulations do not address third-party
complainants or include a participation requirement with respect to
complaints of sex discrimination other than sexual harassment; instead,
the current regulations state that grievance procedures that address
other forms of sex discrimination apply to student and employee
complaints. 34 CFR 106.8(c).
OCR heard from several stakeholders during the June 2021 Title IX
Public Hearing, listening sessions, and the meetings held in 2022 under
Executive Order 12866 who requested either reconsideration of the scope
of who is deemed to be attempting to participate in the recipient's
education program or activity or eliminating the requirement that a
complainant must be participating or attempting to participate in the
recipient's education program or activity. The Department also
considered that such a requirement may be redundant as applied to
employee and student complainants who are, based on their enrollment or
employment, either participating or attempting to participate in the
recipient's education program or activity. After considering an array
of stakeholder views and reevaluating the issue, the Department
proposes eliminating this requirement for making a complaint of sex
discrimination, including sex-based harassment, with respect to a
student or employee complainant.
In proposed Sec. 106.45(a)(2), the Department would specify who
can make a complaint requesting that the recipient initiate its
grievance procedures. Under proposed Sec. 106.45(a)(2)(iv), a third
party must be participating in or attempting to participate in the
recipient's education program or activity in order to make a complaint
requesting that the recipient initiate grievance procedures. The
[[Page 41410]]
Department's proposed regulations seek to ensure that anyone who is
participating or attempting to participate in a recipient's program or
activity is able to make a complaint of sex discrimination while being
cognizant of the possible increased burden for a recipient based on
complaints made by third parties who are not participating or
attempting to participate in the recipient's education program or
activity. The Department's proposed regulations would also shift the
focus from whether the third party was participating or attempting to
participate in the recipient's education program or activity at the
time the complaint was filed to whether the third party was
participating or attempting to participate in the recipient's education
program or activity when the alleged sex discrimination occurred. For
example, under the proposed regulations, the visiting student-athlete
who was sexually harassed by a student of the recipient during an
intercollegiate swim meet would be considered to be participating in
the recipient's education program or activity at the time of the
alleged sex-based harassment. In contrast, and also under the proposed
regulations, if the same visiting student-athlete was sexually harassed
by one of the recipient's students at an off-campus bar days after the
swim meet concluded, the visiting student-athlete would not be
considered to be participating or attempting to participate in the
recipient's education program or activity at the time that the alleged
sex-based harassment occurred. The Department's tentative view is that
the proposed regulations would be more aligned with the purpose of
Title IX to ensure that a recipient operates its education program or
activity free from sex discrimination.
Section 106.2 Definition of Prohibited ``Sex-Based Harassment''
Current regulations: Section 106.30(a) defines ``sexual
harassment'' as conduct on the basis of sex that satisfies one or more
of the following: (1) an employee of the recipient conditioning the
provision of an aid, benefit, or service of the recipient on an
individual's participation in unwelcome sexual conduct; (2) unwelcome
conduct determined by a reasonable person to be so severe, pervasive,
and objectively offensive that it effectively denies a person equal
access to the recipient's education program or activity; or (3)
``sexual assault'' as defined in 20 U.S.C. 1092(f)(6)(A)(v), ``dating
violence'' as defined in 34 U.S.C. 12291(a)(10), ``domestic violence''
as defined in 34 U.S.C. 12291(a)(8), or ``stalking'' as defined in 34
U.S.C. 12291(a)(30).
