Rule2024-07915
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
April 29, 2024
Effective
August 1, 2024
Issuing agencies
Education Department
Abstract
The U.S. Department of Education (Department) amends the regulations implementing Title IX of the Education Amendments of 1972 (Title IX). The purpose of these amendments is to better align the Title IX regulatory requirements with Title IX's nondiscrimination mandate. These amendments clarify the scope and application of Title IX and the obligations of recipients of Federal financial assistance from the Department, including elementary schools, secondary schools, postsecondary institutions, and other recipients (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. These final regulations will enable all recipients to meet their obligations to comply with Title IX while providing them with appropriate discretion and flexibility to account for variations in school size, student populations, and administrative structures.
Full Text
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[Federal Register Volume 89, Number 83 (Monday, April 29, 2024)]
[Rules and Regulations]
[Pages 33474-33896]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-07915]
[[Page 33473]]
Vol. 89
Monday,
No. 83
April 29, 2024
Part II
Department of Education
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34 CFR Part 106
Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance; Final Rule
Federal Register / Vol. 89 , No. 83 / Monday, April 29, 2024 / Rules
and Regulations
[[Page 33474]]
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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: Final rule.
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SUMMARY: The U.S. Department of Education (Department) amends the
regulations implementing Title IX of the Education Amendments of 1972
(Title IX). The purpose of these amendments is to better align the
Title IX regulatory requirements with Title IX's nondiscrimination
mandate. These amendments clarify the scope and application of Title IX
and the obligations of recipients of Federal financial assistance from
the Department, including elementary schools, secondary schools,
postsecondary institutions, and other recipients (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. These final regulations
will enable all recipients to meet their obligations to comply with
Title IX while providing them with appropriate discretion and
flexibility to account for variations in school size, student
populations, and administrative structures.
DATES: These final regulations are effective August 1, 2024.
FOR FURTHER INFORMATION CONTACT:
Randolph Wills, U.S. Department of Education, 400 Maryland Avenue
SW, Fifth Floor, Washington, DC 20202. Telephone: (917) 284-1982.
Email: <a href="/cdn-cgi/l/email-protection#0173606f656e6d71692f76686d6d724164652f666e77"><span class="__cf_email__" data-cfemail="1765767973787b677f39607e7b7b6457727339707861">[email protected]</span></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:
Table of Contents
Table of Contents
Effective Date
Executive Summary
Purpose of This Regulatory Action
Summary of the Major Provisions of This Regulatory Action
Timing, Comments, and Changes
I. Provisions of General Applicability
A. Personal Stories
1. Experiences Relating to Title IX Grievance Procedures
2. Experiences Relating to Pregnancy
3. Experiences Relating to Sexual Orientation and Gender
Identity
B. Purpose
1. Section 106.1 Purpose
C. Definitions
1. Section 106.2 Definition of ``Administrative Law Judge''
2. Section 106.2 Definition of ``Complainant''
3. Section 106.2 Definition of ``Complaint''
4. Section 106.2 Definition of ``Disciplinary Sanctions''
5. Section 106.2 Definitions of ``Elementary School'' and
``Secondary School''
6. Section 106.2 Definition of ``Postsecondary Institution''
7. Section 106.2 Definition of Prohibited ``Sex-Based
Harassment''
8. Section 106.2 Definition of ``Relevant''
9. Section 106.2 Definition of ``Remedies''
10. Section 106.2 Definition of ``Respondent''
11. Section 106.2 Definition of ``Student With a Disability''
12. Section 106.2 Definition of ``Title IX''
D. Other Definitions (definitions that the Department did not
propose to amend)
1. Section 106.2 Definition of ``Employee''
2. Section 106.2 Definition of ``Federal Financial Assistance''
3. Section 106.2 Definition of ``Program or Activity''
4. Section 106.2 Definition of ``Recipient''
5. Section 106.2 Definition of ``Student''
6. Adding a definition of ``Party''
7. Adding a definition of ``Sex Discrimination''
E. Application
1. Section 106.11 Application
F. The Effect of Other Requirements and Preservation of Rights
1. Section 106.6(e) Effect of Section 444 of General Education
Provisions Act (GEPA)/Family Educational Rights and Privacy Act
(FERPA) and Directed Question 1
2. Section 106.6(g) Exercise of Rights by Parents, Guardians, or
Other Authorized Legal Representatives
3. Section 106.6(b) Preemptive Effect
II. Recipient's Obligation to Operate Its Education Program or
Activity Free From Sex Discrimination
A. Administrative Requirements
1. Section 106.8(a) Designation of a Title IX Coordinator
2. Section 106.8(b) and (c) Nondiscrimination Policy, Grievance
Procedures, and Notice of Nondiscrimination
3. Section 106.8(d) Training
4. Section 106.8(e) Students with Disabilities
5. Section 106.8(f) Recordkeeping
B. Action by a Recipient to Operate Its Education Program or
Activity Free From Sex Discrimination
1. Section 106.44(a) General
2. Section 106.44(b) Monitoring for Barriers
3. Section 106.44(c) Notification Requirements
4. Sections 106.2 and 106.44(d) ``Confidential employee''
requirements and definition
5. Section 106.44(e) Public Awareness Events
6. Section 106.44(f) Title IX Coordinator Requirements
7. Sections 106.44(g) and 106.2 Supportive Measures and
Definition of ``Supportive Measures''
8. Section 106.44(h) Emergency Removal
9. Section 106.44(i) Administrative Leave
10. Section 106.44(j) Prohibited Disclosures of Personally
Identifiable Information
11. Section 106.44(k) Informal Resolution Process
C. Framework for Grievance Procedures for Complaints of Sex
Discrimination
1. General Support
2. Due Process Generally
3. Administrative Burdens
4. Bifurcation of Sex-Based Harassment Complaints Between
Students and Employees at a Postsecondary Institution
5. Ability to Respond to Threats, Promptly Impose Discipline, or
Address Sex Discrimination
6. Grievance Procedures Appearing as Quasi-Judicial Proceedings
7. Consistency with Other Civil Rights Laws that OCR Enforces
8. Elementary Schools and Secondary Schools
9. Employees
10. Section 106.45 Grievance Procedures for the Prompt and
Equitable Resolution of Complaints of Sex Discrimination
11. Section 106.46 Grievance Procedures for the Prompt and
Equitable Resolution of Complaints of Sex-Based Harassment Involving
a Student Complainant or Student Respondent at Postsecondary
Institutions
D. Grievance Procedures for the Prompt and Equitable Resolution
of Complaints of Sex Discrimination (Section 106.45)
1. Section 106.45(a)(1) and Section 106.46(a)
2. Section 106.45(a)(2) Who Can Make Complaint
3. Section 106.45(b)(1) Treat Complainants and Respondents
Equitably
4. Section 106.45(b)(2) Conflicts of Interest or Bias
5. Section 106.45(b)(3) Presumption That the Respondent Is Not
Responsible for the Alleged Sex Discrimination Until a Determination
Is Made at the Conclusion of the Grievance Procedures
6. Sections 106.45(b)(4) and 106.46(e)(5) Timeframes
7. Section 106.45(b)(5) Reasonable Limitations on Sharing of
Information
8. Section 106.45(b)(6) Objective Evaluation of All Relevant
Evidence and 106.45(b)(7) Exclusion of Impermissible Evidence
9. Section 106.45(b)(8) Procedures that Apply to Some, but Not
All, Complaints
10. Section 106.45(c) Notice of Allegations
11. Section 106.45(d) Dismissal of a Complaint
12. Section 106.45(e) Consolidation of Complaints
13. Section 106.45(f) Complaint Investigations
14. Section 106.45(f)(1) Investigative Burden on Recipients
15. Section 106.45(f)(2) Opportunity To Present Witnesses and
Other Evidence
[[Page 33475]]
that Are Relevant and Not Otherwise Impermissible
16. Section 106.45(f)(3) Review and Determination of Relevant
Evidence
17. Section 106.45(f)(4) Access to the Relevant and Not
Otherwise Impermissible Evidence
18. Section 106.45(g) Evaluating Allegations and Assessing
Credibility
19. Section 106.45(h)(1) Standard of Proof and Directed Question
4
20. Section 106.45(h)(2) Notification of Determination Whether
Sex Discrimination Occurred
21. Section 106.45(h)(3) Remedies to a Complainant and Other
Appropriate Prompt and Effective Steps
22. Section 106.45(h)(4) Comply With This Section Before
Imposition of Disciplinary Sanctions
23. Section 106.45(h)(5) Prohibition on Discipline Based Solely
on Determination
24. Section 106.45(i) Appeals
25. Section 106.45(j) Additional Provisions
26. Section 106.45(l) Range of Supportive Measures and
Disciplinary Sanctions and Remedies
E. Grievance Procedures for the Prompt and Equitable Resolution
of Complaints of Sex-Based Harassment Involving a Student
Complainant or Student Respondent at Postsecondary Institutions
1. Section 106.46(b) Student-Employees
2. Section 106.46(c) Written Notice of Allegations
3. Section 106.46(d) Dismissal of a Complaint
4. Section 106.46(e)(1) Notice in Advance of Meetings
5. Section 106.46(e)(2) Role of Advisor
6. Section 106.46(e)(3) Other Persons Present at Proceedings
7. Section 106.46(e)(4) Expert Witnesses
8. Section 106.46(e)(5) Timeframes
9. Section 106.46(e)(6) Access to Relevant and Not Otherwise
Impermissible Evidence
10. Section 106.46(f) Evaluating Allegations and Assessing
Credibility
11. Section 106.46(g) Live Hearings
12. Section 106.46(h) Determination Whether Sex-Based Harassment
Occurred
13. Section 106.46(i) Appeals
14. Section 106.46(j) Informal Resolution
F. Assistant Secretary Review
1. Section 106.47 Assistant Secretary Review
III. Pregnancy and Parental Status
A. Revised Definitions
1. Section 106.2 Definition of ``Pregnancy or Related
Conditions''
2. Section 106.2 Definition of ``Parental Status''
B. Admissions
1. Section 106.21(c) Parental, Family, or Marital Status;
Pregnancy or Related Conditions
C. Discrimination Based on a Student's Parental, Family, or
Marital Status, or Pregnancy or Related Conditions
1. Section 106.40 Parental, Family, or Marital Status; Pregnancy
or Related Conditions; and Section 106.40(a) Status Generally
2. Section 106.40(b)(1) Pregnancy or Related Conditions--
Nondiscrimination
3. Section 106.40(b)(2) Pregnancy or Related Conditions--
Responsibility to Provide Title IX Coordinator Contact and Other
Information
4. Section 106.40(b)(3) Pregnancy or Related Conditions--
Specific Actions To Prevent Discrimination and Ensure Equal Access
5. Section 106.40(b)(3)(i) Pregnancy or Related Conditions--
Responsibility to Provide Information About Recipient Obligations
6. Section 106.40(b)(3)(ii) Pregnancy or Related Conditions--
Reasonable Modifications
7. Sections 106.40(b)(1) and 106.40(b)(3)(iii) Pregnancy or
Related Conditions--Voluntary Access to Separate and Comparable
Portion of Program or Activity
8. Section 106.40(b)(3)(iv) Pregnancy or Related Conditions--
Voluntary Leaves of Absence
9. Section 106.40(b)(3)(v) Pregnancy or Related Conditions--
Lactation Space
10. Section 106.40(b)(3)(vi) Pregnancy or Related Conditions--
Limitation on Supporting Documentation
11. Section 106.40(b)(4) Pregnancy or Related Conditions--
Comparable Treatment to Other Temporary Medical Conditions
12. Section 106.40(b)(5) Pregnancy or Related Conditions--
Certification To Participate
D. Discrimination Based on an Employee's Parental, Family,
Marital Status, Pregnancy, or Related Conditions
1. Section 106.51(b)(6) Employment--Granting and Return from
Leaves
2. Section 106.57 Parental, Family, or Marital Status; Pregnancy
or Related Conditions
3. Section 106.57(a) Parental, Family, or Marital Status
4. Section 106.57(b) Pregnancy or Related Conditions
5. Section 106.57(c) Comparable Treatment to Other Temporary
Medical Conditions
6. Section 106.57(d) Voluntary Leaves of Absence
7. Section 106.57(e) Lactation Time and Space
8. Section 106.60 Pre-Employment Inquiries
IV. Title IX's Coverage of Sex Discrimination
A. Section 106.10 Scope
1. General
2. Authority to Enact Regulations on Sexual Orientation and
Gender Identity Discrimination
3. Reliance on Bostock and Title VII Case Law
4. Sexual Orientation and Gender Identity Discrimination
Generally
5. Gender Identity
6. Sexual Orientation
7. Sex Characteristics
8. Sex Stereotypes
9. Pregnancy or Related Conditions
10. Menstruation or Related Conditions
B. Section 106.31(a) Education Programs or Activities--General
1. De Minimis Harm Standard
2. Application
3. Participation Consistent with Gender Identity
4. Parental Rights
5. Intersection with Health Care
6. Intersection with Individuals' Religious Beliefs
7. Appearance Codes
8. Juvenile Justice Facilities
9. Burden on Schools
V. Retaliation
A. Section 106.71 Retaliation
1. General Support and Opposition
2. Intersection with Sec. 106.45(h)(5)
3. Examples of Prohibited Retaliation
4. First Amendment
5. Requests to Clarify or Modify
6. Other Clarifications to Regulatory Text
B. Section 106.2 Definition of ``Retaliation''
1. Protected Activity
2. Adverse Action
3. Causal Connection
4. Other Clarifications to Regulatory Text
C. Section 106.2 Definition of ``Peer Retaliation''
VI. Outdated Regulatory Provisions
A. Section 106.3(c) and (d) Self-Evaluation
B. Sections 106.2(s), 106.16, and 106.17 Transition Plans
C. Section 106.41(d) Adjustment Period
VII. Miscellaneous
A. General Support and Opposition
B. Parental Rights--Generally
C. Religious Exemptions
1. General Support and Opposition
2. Section 106.12(c)
3. Section 106.12(b)
4. Transparency
5. Religious Individuals
6. 34 CFR 75.500(d) and 76.500(d)
D. Rulemaking Process
E. Length of Public Comment Period and Process for Submitting
and Posting Comments
F. Effective Date and Retroactivity
G. Prevention
H. Tenth Amendment
I. Exceeding Authority
J. Views of Assistant Secretary Lhamon
K. Regulatory Action Not Necessary
L. Need for Long-Lasting, Flexible Regulations
M. Intersection with Other Laws
N. Family Policymaking Assessment
O. National Origin and Immigration Status
P. Coverage of Employment
Q. Funding for Compliance
R. Technical Assistance
S. Coordination
T. Terminology
U. Discipline of Student Organizations
V. Contractors
W. Data Collection and Climate Surveys
X. OCR Enforcement Practices
Y. Severability
Z. Addressing Other Issues
AA. Comments Outside the Scope of Title IX
Regulatory Impact Analysis (RIA)
A. Comments on the Department's Model and Baseline Assumptions
1. Regulatory Flexibility Act (Small Business Impacts)
2. Taxpayer Costs
3. Cost Estimate
4. Definition of Sex-Based Harassment (Sec. 106.2)
[[Page 33476]]
5. Nondiscrimination Policy and Grievance Procedures (Sec.
106.8)
6. Training Requirements (Sec. 106.8(d))
7. Recordkeeping (Sec. 106.8(f))
8. Application of Title IX (Sec. 106.11)
9. Duty to Address Sex Discrimination (Sec. 106.44)
10. Title IX Coordinator Obligations: Duty to Monitor (Sec.
106.44(b) and (f))
11. Notification Requirements (Sec. 106.44(c))
12. Provision of Supportive Measures (Sec. 106.44(f)-(g))
13. Impartial Review of Supportive Measures (Sec. 106.44(g)(4))
14. Grievance Procedures (Sec. Sec. 106.45 and 106.46)
15. Regulatory Stability and Reliance Interests
16. Training for Decisionmakers (Sec. 106.46(f)(4))
17. Single-Investigator Model (Sec. 106.45(b)(2))
18. Pregnancy or Related Conditions (Sec. Sec. 106.40 and
106.57(e))
19. Scope of Sex Discrimination (Sec. 106.10)
20. Menstruation or Related Conditions
21. Other
B. Regulatory Impact Analysis (RIA)
1. Need for Regulatory Action
2. Discussion of Costs, Benefits, and Transfers
3. Benefits of the Final Regulations
4. Costs of the Final Regulations
5. Regulatory Alternatives Considered
6. Accounting Statement
C. Regulatory Flexibility Act (Small Business Impacts)
1. Introduction
2. Final Regulatory Flexibility Analysis
Executive Order 12250 On Leadership And Coordination of
Nondiscrimination Laws
Paperwork Reduction Act of 1995
Assessment of Educational Impact
Federalism
Accessible Format
Electronic Access to This Document
Effective Date
As detailed more extensively below, the Department recognizes the
practical necessity of allowing recipients of Federal financial
assistance time to plan for implementing these final regulations.