Proposed regulations: The Department proposes moving the definition
from Sec. 106.30(a) to Sec. 106.2 and clarifying that the definition
covers all forms of sex-based harassment, as opposed to only sexual
harassment. The proposed new definition of ``sex-based harassment''
would clarify that it covers sexual harassment, harassment on the bases
described in proposed Sec. 106.10, and other conduct on the basis of
sex that is in one or more of the following categories: (1) an
employee, agent, or other person authorized by the recipient to provide
an aid, benefit, or service under the recipient's education program or
activity explicitly or implicitly conditioning the provision of such an
aid, benefit, or service on a person's participation in unwelcome
sexual conduct; (2) unwelcome sex-based conduct that is sufficiently
severe or pervasive, that, based on the totality of the circumstances
and evaluated subjectively and objectively, denies or limits a person's
ability to participate in or benefit from the recipient's education
program or activity (i.e., creates a hostile environment); or (3)(i)
``sexual assault'' meaning an offense classified as a forcible or
nonforcible sex offense under the uniform crime reporting system of the
Federal Bureau of Investigation; (ii) ``dating violence'' meaning
violence committed by a person who is or has been in a social
relationship of a romantic or intimate nature with the victim; (iii)
``domestic violence'' meaning felony or misdemeanor crimes of violence
committed by a person who (A) is a current or former spouse or intimate
partner of the victim under the family or domestic violence laws of the
jurisdiction of the recipient, or a person similarly situated to a
spouse of the victim; (B) is cohabitating, or has cohabitated, with the
victim as a spouse or intimate partner; (C) shares a child in common
with the victim; or (D) commits acts against a youth or adult victim
who is protected from those acts under the family or domestic violence
laws of the jurisdiction; or (iv) ``stalking'' meaning engaging in a
course of conduct directed at a specific person that would cause a
reasonable person to (A) fear for the person's safety or the safety of
others; or (B) suffer substantial emotional distress. The proposed
definition also clarifies that conduct meeting the definition of ``sex-
based harassment'' in proposed Sec. 106.2 constitutes sex-based
harassment that is prohibited under Title IX. With this clarification,
the Department recognizes that there may be other types of conduct that
could constitute sex-based harassment under other laws or a recipient's
policies but are not prohibited under Title IX.
The proposed definition would clarify that the scope of sex-based
harassment includes bases that were not expressly covered under the
term ``sexual harassment'' in current Sec. 106.30(a), including
harassment based on sex stereotypes, sex characteristics, pregnancy or
related conditions, sexual orientation, and gender identity.
The proposed definition would also include revisions to the scope
of conduct described in its second category, which addresses unwelcome
conduct on the basis of sex. These proposed revisions would provide
factors to consider when determining whether unwelcome sex-based
conduct creates a hostile environment in a recipient's education
program or activity.
The third category of the proposed definition would still
incorporate the definition of ``sexual assault'' from the Clery Act.
The proposed definition would incorporate the definitions of ``dating
violence,'' ``domestic violence,'' and ``stalking'' from the Violence
Against Women Reauthorization Act of 2022 (VAWA 2022). Instead of
including cross-references to statutory provisions in the Clery Act and
VAWA 2022, the proposed definition would include language from the
statutory definitions themselves to make it clear in the text of the
regulations how these terms are defined for purposes of Title IX. The
Department proposes incorporating the portion of the definition of
``domestic violence'' that is relevant to Title IX.
Reasons: Sex-Based Harassment. The Department's proposed
regulations refer to ``sex-based harassment'' rather than ``sexual
harassment.'' This revision is consistent with the Department's
statement that it interpreted Title IX to prohibit gender-based
harassment in response to comments received on the 2018 NPRM.
Specifically, the Department explained that its position in the 2020
amendments remained similar to its position in the 2001 Revised Sexual
Harassment Guidance that `` `[a]lthough Title IX does not prohibit
discrimination on the basis of sexual orientation, sexual harassment
directed at gay or lesbian students that is sufficiently serious to
limit or deny a student's ability to participate in or benefit from the
school's program constitutes sexual harassment prohibited by Title IX
under the circumstances described in this guidance.' '' 85 FR 30178-79
(quoting 2001 Revised Sexual Harassment
[[Page 41411]]
Guidance at 3). The Department also stated that ``gender-based
harassment, which may include acts of verbal, nonverbal, or physical
aggression, intimidation, or hostility based on sex or sex-
stereotyping, but not involving conduct of a sexual nature, is also a
form of sex discrimination to which a school must respond.'' Id. at
30179 (quoting 2001 Revised Sexual Harassment Guidance at 3). To
address the concern that the 2020 amendments were underinclusive in
scope because they were limited to sexual harassment, the Department
stated that ``[t]hese final regulations include sexual harassment as
unwelcome conduct on the basis of sex that a reasonable person would
determine is so severe, pervasive, and objectively offensive that it
denies a person equal educational access; this includes but is not
limited to unwelcome conduct of a sexual nature, and may consist of
unwelcome conduct based on sex or sex stereotyping.'' Id.
During the June 2021 Title IX Public Hearing and in listening
sessions with stakeholders, OCR received requests to clarify that the
Title IX regulations apply to both sexual harassment and other forms of
harassment based on sex, including harassment based on sexual
orientation and gender identity. These requests indicated to the
Department that the current definition of ``sexual harassment'' does
not provide adequate clarity as to the scope of harassment covered.
Specifically, stakeholders expressed confusion regarding the scope of
sexual harassment, including noting that they were receiving questions
from their students regarding whether certain forms of harassing
conduct are covered under the current definition of ``sexual
harassment.'' Stakeholders also expressed concern that the definition
of ``sexual harassment'' fails to protect many individuals who
experience other forms of sex-based harassment due to the limited
coverage of the definition.