Taking into account the need for the time to plan, as well as
consideration of public comments about an effective date as explained
in the discussion of Effective Date and Retroactivity (Section VII.F),
the Department has determined that these final regulations are
effective August 1, 2024.
Executive Summary
1. Purpose of This Regulatory Action
Enacted in 1972, Title IX states that ``No person in the United
States shall, on the basis of sex, be excluded from participation in,
be denied the benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial assistance,''
absent certain exceptions. 20 U.S.C. 1681.\1\ The U.S. Department of
Education (the ``Department'' or ``we'') has authority to issue rules
effectuating this prohibition on sex discrimination consistent with the
objectives of the statute. 20 U.S.C. 1682. The history of the Title IX
regulations is described in the preamble to the 2020 amendments to the
Title IX regulations. 85 FR 30026, 30028 (May 19, 2020) (hereinafter
``the 2020 amendments''); see also 87 FR 41390, 41393-95 (July 12,
2022). The 2020 amendments specify how a recipient \2\ must respond to
sexual harassment, and the preamble to the 2020 amendments acknowledged
that the regulations issued under the 2020 amendments represented a
partial change from the way the Department had enforced Title IX with
respect to recipients' duties to respond to sexual harassment prior to
the 2020 amendments. 85 FR 30068.
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\1\ The definition of the term ``Federal financial assistance''
under the Department's 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).
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.
\2\ Throughout this preamble, ``recipient'' is used to refer to
a recipient of Federal financial assistance from the Department.
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Based on an extensive review of the 2020 amendments, information
including stakeholder feedback received prior to the issuance of the
notice of proposed rulemaking (the ``July 2022 NPRM,'' 87 FR 41390
(July 12, 2022)), and consideration of public comments on the July 2022
NPRM, the Department has determined that amendments are required to
fully effectuate Title IX's sex discrimination prohibition. Even if
these amendments are not strictly required to effectuate the
prohibition, the Department has, in the exercise of its discretion,
determined that they further Title IX's prohibition on sex
discrimination. The Department therefore issues these final regulations
to provide greater clarity regarding: the definition of ``sex-based
harassment''; 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; and recipients' obligations to provide an
educational environment free from discrimination on the basis of sex.
Additionally, these regulations aim to fulfill Title IX's protection
for students, teachers, and other employees in federally funded
elementary schools and secondary schools and postsecondary institutions
against all forms of sex discrimination, including sex-based harassment
and sexual violence. The final regulations will help to ensure that all
students receive appropriate support when they experience sex
discrimination and that recipients' procedures for investigating and
resolving complaints of sex discrimination are fair to all involved.
These final regulations also better account for the variety of
recipients and education programs or activities covered by Title IX and
provide discretion and flexibility for recipients to account for
variations in school size, student populations, and administrative
structures.
These regulations:
<bullet> Require recipients to adopt grievance procedures that
provide for fair, prompt, and equitable resolution of complaints of sex
discrimination and to take other necessary steps to provide an
educational environment free from sex discrimination;
<bullet> Clarify that Title IX's prohibition on sex discrimination
includes sex-based harassment in the form of quid pro quo harassment,
hostile environment harassment, and four specific offenses (sexual
assault, dating violence, domestic violence, and stalking); and
<bullet> Clarify that sex discrimination includes discrimination on
the basis of sex stereotypes, sex characteristics, pregnancy or related
conditions, sexual orientation, and gender identity.
2. Summary of the Major Provisions of This Regulatory Action
With regard to sex-based harassment, the final regulations:
<bullet> Define ``sex-based harassment'' as a form of sex
discrimination that includes sexual harassment and harassment based on
sex stereotypes, sex characteristics, pregnancy or related conditions,
sexual orientation, or gender identity, that is quid pro quo
harassment, hostile environment harassment, or one of four specific
offenses referenced in the Jeanne Clery Disclosure of Campus Security
Policy and Campus Crimes Statistics Act (``Clery Act'') as amended by
the Violence Against Women Reauthorization Act of 2013;
<bullet> Provide and clarify definitions of various terms related
to a recipient's obligations to address sex discrimination, including
sex-based harassment;
<bullet> Clarify a recipient's required response to sex
discrimination, including sex-based harassment, in its education
program or activity;
[[Page 33477]]
<bullet> Strengthen a recipient's obligations to provide prompt and
equitable grievance procedures and to take other necessary steps when
it receives a complaint of sex discrimination, including sex-based
harassment; and
<bullet> Provide for additional requirements in grievance
procedures at postsecondary institutions for complaints of sex-based
harassment involving a student complainant (a student who is alleged to
have been subjected to conduct that could constitute sex
discrimination) or student respondent (a student who is alleged to have
violated the recipient's prohibition on sex discrimination).
With regard to discrimination against individuals who are pregnant
or parenting, the final regulations:
<bullet> Define the terms ``pregnancy or related conditions'' and
``parental status'';
<bullet> Clarify the prohibition on discrimination against students
and applicants for admission and employees or applicants for 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 pregnancy-related
conditions.
In addition, the final regulations:
<bullet> Clarify and streamline administrative requirements with
respect to designating a Title IX Coordinator, disseminating a
nondiscrimination notice, adopting grievance procedures, and
maintaining records;
<bullet> Specify that a recipient must train a range of relevant
persons on the recipient's obligations under Title IX;
<bullet> Clarify that, except as permitted by certain provisions of
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.
Timing, Comments, and Changes
On July 12, 2022, the Department published the July 2022 NPRM in
the Federal Register to amend regulations implementing Title IX. 87 FR
41390.
The Department invited the public to comment on all aspects of the
proposed regulations, as well as the Regulatory Impact Analysis. The
July 2022 NPRM also included several directed questions. 87 FR 41544.
Comments in response to directed questions are addressed in this
preamble in connection with the relevant regulatory section.
In response to our invitation in the July 2022 NPRM, we received
more than 240,000 comments on the proposed regulations. The final
regulations contain changes from the July 2022 NPRM, and these changes
are fully explained throughout the discussion in this preamble. We
discuss substantive issues raised in the comments under topical
headings, and by the sections of the final regulations to which they
pertain, including an analysis of the public comments and changes in
the final regulations since the publication of the July 2022 NPRM.
Generally, we do not address technical and other minor changes (such as
renumbering paragraphs, adding a word, or typographical errors).
Throughout this preamble, the Department refers to Title IX of the
Education Amendments of 1972, 20 U.S.C. 1681, 1682, 1683, 1685, 1686,
1687, 1688, 1689, as amended, as ``Title IX,'' to the Individuals with
Disabilities Education Act, 20 U.S.C. 1400 et seq., as the ``IDEA,'' to
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 701 et seq.,
as ``Section 504,'' to the Americans with Disabilities Act, 42 U.S.C.
12101 et seq., as the ``ADA,'' to Title VI of the Civil Rights Act of
1964, 42 U.S.C. 2000d et seq., as ``Title VI,'' to Title VII of the
Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., as ``Title VII,'' to
section 444 of the General Education Provisions Act (GEPA), 20 U.S.C.
1232g, which is commonly referred to as the Family Educational Rights
and Privacy Act of 1974, as ``FERPA,'' to the Health Insurance
Portability and Accountability Act of 1996, 42 U.S.C. 1320d et seq., as
``HIPAA,'' to the Jeanne Clery Disclosure of Campus Security Policy and
Campus Crime Statistics Act, 20 U.S.C. 1092(f), as the ``Clery Act,''
to the Violence Against Women Reauthorization Act of 2013, Public Law
113-4 (codified as amended throughout the U.S. code), as ``VAWA 2013,''
and to the Violence Against Women Act Reauthorization Act of 2022,
Public Law 117-103 (codified as amended throughout the U.S. Code), as
``VAWA 2022.'' In 2013, the Clery Act was amended by VAWA 2013. See
Public Law 113-4. In 2014, the Department amended the Clery Act
regulations at 34 CFR 668.46 to implement the statutory changes to the
Clery Act made by VAWA 2013. See 79 FR 62752 (Oct. 20, 2014). The
regulations took effect on July 1, 2015. Throughout this preamble,
references to the Clery Act mean the Clery Act as amended by VAWA 2013.
These final regulations interpret the Title IX statute consistent
with the Department's authority under 20 U.S.C. 1682. Throughout the
preamble, we refer to ``this part,'' meaning 34 CFR part 106. These
regulations' prohibitions on sex discrimination are coextensive with
the statute, and any use of ``and this part'' or ``or this part''
should be construed consistent with the fact that the final regulations
interpret the statute. The Department has revised the regulatory text
to clarify, as appropriate.
Throughout the preamble, the Department references statistics,
data, research, and studies that commenters provided in response to the
July 2022 NPRM. The Department's reference to these items, however,
does not necessarily speak to their accuracy. The preamble also breaks
up its discussion in several places as ``Comments,'' ``Discussion,''
and ``Changes.'' This structure is for readability, and the omission of
a reference to a comment in the ``Comments'' section does not mean that
a significant, relevant comment is not addressed in the ``Discussion''
section.
The final regulations define and apply the terms ``party,''
``complainant,'' and ``respondent.'' In this preamble, ``complainant''
generally means a person who is alleged to have been subjected to
conduct that could constitute sex discrimination, ``respondent'' means
a person who is alleged to have violated the recipient's prohibition on
sex discrimination, and ``party'' means a complainant or a respondent.
See Sec. 106.2. References in this preamble to a party, complainant,
respondent, or other individual with respect to exercise of rights
under Title IX should be understood to include situations in which a
parent, guardian, or other authorized legal representative exercises a
legal right to act on behalf of the individual. See Sec. 106.6(g).
Many commenters referenced the impact of sex discrimination or the
proposed regulations on individuals who belong to, or identify with,
certain demographic groups, and used a variety of acronyms and phrases
to describe such individuals. For consistency, throughout this preamble
we generally use the term ``LGBTQI+'' to refer to people 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 Department of Education, Office for
Civil Rights (OCR) guidance documents,
[[Page 33478]]
this preamble also uses variations of the LGBTQI+ acronym to track the
content of those documents, as appropriate.
In response to commenters who asked for clarification as to whether
the definitions in Sec. 106.2 apply to a term in a specific regulatory
provision, some of the regulatory provisions specifically refer to a
term ``as defined in Sec. 106.2'' to provide additional clarity.
Notwithstanding these points of additional clarification in certain
regulatory provisions, the definitions in Sec. 106.2 apply to the
entirety of 34 CFR part 106. For consistency, references in this
preamble are to the provisions as numbered in the final, and not the
proposed, regulations. Citations to ``34 CFR 106.'' are citations to
the Department's preexisting regulations and not these final
regulations.
Analysis of Comments and Changes
An analysis of the public comments and changes in the final
regulations since the publication of the July 2022 NPRM follows.
I. Provisions of General Applicability
A. Personal Stories
Numerous commenters shared personal stories with the Department.
These comments have been organized into three categories, and the
discussion of all of these comments follows.
1. Experiences Relating to Title IX Grievance Procedures
Comments: Numerous commenters shared with the Department
experiences they have had as complainants or respondents, people
supporting complainants or respondents, or persons or institutions
involved in Title IX grievance procedures.
Relating to complainants, such personal experiences included the
following:
<bullet> A wide variety of people from many backgrounds and
identities shared their stories as individuals who experienced sexual
harassment and assault, whether or not the incident became the subject
of a Title IX complaint. A number of personal stories generally
recounted sexual harassment and assault incidents impacting
undergraduate and graduate students and university faculty at public
and private postsecondary institutions.
<bullet> Other commenters shared stories as individuals who knew
complainants and witnessed the sexual harassment and assault, its
aftermath, and the Title IX grievance procedures. These commenters
included family members, friends and peers of the complainants, student
advocates, faculty and administrators, and individuals participating in
the Title IX grievance procedures.
<bullet> Commenters described sexual harassment and assault by a
wide variety of individuals. These included classmates, professors and
faculty, student athletes, intimate partners and ex-partners, friends,
and stalkers.
<bullet> Commenters described sexual harassment and assault, their
decision to engage with the Title IX grievance procedures, and their
experience with sexual harassment and assault from prior to and after
Title IX was enacted, prior to and after the 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); U.S. Dep't of Educ., Office for Civil Rights, Questions and
Answers on Title IX and Sexual Violence (Apr. 29, 2014) (rescinded in
2017) (2014 Q&A 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>; and U.S. Dep't of Educ., Office
for Civil Rights, Questions and Answers on Campus Sexual Misconduct
(Sept. 2017) (rescinded in 2020) (2017 Q&A on Campus Sexual
Misconduct), and prior to and after the 2020 amendments, <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>.
<bullet> The Department received comments from individuals who
described a range of traumatic incidents, including inappropriate and
harassing behaviors, unwanted touching, stalking, incidents of rape or
attempted rape, and longer-term emotionally and sexually coercive or
intimidating interactions.
<bullet> The Department received comments from individuals who did
not report their experiences for various reasons, including because
they feared that no one would believe them, did not know whom to report
to or the process for reporting, felt frustrated by a lack of response,
or did not want to relive the experience.
<bullet> The Department received comments from individuals about
the many detrimental effects that sexual harassment and assault can
have on complainants. Individuals described the physical, emotional,
and mental impacts of sexual harassment and assault, including feeling
afraid to attend their postsecondary institution and suffering mental
health symptoms such as post-traumatic stress disorder (PTSD) and
suicidality. Individuals also described the educational impacts of
sexual harassment and assault, including the inability to complete
class assignments, dropping classes, changing majors or leaving areas
of study, transferring schools, or leaving school altogether.
<bullet> The Department received comments from complainants who,
following the Title IX grievance procedures, felt that recipients did
not hold respondents accountable, or who were reprimanded or faced
repercussions for openly discussing their experiences and naming the
respondents.
<bullet> The Department also received stories from individuals
about the dynamics of sexual assault and harassment in which
individuals in positions of authority, including professors, faculty,
or staff, repeatedly harassed or assaulted individuals, sometimes with
the recipient's knowledge, and without meaningful action by the
recipient to prevent continued abuse or conduct investigations into
wrongdoing.
<bullet> The Department received numerous comments from
complainants who shared their views that the current Title IX system
and its implementation by recipients is not protecting individuals from
sexual harassment and assault or delivering justice for complainants
and is instead perpetuating the harm. Commenters shared that they: had
been failed by the system by being forced to relive their trauma
through the Title IX grievance procedures, while being offered few
protections; had faced a lack of resources for student complainants;
and had encountered widespread systemic shortcomings and institutional
negligence. Commenters stated that, in their experience, the Title IX
grievance procedures put complainants in danger, disrupted their
education, and allowed recipients to ignore their concerns, rather than
work with complainants to address campus safety issues.
<bullet> The Department received comments from complainants about
the importance of Title IX in investigating complaints of sexual
assault and providing relief that may not be available in the criminal
justice system, but who said the 2020 amendments failed them. Some
commenters shared that the 2020 amendments fail to protect complainants
because they require cross-examination for postsecondary institutions,
the process can be very lengthy, and other factors, such as the
definition of sexual harassment, make it harder for complainants to
come forward. Other commenters shared that the Title IX grievance
procedures allow for separately tracked investigations into the same
individual, without complainants' knowledge, making it more difficult
to show an individual's pattern of misconduct.
<bullet> The Department also received comments from complainants
specific to how their schools handled the Title IX grievance
procedures. Complainants
[[Page 33479]]
shared their experiences on interactions with Title IX offices that,
they felt, were mismanaged, left them feeling alienated and silenced,
and further harmed their ability to access their educational
opportunities. The Department received comments about Title IX offices
that did not inform complainants about available resources, interviewed
complainants in an inappropriate manner, and pushed complainants toward
informal resolutions, despite their stated wish to pursue a formal
hearing. Some commenters shared that student and staff efforts to
improve the Title IX grievance procedures on campus and enhance
complainant resources were rebuffed by administrators. Some commenters
shared that because of their school's handling of their Title IX
investigation, they no longer felt safe or welcome in higher education
and had either dropped out of college or changed their plans for
graduate education or careers in academia.
<bullet> The Department received comments from complainants from
student populations who already face challenges to their education, or
face discrimination on campus, and about the specific burdens faced by
those populations. Commenters who experience certain mental illnesses
shared their particular susceptibility to coercive behaviors by their
assailants, both during and after their assaults, and how their
existing medical conditions made it harder both to be taken seriously
by investigators and to recover enough to successfully engage in their
educational experience. Other commenters, complainants who identify as
LGBTQI+, shared that their Title IX investigators and school
administrators did not take their complaints seriously and that the
entire experience made them want to leave school.
Relating to respondents, commenters reported personal experiences
that included the following:
<bullet> A variety of people shared their stories as respondents.
Commenters included respondents who were postsecondary institution
faculty and students, as well as friends, acquaintances, and family of
respondents. The personal stories recounted the impact of Title IX
investigations on the respondents when they were undergraduate and
graduate students and university faculty at public and private
postsecondary institutions.