After reevaluating the issue, the Department proposes revising the
regulatory text to make clear that sexual harassment, as well as other
forms of sex-based harassment on the bases described in proposed Sec.
106.10, are covered under the Department's Title IX regulations to
dispel any confusion regarding the scope of sex-based harassment that
is prohibited under Title IX and therefore requires a recipient to
respond. The proposed clarifications would more clearly implement the
statements made by the Department in the preamble to the 2020
amendments that Title IX's broad nondiscrimination mandate covers all
forms of harassment based on sex, including sexual harassment, which
has also been OCR's longstanding view. See, e.g., 2001 Revised Sexual
Harassment Guidance at v, 3 (explaining that gender-based harassment,
including harassment based on sex stereotyping, is covered under Title
IX); 2010 Dear Colleague Letter on Harassment and Bullying at 7-8
(stating that Title IX prohibits gender-based harassment and explaining
that ``it can be sex discrimination if students are harassed either for
exhibiting what is perceived as a stereotypical characteristic for
their sex, or for failing to conform to stereotypical notions of
masculinity and femininity''); U.S. Dep't of Educ., Office for Civil
Rights, Supporting the Academic Success of Pregnant and Parenting
Students Under Title IX of the Education Amendments of 1972 at 8 (June
2013) (2013 Pregnancy Pamphlet), <a href="https://www2.ed.gov/about/offices/list/ocr/docs/pregnancy.pdf">https://www2.ed.gov/about/offices/list/ocr/docs/pregnancy.pdf</a> (``Title IX prohibits harassment of
students based on sex, including harassment because of pregnancy or
related conditions.''); see also 85 FR 30179. The Department also notes
that consistent with the Department's position in the 2020 amendments,
the proposed definition of ``sex-based harassment'' prohibited under
Title IX would apply regardless of the sex of the harasser, i.e.,
including if the harasser and the person being harassed are members of
the same sex and that sex-based harassment ``is not limited to being
bi-directional (male-to-female and female-to-male)'' and ``any person
may experience [sex-based] harassment as a form of sex discrimination,
irrespective of the identity of the complainant or respondent.'' See 85
FR 30179. Further explanation of the scope of Title IX's prohibition on
sex discrimination and the bases of sex-based harassment covered by
this proposed definition is in the discussion of proposed Sec. 106.10.
The Department proposes adding language to the proposed definition
of ``sex-based harassment'' clarifying that conduct that meets the
definition of ``sex-based harassment'' is prohibited under Title IX and
therefore a recipient must take action to address it in accordance with
proposed Sec. 106.44. This clarification would also serve to
distinguish sex-based harassment that is prohibited under Title IX from
conduct that may be sex-based harassment under other laws or
recipients' policies but does not meet the Title IX regulatory
definition of ``sex-based harassment.'' A recipient may determine that
it is obligated to address sex-based harassment that does not meet the
definition of ``sex-based harassment'' prohibited under Title IX;
however, nothing in the proposed regulations would require it to do so.
This is consistent with the Department's position in the current
regulations that even when conduct does not meet the definition of
sexual harassment under current 106.30(a), nothing precludes a
recipient from addressing the conduct under the recipient's code of
conduct or other non-Title IX process. See, e.g., id. at 30090, 30199,
30206. Thus, under the proposed regulations, a recipient would be able
use its Title VII process to meet its obligations under Title VII to
address alleged conduct by an employee that does not meet the proposed
definition of ``sex-based harassment'' under Title IX because, for
example, that conduct did not create a hostile environment. In these
instances, a recipient may still have a duty under Title VII to address
the alleged conduct before it becomes actionable. See Erickson v. Wis.
Dep't of Corr., 469 F.3d 600, 605-06 (7th Cir. 2006) (stating that
Title VII's ```primary objective' . . . is `not to provide redress but
to avoid harm''' and that ``[e]mployers need to take `all steps
necessary to prevent sexual harassment from occurring,'' including
``taking reasonable steps to prevent harassment once informed of a
reasonable probability that it will occur'') (quoting Faragher v. City
of Boca Raton, 524 U.S. 775, 805-06 (1998)); see also Vance v. Ball
State Univ., 570 U.S. 421, 448-49 (2013) (stating that the employer is
liable for harassment if it failed to act reasonably to prevent the
harassment). This Title VII obligation is separate from any obligation
a recipient has under Title IX to address alleged conduct that meets
the proposed definition of ``sex-based harassment'' under Title IX. If
the alleged conduct also meets the proposed definition of ``sex-based
harassment'' under Title IX, the recipient must use a process that
satisfies the requirements set out in proposed Sec. 106.45 and, if
applicable proposed Sec. 106.46.
Unwelcome Conduct. The Department proposes retaining the
requirement that the conduct in categories one and two of the
definition of ``sex-based harassment'' must be unwelcome. Although the
Department does not propose revising this requirement, the Department
understands it is important to provide recipients with additional
clarity on how to analyze whether conduct is unwelcome under the
proposed regulations. Conduct would be unwelcome if a person did not
request or invite it and regarded the conduct as undesirable or
offensive. Acquiescence to the conduct or the failure to complain,
resist, or object when the conduct was taking place would not
[[Page 41412]]
mean that the conduct was welcome, and the fact that a person may have
accepted the conduct does not mean that they welcomed it. For example,
a student may decide not to resist the sexual advances of another
student out of fear, or a student may not object to a pattern of
sexually harassing comments directed at the student by a group of
fellow students out of concern that objections might cause the
harassers to make more comments. On the other hand, if a student
actively participates in sexual banter and discussions and gives no
indication that they object, then that would generally support a
conclusion that the conduct was not unwelcome, depending on the facts
and circumstances. In addition, simply because a person willingly
participated in the conduct on one occasion does not prevent that same
conduct from being unwelcome on a subsequent occasion. Specific issues
related to welcomeness may also arise if the person who engages in
harassment is in a position of authority. For example, because a
teacher has authority over the operation of their classroom, a student
may decide not to object to a teacher's sexually harassing comments
during class; however, this does not mean that the conduct was welcome
because, for example, the student may believe that any objections would
be ineffective in stopping the harassment or may fear that by making
objections they will be singled out for harassing comments or
retaliation.
Category One: Quid Pro Quo.
The Department proposes generally maintaining the language in the
first category of the definition of ``sexual harassment'' in the
current regulations with revisions to state that in addition to an
employee, an agent or other person authorized by the recipient to
provide an aid, benefit, or service under the recipient's education
program or activity is also prohibited from engaging in the quid pro
quo conduct described in the first category and that quid pro quo
harassment may be explicit or implicit.
In response to requests to broaden the scope of quid pro quo
harassment to include persons not directly employed by the recipient,
the Department explained in the preamble to the 2020 amendments that
``the quid pro quo harassment description is appropriately and
sufficiently broad because it applies to all of a recipient's
employees, so that it includes situations where, for instance, a
teacher, faculty member, or coach holds authority and control over a
student's success or failure in a class or extracurricular activity,''
and ``decline[d] to expand the description to include non-employee
students, volunteers, or others not deemed to be a recipient's
employee.'' 85 FR 30148. The Department further stated that it was
``persuaded by the Supreme Court's rationale in Gebser that Title IX
and Title VII differ with respect to statutory reliance on agency
principles'' and referenced the language in Gebser, noting that Title
VII ``explicitly defines `employer' to include `any agent,''' id. at
30148, but ``Title IX contains no comparable reference to an
educational institution's agents, and so does not expressly call for
application of agency principles'' id. at 30148 n.646 (quoting Gebser,
524 U.S. at 283). During the June 2021 Title IX Public Hearing and in
listening sessions with stakeholders, OCR received similar requests to
prohibit quid pro quo harassment by any person, not just employees. The
Department reviewed these requests and now proposes to revise the scope
of quid pro quo sex-based harassment to include an agent or other
person authorized by the recipient to provide an aid, benefit, or
service under the recipient's education program or activity. The
Department proposes this change to effectuate Title IX, consistent with
the statutory language prohibiting a person from being excluded from
participation in or denied the benefits of any education program or
activity on the basis of sex. This proposed change is also consistent
with the Department's Title IX regulations regarding the provision of
aid, benefit, or services, which have made clear since 1975 that a
recipient is responsible for the nondiscriminatory provision of any
aid, benefit, or service to a student and have not been limited to the
provision of such aid, benefit, or services only by a recipient's
employees. 34 CFR 106.31(b).