<bullet> Other commenters shared the negative consequences that an
allegation of sexual harassment and assault can have on respondents,
whether or not they are formally disciplined or found responsible at
the conclusion of the grievance procedures. Commenters shared how such
allegations can negatively impact someone's life, leave them with
mental anguish and a tarnished record, and negatively impact their
educational future and career opportunities.
<bullet> The Department received some comments from individuals who
expressed concern that the Title IX grievance procedures were generally
unfair to respondents. Some commenters were concerned that
investigators in certain Title IX investigations presume that the
respondent was guilty, no matter the evidence.
<bullet> The Department also received comments from individuals who
expressed concern that the Title IX grievance procedures allow for
false accusations. Some commenters shared that they knew multiple
respondents who were involved in situations in which the complainants
had originally initiated physical intimacy to start a relationship and
only brought complaints when that did not materialize. Others expressed
their views that complainants sometimes do not tell the truth and make
up accusations to resolve personal disputes. Others expressed
frustration that what they viewed as normal sexual exploration was
being misconstrued as sexual assault.
<bullet> The Department received comments from respondents who were
forced to leave postsecondary institution faculty positions as part of
settlements for investigations that they felt were unfair and based on
misconstrued or fabricated facts. Commenters who were respondents said
they felt coerced into signing settlement agreements because they did
not have the emotional or financial capability to continue to defend
themselves.
2. Experiences Relating to Pregnancy
Comments: Several commenters shared with the Department experiences
they have had with respect to pregnancy.
Some commenters shared stories of students who experienced
discrimination based on pregnancy or related conditions and lactation.
One commenter shared the experience of someone who was excluded from
school activities due to pregnancy and was required to attend a
different school farther away, without transportation. The commenter
noted that if the proposed regulations had been in place, the student
would have understood her rights and more could have been done to
protect her right to continue her education at the original school. One
commenter mentioned a student who considered quitting school due to
lack of an appropriate lactation space. The commenter referred to
another student whose school denied lactation breaks entirely, causing
the student to lose her milk supply. Another commenter shared a
personal experience supporting a high school student whose academic
honors designation was revoked because of rumors that she terminated a
pregnancy. Some commenters stated that they were never informed of
their rights as pregnant and parenting students under Title IX,
including available supports for the healthcare needs of pregnant
women. Some commenters described experiences of pregnancy-based
harassment, noting that students who become pregnant are often
subjected to unwanted sexual attention, shame, and even punishment.
Other commenters supported strengthened protection for pregnant
employees, sharing experiences of their own, or of friends or co-
workers who experienced employment problems, such as a termination of
employment due to difficulties related to pregnancy.
3. Experiences Relating to Sexual Orientation and Gender Identity
Comments: The Department received numerous comments in support of
and in opposition to the July 2022 NPRM's clarification of the
application of Title IX's prohibition on sex discrimination to
discrimination based on sexual orientation and gender identity.
In support of the clarification that Title IX prohibits
discrimination based on sexual orientation and gender identity,
commenters shared personal experiences including the following:
<bullet> Commenters from more than 40 States in all regions of the
United States and in communities across the political spectrum shared
their experiences as members of the LGBTQI+ community, or as parents,
teachers, and friends of LGBTQI+ individuals. They described bullying
and harassment of students based on sexual orientation and gender
identity that ranged from single interactions with peers to systemic
concerns such as constant verbal harassment, bullying, and threats of
physical violence that are often ignored or excused by recipients from
early elementary school through graduate school.
[cir] Some parents expressed concern that recipients do not
understand the importance of a safe educational environment. Other
parents expressed gratitude for the life-changing impact schools that
prevent and meaningfully address incidents of harassment and bullying
have on LGBTQI+ students.
[[Page 33480]]
[cir] Teachers shared their experiences supporting LGBTQI+ students
in educational environments that do not support or encourage all
students, which they stated impacts the ability of LGBTQI+ students to
thrive and academically succeed.
[cir] School counselors shared their experiences providing academic
and mental health supports to LGBTQI+ students being bullied or
experiencing harassment and discrimination. Counselors stressed that
supportive adults and educational environments can save LGBTQI+
students' lives.
<bullet> LGBTQI+ students and their parents and teachers shared
that harassment, bullying, and threats of physical violence leave
students in constant fear, cause social anxiety and stress disorders,
and too frequently result in suicidality. Some students who identify as
LGBTQI+ and as part of a racial or ethnic minority group or as a
student with a disability discussed feeling pressure to hide their
identity, which led them to avoid reporting harassment or
discrimination that occurs at school.
<bullet> A number of commenters living in districts or States where
local government has discussed or enacted bills that limit the rights
of LGBTQI+ people, shared how these actions negatively impact the
mental well-being and academic experience of LGBTQI+ students.
<bullet> Many commenters shared experiences unique to nonbinary and
transgender students.
[cir] Commenters who identified as nonbinary or transgender shared
their experiences being threatened and physically attacked and
explained the lasting anxiety and fear that those experiences cause in
addition to the significant impact such experiences have on their
ability to engage academically.
[cir] Transgender students shared being forced to use school
facilities that do not align with their gender identity, feeling unsafe
using the facilities, or not having access to gender neutral
facilities.
[cir] Commenters asserted that a safe educational environment for
nonbinary and transgender students is a matter of life or death. Many
transgender students shared that they or their friends had attempted
suicide because of the discrimination and harassment they had
experienced.
[cir] Transgender students in school districts that they viewed as
supportive shared the positive impact such schools have on their
social, emotional, and academic well-being.
In opposition to clarification that Title IX prohibits
discrimination based on sexual orientation and gender identity,
commenters described personal experiences including the following:
<bullet> Many commenters asked that Title IX focus only on ensuring
cisgender girls and women have equal access to education.
[cir] Two grandmothers shared their memories of being forced to
fundraise for basic sports equipment and being told not to pursue
certain careers because they were girls.
[cir] Another grandmother who worked with pregnant and parenting
teens shared her experience witnessing these students face significant
obstacles and prejudices. Both she and a minister who has worked with
women who have experienced sex discrimination, including sexual
assault, expressed concern that the proposed regulations would, in
their view, harm many cisgender women and their futures.
[cir] Some commenters worried that the proposed regulations would
negatively impact the developmental progress of their children.
<bullet> Some commenters expressed concern that the proposed
regulations would negatively impact parents and families.
[cir] Commenters, including grandparents and parents, shared their
families' experiences with different educational environments, and
expressed general concern that the proposed regulations would, in their
view, interfere in the personal lives of families.
[cir] Other commenters expressed concern that the proposed
regulations would diminish the role of parents in helping children make
decisions.
<bullet> Some commenters expressed concern that cisgender students
experience discomfort at school when they are required to participate
in activities and share facilities with transgender students.
Discussion: The Department appreciates the time and effort spent by
commenters who shared their personal experiences. The Department
thoughtfully and respectfully considered all of the personal
experiences, including of the many individuals who: have experienced
sex-based harassment and been complainants in Title IX grievance
procedures; have been respondents in Title IX grievance procedures;
have looked to their elementary schools, secondary schools, and
postsecondary institutions for support following sex-based harassment
and for prompt and equitable grievance procedures that are fair to all
involved; have experienced pregnancy or related conditions; have worked
with a parenting student; have experienced discrimination based on
sexual orientation and gender identity; have a variety of viewpoints
regarding sexual orientation and gender identity; and have supported or
witnessed other individuals having such personal experiences.
Many of the stories shared in the comments echo and expand upon
themes that the Department heard through the June 2021 nationwide
virtual public hearing on Title IX (June 2021 Title IX Public Hearing)
and in listening sessions and stakeholder meetings held in 2021 and
2022. As the Department explained in the July 2022 NPRM, the
overarching goal of the proposed regulations was to ensure that no
person experiences sex discrimination in education programs or
activities that receive Federal financial assistance. See 87 FR 41396.
The Department prepared the July 2022 NPRM with that goal in mind to
assist recipients in implementing 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. See id. As a result of the
robust public comment process, including from individuals personally
affected by these issues, these final regulations even better reflect
this goal.
Changes: Specific changes made to the proposed regulations are
described in the applicable sections of this preamble.
B. Purpose
1. Section 106.1 Purpose
Comments: One commenter expressed general support for proposed
Sec. 106.1. Another commenter asked the Department to consider
removing ``(with certain exceptions)'' from proposed Sec. 106.1 to
more forcefully state the purpose of Title IX. Another commenter urged
the Department not to remove ``of the Education Amendments of 1972''
from current Sec. 106.1 because there are other Federal laws named
``Title IX.''
Another commenter objected to the language in proposed Sec. 106.1
that states ``whether or not such program or activity is offered or
sponsored by an educational institution as defined in this part,''
arguing that this would cover conduct outside of the educational
context and exceed the scope of Title IX.