The Department is mindful of the Supreme Court's decision in
Gebser, which the Department previously relied upon in declining to
expand the description of quid pro quo harassment in response to
comments received on the 2018 NPRM. Although the Court in Gebser
rejected Title VII's agency principles for the purpose of determining a
school's liability for monetary damages under Title IX, after
revisiting this issue, the Department proposes that this is not the
appropriate analysis for assessing the Department's responsibility for
the administrative enforcement of Title IX. Gebser, 524 U.S. at 283. As
explained in greater detail in the discussion of OCR's Guidance and
Supreme Court Precedent on Title IX's Application to Sexual Harassment
(Section II.B.1), the Court repeatedly and explicitly stated in Gebser
and Davis that the liability standard it established was limited to
private actions for monetary damages, not administrative enforcement
action. See, e.g., Gebser, 524 U.S. at 283, 287; see also Davis, 526
U.S. at 633, 639-44, 649-53. It was within this framework that the
Court rejected Title VII's agency principles for purposes of
determining a school's liability for monetary damages under Title IX.
In contrast, the Department's proposal to include agents or other
persons authorized by the recipient to provide an aid, benefit, or
service under the recipient's education program or activity in the
scope of quid pro quo sex-based harassment is not based on Title VII
agency principles and is consistent with Title IX sexual harassment
case law holding that ``someone in authority'' may commit quid pro quo
sexual harassment. See, e.g., Papelino v. Albany Coll. of Pharmacy
Union Univ., 633 F.3d 81, 89 (2d Cir. 2011); Willis v. Brown Univ., 184
F.3d 20, 25 (1st Cir. 1999).
Because determining whether a person has been authorized to provide
aid, benefits, or services as part of a recipient's education program
or activity is fact-specific, the Department declines at this time to
provide a definitive list of individuals who would qualify but provides
examples below to assist a recipient in making this determination for
purposes of quid pro quo harassment. For example, some recipients may
rely on unpaid volunteers to coach interscholastic athletic teams or
club sports teams offered by the recipient. Even though these
volunteers are not employed directly by the recipient, unpaid volunteer
coaches hold authority and control over a student's participation or
performance in an extracurricular activity offered by the recipient. As
such, they would qualify as persons who are subject to the prohibition
on quid pro quo harassment because they may properly be considered
persons authorized by the recipient to provide aid, benefits, or
services under the recipient's education program or activity.
Similarly, graduate students who teach their own course or serve as a
teaching assistant and are responsible for providing instruction and
assigning grades in a course (i.e., an aid, benefit, or services to
students as part of a recipient's education program or activity) but
who are not employed directly by a recipient would also be subject to
the prohibition on quid pro quo harassment. In addition, if a recipient
contracts with persons or
[[Page 41413]]
organizations to provide benefits, services, or opportunities to
students under the recipient's education program or activity, those
individuals could commit quid pro quo harassment. Other examples of
persons who may be authorized by a recipient to provide aid, benefits,
or services under the recipient's education program or activity would
include but are not limited to, persons who supervise internships or
clinical experiences that are part of a student's academic program,
volunteers who regularly provide an aid, benefit or service under a
recipient's education program or activity, or board of trustees'
members who serve as unpaid volunteers. On the other hand, in the
Department's experience, students in positions of responsibility in an
extracurricular activity, such as a team captain or club president, are
generally not authorized by a recipient to provide aid, benefits, or
services under the recipient's education program or activity and would
not come under this prohibition.
The Department stated, in the preamble to the 2020 amendments, that
quid pro quo harassment could include explicit and implicit conduct but
did not expressly make this point in the text of the current
regulations. The proposed revisions to the regulatory text would
incorporate the principle the Department articulated in the preamble to
the 2020 amendments that quid pro quo harassment should be interpreted
``broadly to encompass situations where the quid pro quo nature of the
incident is implied from the circumstances'' and that ``quid pro quo
harassment applies whether the `bargain' proposed by the recipient's
employee is communicated expressly or impliedly.'' 85 FR 30147
(footnotes omitted). In addition, the Department proposes retaining the
interpretation articulated in the preamble to the 2020 amendments that
``quid pro quo harassment does not depend on whether `the student
resists and suffers the threatened harm or submits and avoids the
threatened harm,' '' to show that the student's ability to participate
in or benefit from the school's program has been denied or limited, on
the basis of sex in violation of the Title IX regulations. Id. at 30148
n.645 (emphasis omitted) (quoting 2001 Revised Sexual Harassment
Guidance at 5).