Discussion: The Department declines the commenter's suggestion to
remove the reference to Title IX's exceptions from Sec. 106.1 because
those exceptions are an important component of the statute. See 20
U.S.C. 1681(a)(1)-(9). The Department also declines the
[[Page 33481]]
commenter's suggestion to use Title IX's full name in this section. The
term ``Title IX'' is defined in Sec. 106.2 to include the original
statute and subsequent amendments, which are also relevant to Title
IX's purpose. Further, the risk is low that the public will confuse a
reference to ``Title IX'' in the Department's Title IX regulations with
another Federal law.
The Department disagrees with the commenter who objected to
language in Sec. 106.1 recognizing that Title IX applies to recipients
other than educational institutions. This language has been in the
purpose section of the regulations since the regulations were first
issued in 1975 and reflects the fact that recipients that are not
educational institutions (e.g., libraries, hospitals) also offer
education programs and activities, and those education programs and
activities are covered by Title IX. See 20 U.S.C. 1681(a) (providing
that Title IX's prohibition on sex discrimination applies to ``any
education program or activity receiving Federal financial
assistance''); 20 U.S.C. 1687 (defining ``program or activity'' to
include ``a department, agency, special purpose district, or other
instrumentality of a State or a local government''); see also U.S.
Dep't of Health, Educ., & Welfare, Final Rule: Nondiscrimination on the
Basis of Sex In Education Programs and Activities Receiving or
Benefiting from Federal Financial Assistance, 40 FR 24128, 24137 (June
4, 1975).
Changes: None.
C. Definitions <SUP>3</SUP>
---------------------------------------------------------------------------
\3\ Section I.C, ``Definitions,'' and Section I.D, ``Other
Definitions,'' do not address all the definitions in the final
regulations because certain definitions are discussed in other
sections. For example, the definition of ``confidential employee''
is discussed in Section II.B as part of a broader discussion of
confidential employee requirements that includes discussion of Sec.
106.44(d).
---------------------------------------------------------------------------
1. Section 106.2 Definition of ``Administrative Law Judge''
Comments: Commenters generally supported the proposed definition of
``administrative law judge'' and said it would aid in consistent and
effective enforcement of Title IX. One commenter interpreted the
proposed definition of ``administrative law judge'' to mean that a
hearing is required as part of a recipient's grievance procedures under
the proposed regulations.
Discussion: The Department acknowledges commenters' support for the
Department's proposed definition of ``administrative law judge.'' The
Department believes one commenter may have misunderstood the definition
as requiring a hearing for all Title IX grievance procedures. As
explained in the July 2022 NPRM, this revised definition of
``administrative law judge'' specifically refers and applies to a
hearing held under Sec. 106.81, which pertains to the Department's
efforts to secure a recipient's compliance with Title IX. See 87 FR
41399. A hearing under Sec. 106.81 is distinct from a hearing that may
be conducted as part of a recipient's Title IX grievance procedures
under Sec. Sec. 106.45 or 106.46, neither of which requires a live
hearing or participation of an administrative law judge.
Changes: None.
2. Section 106.2 Definition of ``Complainant''
General Support
Comments: Commenters expressed a range of perspectives and varied
reasons for supporting the proposed regulations' broadened definition
of ``complainant,'' which would permit a complaint by someone who is
not currently a student or employee as long as that person was
participating or attempting to participate in a recipient's education
program or activity at the time of the alleged discrimination. Some
commenters said that the restrictions of the 2020 amendments, requiring
a complainant to be participating or attempting to participate in the
recipient's education program or activity at the time of filing a
complaint rather than at the time of the alleged discrimination, made
it more difficult for recipients to investigate, address, and stop
sexual harassment, and forced recipients to dismiss Title IX complaints
brought by prospective students, former students, and former employees
who experienced sexual harassment under the recipient's education
program or activity.
Commenters said there is no reason to exclude people from the
protection of Title IX just because they left the school where the
discrimination allegedly occurred. Commenters noted a variety of
reasons that cause students to leave a school before filing a
complaint, including to get mental or emotional support, to regain a
sense of control, for fear of potential retaliation, for fear of losing
support or recommendations from academic advisors, or simply because
outside circumstances lead students to move in and out of educational
programs over time. Commenters stated that allowing former students to
make a complaint will encourage more reporting, prevent or deter future
misconduct, and allow students to obtain closure and resolution and
even return to school if the complaint is resolved. Commenters also
asserted that the proposed definition would fill gaps left by the 2020
amendments and ensure schools are held accountable for their responses
to sexual harassment. Some commenters appreciated that the proposed
definition of ``complainant'' did not include the term ``victim,''
noting that omitting stigmatizing and harmful words from the
regulations will promote reporting.
One commenter said that delayed reporting is so common in sexual
assault and other gender-based violence cases that the requirement to
dismiss complaints from former students has prevented recipients from
addressing conduct that could affect the campus environment. One
commenter said that survivors need to feel validated and cited research
finding that 59 percent of survivors wait to disclose, and usually
disclose after first talking with family or friends. Commenters relied
on multiple news stories, studies, and court decisions to illustrate
that sexual harassment can cause individuals to drop out of school or
transfer, and that the ability to address alleged harassment is
important, both for the individuals who experience harassment and to
prevent broader harm.
Several commenters generally supported the proposed definition of
``complainant,'' but suggested additional clarification or
modification. One group of commenters supported the right of persons to
make a complaint as long as they were participating or attempting to
participate in the recipient's education program or activity at the
time of the alleged sex discrimination, but requested that the
Department provide guidance and clarification regarding how a recipient
should proceed in such cases, particularly because the Department
proposed eliminating Sec. 106.45(b)(3)(ii) of the 2020 amendments,
which allows for the dismissal of a complaint when ``specific
circumstances'' prevent the recipient from gathering evidence
sufficient to reach a determination as to the formal complaint or
allegations therein. Another commenter recommended that the Department
add language making it clear that postdoctoral trainees, fellows, and
all other individuals training under recipient institutions can be
complainants, whether as a student or an employee.
One commenter suggested that the Department make this provision
retroactive to the extent possible because students who leave their
schools prior to the effective date of these revised regulations should
have a grace period to make a Title IX complaint under the new
regulations.
[[Page 33482]]
Discussion: With respect to a complaint brought by a former student
or employee who was participating or attempting to participate in the
recipient's education program or activity at the time of the alleged
sex discrimination, the recipient should proceed just as it would with
all other complaints under the recipient's grievance procedures in
accordance with Sec. 106.45, and if applicable Sec. 106.46. If, at
the time the complaint is filed, however, the respondent is no longer
participating in the recipient's education program or activity or is no
longer employed by the recipient, the complaint may be dismissed under
Sec. 106.45(d)(1)(ii). As explained in the July 2022 NPRM, the
Department proposed to remove Sec. 106.45(b)(3)(ii) because the term
``specific circumstances'' under which complaints could be dismissed
was vague and undefined, and the Department determined that it would be
preferable to revise the dismissal standard to instead include several
defined bases for discretionary dismissal. 87 FR 41478.
The Department declines to specify in the final regulations that a
postdoctoral trainee or fellow may be a complainant. We note, however,
that such an individual could fall into the definition of complainant
as a student, employee, or other individual participating or attempting
to participate in the recipient's education program or activity,
particularly if--as the commenter suggests--they are training under a
recipient postsecondary institution at the time of the alleged sex
discrimination.
While the Department understands commenters' desire to ensure that
former students who were subjected to sex discrimination prior to the
effective date of these regulations can still pursue a complaint, the
Department does not intend the final regulations to be enforced
retroactively, as stated in the July 2022 NPRM. 87 FR 41398. Under
Federal law, agencies may only issue regulations with retroactive
effect if the authorizing statute expressly grants such authority. See
5 U.S.C. 551(4) (Administrative Procedure Act provision defining a
``rule'' as an agency action with ``future effect''); see also Bowen v.
Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (``[A] statutory grant
of legislative rulemaking authority will not, as a general matter, be
understood to encompass the power to promulgate retroactive rules
unless that power is conveyed by Congress in express terms.''). Title
IX contains no such express grant of authority. For more information
about retroactivity, see the discussion of Effective Date and
Retroactivity (Section VII.F).
Changes: At the end of paragraph (1) of the definition of
``complainant,'' after ``Title IX,'' the Department added the words
``or this part'' for the reasons discussed in the Background/
Introduction, Executive Summary section of this preamble. For the same
reasons, the Department also added ``or this part'' after the reference
to Title IX in paragraph (2). The Department also has made a minor
technical edit by replacing ``when the alleged sex discrimination
occurred'' with ``at the time of the alleged sex discrimination'' in
final Sec. 106.45 (a)(2)(iv)(B).
General Opposition
Comments: Some commenters expressed general opposition to the
definition of ``complainant'' in Sec. 106.2, including on the grounds
that it exceeds the Department's authority or does not align with Title
IX and case law.
Some commenters asserted that the proposed definition of
``complainant'' was too broad, including because it applies to all sex
discrimination and not just sexual harassment; because former students
and employees allegedly do not face barriers to education and thus fall
outside the scope of Title IX; and because including such individuals
allegedly would allow them to make a complaint decades after leaving
the institution, including opportunistic complaints about conduct that
was not prohibited at the time it occurred. Commenters asserted that a
lack of time limits for complainants would be burdensome for
recipients, parties, and witnesses, result in complaints that are
difficult to investigate, and likely lead to a waste of resources,
abusive practices, and unfair or unsatisfactory outcomes that do not
further Title IX's goal of addressing sexual harassment in education
programs and activities, due in part to limitations on remedies a
university can impose after a student is no longer enrolled. Some
commenters questioned whether volunteers who experience sex
discrimination would be able to bring a complaint subject to the
grievance procedures and suggested that may inhibit the ability to
recruit volunteers.
Some commenters anticipated that the volume of Title IX complaints
would increase because of the proposed definition of ``complainant''
together with other proposed changes, such as the inclusion of
discrimination based on gender identity as a form of sex
discrimination, the allowance of allegations that involve off-campus
conduct, the removal of the actual knowledge standard, and the
requirement that a recipient's employees report allegations to the
Title IX Coordinator even when there is no complainant or the
individual who experiences sex discrimination does not wish to report
it. One commenter suggested that if the Department is no longer going
to require a complainant to be engaged in the education program or
activity at the time the complaint is filed, it should make that
requirement apply only prospectively.
Discussion: As the Supreme Court has recognized, the Department has
regulatory authority under Title IX to issue regulations that the
Department determines will best effectuate the purpose of Title IX, and
to require recipients to take administrative action to effectuate the
nondiscrimination mandate of Title IX. Gebser v. Lago Vista Indep. Sch.
Dist., 524 U.S. 274, 292 (1998). The Department disagrees that the
definition of ``complainant'' is too broad. As the Department explained
in the July 2022 NPRM, it is appropriate to apply the same definition
of ``complainant'' to all forms of sex discrimination, not just sex-
based harassment. 87 FR 41407-08. These final regulations are intended
to effectuate the purpose of Title IX, which is to eliminate any
``discrimination on the basis of sex in any education program or
activity receiving Federal financial assistance''--not just sex-based
harassment. 34 CFR 106.1; 20 U.S.C. 1681(a); see also 87 FR 41393.
Accordingly, consistent with the longstanding requirement that a
recipient must have grievance procedures that provide for the ``prompt
and equitable resolution of student and employee complaints alleging
any action that would be prohibited by'' the Title IX regulations, 40
FR 24128, the final regulations also require a recipient to adopt
grievance procedures that provide for the prompt and equitable
resolution of all complaints of sex discrimination, not just sexual
harassment, and to take other necessary steps to provide an educational
environment free from sex discrimination, see 87 FR 41390. This
requirement will help recipients fully and fairly implement Title IX's
nondiscrimination mandate in their education programs or activities and
is within the Department's authority to ensure compliance with the law.
The Department does not agree with commenters' contention that
former students or employees fall outside the scope of Title IX because
they no longer face barriers to participation in the recipient's
education program or activity. Title IX protects all ``person[s]'' from
sex discrimination, 20 U.S.C.
[[Page 33483]]
1681(a)(1), and the relief it affords is not limited to persons who are
presently experiencing sex discrimination as long as the discrimination
they allegedly experienced was within the scope of the statute's
protections at the time it occurred. This means that former students
and employees may seek relief under Title IX if they were previously
``excluded from participation in,'' ``denied the benefits of,'' or
``subjected to discrimination under any education program or activity
receiving Federal financial assistance.''
Title IX also protects students, employees, and others who continue
participating in the education program or activity from sex
discrimination that may persist or may be remedied after the specific
complainant no longer participates. Limiting a recipient's
responsibility to address sex discrimination to those circumstances in
which a complainant continues participating in the program or activity
fails to ensure that others who continue to participate benefit from
the nondiscrimination guarantee in Title IX. As other commenters noted,
the revised definition of ``complainant'' could increase the reporting
of sex discrimination because individuals struggle with the decision
whether to report an incident at the time it happens or while they are
still a student or employee, and the Department maintains that
encouraging reporting is an important factor in ensuring that
recipients can meet their Title IX nondiscrimination obligations. This
definition of ``complainant'' is well within the scope of Title IX
because it will help to ensure that a recipient operates its education
program or activity free from sex discrimination.
The Department recognizes commenters' concerns that the definition
of complainant together with other aspects of the final regulations,
including new Sec. 106.10 and changes to Sec. Sec. 106.11 and 106.44,
will likely result in an increase in Title IX complaints for some
recipients and possible additional administrative costs for some
recipients. However, it is the Department's position that ensuring a
recipient fully addresses all sex discrimination occurring under its
education program or activity, consistent with Title IX, is not
optional, is of paramount importance, and properly accounts for
financial costs to a recipient and for pecuniary and non-pecuniary
costs to students who experience sex discrimination in a recipient's
education program or activity. For more discussion of the Department's
evaluation of the costs and burdens of the final regulations, see the
Regulatory Impact Analysis.
The Department has carefully considered the commenters' concerns
and disagrees that the change in the definition of ``complainant'' will
invite new complaints decades after a student or employee has left a
recipient institution alleging conduct that was not prohibited at the
time it occurred. As stated in the July 2022 NPRM and in the discussion
of Effective Date and Retroactivity (Section VII.F), the Department
intends the final regulations to be enforced prospectively and not
retroactively. 87 FR 41398. Therefore, if an individual who left a
recipient institution makes a complaint requesting compliance solely
with regulatory requirements that were not in effect at the time of the
alleged conduct, the recipient would dismiss the complaint.
Independently, a recipient may dismiss a complaint under Sec.
106.45(d)(1)(ii) if the respondent is not participating in the
education program or activity and is not employed by the recipient, or
under Sec. 106.45(d)(iv) if the allegations, even if proven, would not
constitute sex discrimination under Title IX or this part.
For the reasons discussed here and above in the section on the
Definition of Complainant: General Support, the Department also has
determined that the benefits of allowing complaints by former students
and employees who were subjected to sex discrimination while
participating or attempting to participate in a recipient's education
program or activity justifies the potential risk and investigative
challenges of a complaint filed after someone leaves a recipient
institution. As noted above, commenters reported that sex-based
harassment can cause targeted students to drop out of school or
transfer schools to get away from the discriminatory environment or
remove themselves from a harmful or threatening situation; others may
fear retaliation and thus not feel comfortable making a complaint until
after they leave the institution. Commenters also noted that an
employee who experiences harassment may leave their job or fear
retaliation and refrain from reporting the harassment until they have
taken a new job. Under such circumstances, it is important for the
recipient to fulfill its Title IX obligations: to ensure that students
and employees who want to return can do so free from sex
discrimination; to prevent further harm and to ensure that a hostile
environment does not persist for the remaining members of the school's
community; and to investigate and properly address allegations of sex
discrimination in its education program or activity.
Finally, the Department disagrees with commenters who suggested
that covering volunteers in the definition of ``complainant'' will make
it more difficult for recipients to recruit and retain volunteers.
Title IX protects all ``person[s]'' from sex discrimination under a
recipient's education program or activity, 20 U.S.C. 1681(a), and
ensuring that volunteers can participate free from sex discrimination
should aid in recruitment and retention of such resources, not hinder
it.
Changes: None.
Participating or Attempting To Participate
Comments: Some commenters expressed support for the proposed
definition of ``complainant,'' but asked the Department to define and
provide examples of certain terms within the definition, including
``attempting to participate'' and ``participating or attempting to
participate in the recipient's education program or activity.'' One
commenter suggested that ``applying'' would be a clearer term.