Category Two: Hostile Environment
Distinction between administrative enforcement and private lawsuits
for monetary damages. In the 2020 amendments, the Department adopted
verbatim the formulation that the Davis Court used in the context of
private lawsuits for monetary damages: ``unwelcome conduct that a
reasonable person would determine is `so severe, pervasive, and
objectively offensive' that it effectively denies a person equal access
to education.'' Id. at 30036 (quoting Davis, 526 U.S. at 650). OCR
heard from a variety of stakeholders in connection with the June 2021
Title IX Public Hearing and in listening sessions regarding the current
definition of ``sexual harassment.'' In addition, stakeholders provided
views on the current definition of ``sexual harassment'' during
meetings held in 2022 under Executive Order 12866. Some stakeholders
supported the current definition while other stakeholders urged the
return to the prior definition of ``sexual harassment'' (i.e., hostile
environment) previously used in OCR's administrative enforcement and
expressed concern that the current narrower definition, which is based
on case law related to private lawsuits for monetary damages, could
leave some serious sexual misconduct unaddressed. These stakeholders
also expressed concern about the inconsistency between the new,
narrower definition in the 2020 amendments and the longstanding,
broader definition used in prior OCR guidance, Title VII case law, and
EEOC guidance. These stakeholders encouraged the Department to take a
more uniform approach to hostile environment harassment, noting that it
is a concept developed though court decisions interpreting other
Federal statutes prohibiting discrimination, including Title VII and
Title VI.
The Department reviewed its decision to use the standards
applicable to private suits for monetary damages as the starting point
for the standards used by OCR in its administrative enforcement of
Title IX, including the Supreme Court's standard for actionable sexual
harassment under Title IX. The Department's tentative view is that it
is permitted to depart from the standards set out by the Court for
actionable sexual harassment under Title IX because the Court expressly
acknowledged the power of Federal agencies, such as the Department, to
``promulgate and enforce requirements that effectuate [Title IX's]
nondiscrimination mandate,'' even in circumstances that would not give
rise to a claim for monetary damages. Gebser, 524 U.S. at 292. Such a
view is consistent with how the Court has interpreted the Department's
broad regulatory authority in other Title IX contexts. For example, the
Court also noted that ``the Department of Education could enforce the
requirement administratively'' that a school ``promulgate a grievance
procedure'' even though the failure to do so ``does not itself
constitute `discrimination' under Title IX.'' Id. Similarly, the Court
has explained that the Department may require schools to sign
assurances of compliance under Title IX, even though the failure to
sign such assurances would not itself constitute sex discrimination by
the recipient. See Grove City Coll., 465 U.S. at 574.
After considering the issues and reweighing the facts and
circumstances, including the views expressed by a variety of
stakeholders, the Department proposes retaining the term ``unwelcome
conduct'' from the 2020 amendments, but replacing the definition of
``sexual harassment'' from Davis in the current regulations with the
hostile environment framework to describe when sex-based harassment in
category two is prohibited under Title IX.
The proposed regulations thus provide that sex-based harassment in
category two would cover unwelcome sex-based conduct that is
sufficiently severe or pervasive that, based on the totality of the
circumstances and evaluated subjectively and objectively, it denies or
limits a person's ability to participate in or benefit from the
recipient's education program or activity (i.e., the conduct creates a
hostile environment).
In the preamble to the 2020 amendments, the Department acknowledged
that it is not legally required to adopt the Gebser/Davis framework for
sexual harassment, but noted that the Supreme Court did not prohibit
the Department from doing so and chose to adopt the Davis standard for
actionable sexual harassment in part because ``aligning the Title IX
sexual harassment definition in administrative enforcement and private
litigation contexts provides clear, consistent expectations for
recipients.'' 85 FR 30149.
The Department's tentative view is that defining ``sex-based
harassment'' in category two using the hostile environment framework
will enable the Department to enforce Title IX's nondiscrimination
mandate and provide more effective protection against sex
discrimination in a recipient's education program or activity because
the definition of ``sex-based harassment'' covers a broader range of
sexual misconduct than that covered under the definition of ``sexual
harassment'' in the current regulations. The Department's tentative
view is also
[[Page 41414]]
that the hostile environment framework appropriately captures the key
concepts articulated by the Court in Davis and protects the First
Amendment rights and interests of students and employees. The
Department acknowledges that revising the definition of ``sex-based
harassment'' in category two using the hostile environment framework
may create additional work for recipients because they will be subject
to a different standard in the administrative enforcement context than
they are in the context of private suits for monetary damages and
because the definition may require recipients to respond to a broader
range of conduct, but Title IX's plain language prohibits any
discrimination on the basis of sex in a recipient's education program
or activity and the Department proposes that in the administrative
enforcement context Title IX must function as a strong and
comprehensive measure to effectively address sex discrimination. See
generally 118 Cong. Rec. 5803-5812 (1972) (statement of Sen. Bayh).
Hostile environment analysis. The proposed revisions to the second
category of sex-based harassment would require that the unwelcome sex-
based conduct be sufficiently severe or pervasive that, based on the
totality of the circumstances and evaluated subjectively and
objectively, it denies or limits a person's ability to participate in
or benefit from the recipient's education program or activity.
Requiring the unwelcome sex-based conduct to be evaluated subjectively
and objectively and based on the totality of the circumstances is
consistent with the analysis discussed by the Department in the
preamble to the 2020 amendments, which stated that ``whether harassing
conduct is `objectively offensive' must be evaluated under a reasonable
person standard, as a reasonable person in the complainant's position''
and also required that the conduct be unwelcome from a subjective
perspective. 85 FR 30167. This is also consistent with Davis and
relevant Title VII Supreme Court cases. See, e.g., Davis, 526 U.S. at
650 (conduct must be ``objectively offensive'' to trigger liability for
money damages); Harris v. Forklift Sys., 510 U.S. 17, 21-22 (1993)
(explaining that ``if the victim does not subjectively perceive the
environment to be abusive, the conduct has not actually altered the
conditions of the victim's employment, and there is no Title VII
violation'' and that a ``reasonable person'' standard should be used to
determine whether sexual conduct constituted harassment); Oncale, 523
U.S. at 81 (``[T]he objective severity of harassment should be judged
from the perspective of a reasonable person in the [complainant's]
position, considering `all the circumstances.' '' (quoting Harris, 510
U.S. at 23)).
The Department's proposal to require that the conduct be ``severe
or pervasive'' as opposed to ``severe, persistent, or pervasive'' is
consistent with the Court's opinion in Davis. Although the Davis Court
described the conduct at issue in the case as ``persistent,'' that term
was not part of the Court's analysis or the definition adopted by the
Court. See Davis, 526 U.S. at 650-53 (describing damages liability
standard when funding recipient is deliberately indifferent to
harassment that is ``severe, pervasive, and objectively offensive'').
Title IX prohibits sex-based harassment that denies or limits a
person's ability to participate in or benefit from the education
program or activity. The Department explained in the preamble to the
2020 amendments that the unwelcome conduct under category two must
``effectively den[y] a person equal access to the recipient's education
program or activity'' for two reasons: first, because that was the
language used by the Court in Davis; and second, because the Department
believed that it was the ``equivalent of a violation of Title IX's
prohibition on exclusion from participation, denial of benefits, and/or
subjection to discrimination.'' 85 FR 30156-57. After considering the
issue and reweighing the facts and circumstances, the Department
proposes revising this language to encompass sex-based conduct that
denies or limits a person's ability to participate in or benefit from
the recipient's education program or activity. The Department's current
position is that this language more appropriately captures the full
scope of Title IX's nondiscrimination mandate. The language of the
statute, ``denied the benefits,'' does not require otherwise and, to
the contrary, supports the Department's proposed revision because a
limitation on equal access constitutes a denial of benefits. 20 U.S.C.
1681(a). For example, Title IX prohibits a recipient from awarding
female students half as many credits as male students for taking the
same class, even though the recipient has not completely denied female
students the credit benefits of taking the class. In this way, a
recipient need not completely deny, by policy or effect, a student's
equal access to its education program or activity based on sex before
it denies a student the benefits of its program or activity, thereby
violating Title IX.
The Department's proposed regulatory language is consistent in many
respects with the principles articulated in the preamble to the 2020
amendments, which explained the variety of situations that would be
covered under the current regulations. There the Department explained
that a complainant does not need to have been ``entirely, physically
excluded from educational opportunities,'' 85 FR 30169, and ``no
specific type of reaction to the alleged sexual harassment is necessary
to conclude'' that the complainant was effectively denied equal access
to the recipient's education program or activity, id. at 30170. The
Department also explained that ``[c]ommenters' examples of a third
grader who starts bed-wetting or crying at night due to sexual
harassment, or a high school wrestler who quits the team but carries on
with other school activities following sexual harassment, likely
constitute examples of denial to those complainants of `equal' access
to educational opportunities even without constituting a total
exclusion or denial of an education.'' Id. at 30170. These examples
would also satisfy the requirement in the proposed regulations that the
harassment must deny or limit the complainant's ability to participate
in or benefit from the recipient's education program or activity in
order to be covered. The Department also noted in the preamble to the
2020 amendments that ``signs of enduring unequal educational access due
to . . . harassment may include, as commenters suggest, skipping class
to avoid a harasser, a decline in a student's grade point average, or
having difficulty concentrating in class.'' Id. These examples would
also constitute signs of a denial or limitation of a complainant's
ability to participate in or benefit from the recipient's education
program or activity under the proposed regulations. Additional
information and examples related to this element of the definition are
provided in the discussion of factors that a recipient must consider
when determining if a hostile environment has been created.
Consistency with the First Amendment. In the preamble to the 2020
amendments, the Department wrote that the ``Davis definition of sexual
harassment as `severe, pervasive, and objectively offensive' comports
with First Amendment protections,'' while the definition articulated in
prior Department guidance ``has led to infringement of rights of free
speech and academic freedom of students and faculty.'' Id. at 30036
n.88. After considering these issues, the Department's tentative view
is that the proposed scope of conduct that would
[[Page 41415]]
constitute a hostile environment under the definition of ``sex-based
harassment'' in proposed Sec. 106.2 would sufficiently protect the
constitutional rights and interests of students and employees. It would
do so by requiring not only that the prohibited conduct be sufficiently
severe or pervasive that, based on the totality of the circumstances
and evaluated subjectively and objectively, it creates a hostile
environment, but also that the conduct be based on sex and occur under
the recipient's education program or activity. Title IX protects
individuals from sex discrimination and does not regulate the content
of speech as such. OCR has expressed this position repeatedly in
discussing Title IX in prior guidance. See 2001 Revised Sexual
Harassment Guidance at 22; 2003 First Amendment Dear Colleague Letter;
2014 Q&A on Sexual Violence at 43-44. The Department emphasizes that in
cases of alleged sex-based harassment, the protections of the First
Amendment must be considered if, for example, issues of speech or
expression are involved, including academic freedom. Students,
employees, and third parties retain their First Amendment rights, and
the Department's proposed regulations would not infringe these rights.
The Department further notes that current Sec. 106.6(d), to which the
Department is not proposing any changes, states that nothing in the
Title IX regulations requires a recipient to ``[r]estrict any rights
that would otherwise be protected from government action by the First
Amendment of the U.S. Constitution.'' 34 CFR 106.6(d).
Consistent with the proposed hostile environment category of sex-
based harassment discussed above, the offensiveness of a particular
expression as perceived by some persons, standing alone, would not be a
legally sufficient basis to establish a hostile environment under Title
IX. In addition, a recipient must formulate, interpret, and apply its
rules in a manner that respects the legal rights of students and
employees when taking action to end sex-based harassment that creates a
hostile environment. For instance, although the First Amendment may
prohibit a recipient from restricting the rights of students to express
opinions about one sex that may be considered derogatory, the recipient
can affirm its own commitment to nondiscrimination based on sex and
take steps to ensure that competing views are heard. The age of the
students involved and the location or forum in which such opinions are
expressed may affect the actions a recipient can take consistent with
the First Amendment.
Alignment with Title VII. Although courts often rely on
interpretations of Title VII to inform interpretations of Title IX, in
the preamble to the 2020 amendments the Department explained that there
are differences between Title IX ``and workplace policies that may
exist in the corporate world.'' 85 FR 30199; see also Franklin, 503
U.S. at 75; Jennings, 482 F.3d at 695; Frazier, 276 F.3d at 66;
Gossett, 245 F.3d at 1176. The Department also noted that Title VII's
prohibition on sexual harassment differs from that under Title IX in
the 2020 amendments and recipients that are subject to both Title VII
and Title IX must comply with both sets of obligations. 85 FR 30440.
The Department further noted that ``[c]ourts impose different
requirements under Title VII and Title IX and recipients comply with
case law that interprets Title VII and Title IX differently.'' Id. at
30443. The Department recognizes the differences between educational
and workplace environments and that in the context of private suits for
monetary damages under Title IX, the Supreme Court has applied a
different definition of ``sexual harassment'' under Title IX than it
has in the Title VII context. Id. at 30199, 30440, 30443. The
Department also heard from stakeholders, including recipients, that the
differences between the definitions of ``sexual harassment'' in OCR's
administrative enforcement context and the Title VII context created
confusion for employees and requesting alignment between the Title IX
and Title VII definitions, if possible, for sex-based harassment under
the recipient's education program or activity. Although these
stakeholders acknowledged that different grievance procedures may be
appropriate for resolving student and employee complaints of sex-based
harassment given the varying rights of students and employees, they
nonetheless expressed a desire for consistency in the definition of
``sex-bas
[…truncated; see source link]Indexed from Federal Register on July 12, 2022.
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