Discussion: Whether someone is participating or attempting to
participate in a recipient's education program or activity requires a
fact-specific analysis to be made on a case-by-case basis. The
Department explained in the July 2022 NPRM that under the proposed
definition of ``complainant,'' someone who is not a student (or person
authorized to act on behalf of a student) or an employee could still be
a complainant if they were participating or attempting to participate
in the recipient's education program or activity as, for example, a
prospective student, or a guest speaker. 87 FR 41408. The participation
requirement was added in the 2020 amendments. It is not meant to limit
who can report sex discrimination or a recipient's obligation to
respond promptly--such as by offering supportive measures and
explaining the process for filing a complaint--but rather to prevent a
recipient from being legally obligated to initiate its grievance
procedures based on a complaint from a person having no relationship to
the recipient. 87 FR 41409 (citing preamble to the 2020 amendments, 85
FR 30138, 30198). The definition of ``complainant'' in these final
regulations shifts the focus of the analysis, however, from whether the
participation or attempted participation occurred at the time the
complaint was filed--as the 2020 amendments require--to the time of the
alleged sex discrimination. See 87 FR 41410. The Department has
concluded
[[Page 33484]]
that requiring participation or attempted participation at the time of
the alleged discrimination is better aligned with Title IX's text and
its goal of ensuring that a recipient operates its education program or
activity free from sex discrimination because it addresses conduct that
would have interfered with the complainant's ability to participate in
the recipient's education program or activity. As the First Circuit
explained in Doe v. Brown University, 896 F.3d 127, 132 & n.6, 133 (1st
Cir. 2018), complainants are not limited to a university's enrolled
students; they can include members of the public who ``are either
taking part or trying to take part of a funding recipient institution's
educational program or activity'' when they attend events such as
campus tours, sporting events, and lectures, as long as the alleged
discrimination relates to the individual's participation or attempted
participation in such program or activity. The participation
requirement is thus consistent with Federal appellate decisions,
including one handed down since the issuance of the July 2022 NPRM,
holding that the scope of Title IX's ``no person'' and ``subject to
discrimination under'' language extends to persons who are not students
or employees but who experience discriminatory treatment while
participating, or at least attempting to participate, in a recipient's
education program or activity. See Snyder-Hill v. Ohio State Univ., 48
F.4th 686, 707-09 (6th Cir. 2022) (reversing district court's dismissal
of Title IX claims by non-student plaintiffs who were allegedly subject
to sexual abuse while attending or participating in sporting events,
summer camp, or a tour of the school's athletics facilities), reh'g
denied, 54 F.4th 963 (6th Cir. 2022), cert. denied, 143 S. Ct. 2659
(2023).
The Department does not agree that ``applying'' is a better way to
describe ``attempting to participate'' because ``applying'' is too
narrow in scope. Even someone who is not applying for admission to a
recipient might be participating or attempting to participate in its
education program or activity, such as a prospective student visiting a
campus, a visiting student-athlete, or a guest speaker. See 87 FR
41408.
Changes: None.
Requests To Broaden Definition
Comments: Several commenters suggested broadening the definition of
``complainant,'' including by removing the distinction between
students, employees, and other persons and by including all campus
visitors whether or not they are participating or attempting to
participate in a recipient's education program or activity at the time
of the alleged sex discrimination. With respect to removing the
participation requirement for visitors, commenters said that if the
goal is to prevent recurrence of discrimination, a recipient still has
the responsibility to address misconduct when a visitor to a
recipient's campus is sexually assaulted by a student, even if the
visitor may not be participating or attempting to participate in the
recipient's education program or activity at the time of the alleged
sex discrimination. Commenters also proposed eliminating the
participation or attempted participation requirement altogether. One
commenter suggested simply covering ``a student, employee, or other
person alleged to have been subjected to unlawful sex discrimination
under Title IX,'' and noted that ``conduct'' may not be the correct
term to use because Title IX can be violated by commission of an act
but also by omission, or a failure to act.
Discussion: The Department declines to further broaden the
definition of ``complainant'' beyond changing the frame of reference
from participation at the time of the complaint to the time of the
alleged discrimination. Consistent with case law on this issue, it is
appropriate to distinguish between individuals who have a clear
connection to the recipient (students and employees), and other
individuals. The Department purposefully limited the individuals who
can be complainants to those who are participating or attempting to
participate in the recipient's education program or activity at the
time of the alleged discrimination because the Department does not
understand Title IX as imposing a duty on a recipient to address
conduct that could constitute sex discrimination when that conduct
could not have ``excluded'' the individual from ``participating in'' or
denied them the benefits of a recipient's education program or
activity. 20 U.S.C. 1681(a). As the First Circuit has explained, this
language means that a ``person must suffer unjust or prejudicial
treatment on the basis of sex while participating, or at least
attempting to participate, in the funding recipient's education program
or activity.'' Brown Univ., 896 F.3d at 131. As discussed above, a
visitor could be a complainant, but that will be a fact-based
determination that will depend, for example, on the reason for the
visit and what the individual was doing at the time of the alleged
discrimination.
Finally, the Department agrees that Title IX can be violated not
only by commission of an act but also by a failure to act. No change is
needed, though, because the phrase ``conduct that could constitute sex
discrimination'' includes both a recipient's actions and its inaction
in derogation of its Title IX obligations. See, e.g., 87 FR 41423
(stating that ``[t]he proposed regulations also recognize that remedies
may be appropriate when the recipient's own action or inaction in
response to an allegation of sex discrimination resulted in a distinct
Title IX violation'').
Changes: None.
3. Section 106.2 Definition of ``Complaint''
General Support
Comments: Some commenters supported the proposed expansion of
``complaint'' to include complaints made orally or in writing and with
or without a signature, and further supported removing the requirement
from the 2020 amendments that a formal complaint be submitted before a
recipient can investigate or offer informal resolution options. In
support of removing the formal complaint requirement, some commenters
pointed out the challenges it posed for certain students and their
families because of age, disability, or ability to write or
communicate. Some commenters asserted that the formal complaint
requirement is arbitrary and overly prescriptive and allows a recipient
to disregard valid complaints that do not conform exactly to the
specific complaint requirements. Other commenters shared that even
postsecondary students are hesitant to submit formal complaints, in
part out of fear of retaliation due to the level of detail required,
and stated that deterring complaints of sex-based harassment
contravenes the purpose of Title IX.
Some commenters appreciated that the proposed definition of
``complaint'' would offer more flexibility that will streamline the
complaint process, empower students, and better serve the purpose and
intent of Title IX. Some commenters pointed out that the proposed
definition of ``complaint'' will provide more opportunities for
students with disabilities or who need alternative forms of
communication to make complaints.
Some commenters asked for clarification on what constitutes a
``request to the recipient'' to initiate grievance procedures, citing
the risk of confusion and liability to recipients without further
clarification, and a need for more information in order to train staff
and ensure that employees
[[Page 33485]]
understand their responsibilities. Some commenters expressed concern
that a complainant may not realize they have to ask the recipient to
initiate the grievance procedures, and requested clarification on
whether a complainant must specifically use the phrase ``initiate the
recipient's grievance procedures'' or whether a complainant can use
alternative language to prompt the recipient to initiate the grievance
procedures, such as ``start an investigation'' or ``look into this
matter of sex discrimination.'' One commenter asked whether only asking
questions about the grievance procedures would trigger an
investigation.
One commenter who commended the proposed removal of the formal
complaint requirement suggested that the Department require some form
of written documentation of the complaint, short of the formal
complaint requirement, to commence an investigation and provide clarity
for both students and recipients.
One commenter who supported the proposed definition of
``complaint'' requested that the regulations explicitly state that oral
or written complaints from students with disabilities may be made
through adaptive communication formats such as sign language, physical
gestures, drawings, or communicating through an aide or caregiver,
citing these formats as critical for non-verbal students or students
with other communication challenges.
One commenter suggested that the proposed definition of complaint
use the term ``verbal'' instead of ``oral,'' noting that ``verbal'' is
more precise.
Discussion: The Department acknowledges commenters' support for the
proposed revision of the definition of ``complaint.'' The Department
shares commenters' concerns that the proposed definition might be
confusing to recipients or complainants because a recipient might
interpret the proposed definition to mean that, to make a complaint,
the complainant must specifically ask the recipient to ``initiate'' its
``grievance procedures'' and might think the complainant needs to
reference Sec. 106.45. The Department recognizes that a complainant
may not be familiar with those terms or know what they mean, even
though the complainant may want the recipient to investigate and
determine whether sex discrimination occurred. The Department therefore
has modified the proposed definition of a Title IX ``complaint'' to be
an oral or written communication to the recipient that objectively can
be understood as a request for the recipient to investigate and make a
determination about alleged sex discrimination under Title IX and the
relevant implementing regulations. Accordingly, a complainant need not
use any particular ``magic words''--such as the phrase ``initiate the
recipient's grievance procedures''--in order to trigger a recipient's
obligation to investigate the matter. To be clear, by saying that a
communication constitutes a complaint when it ``objectively'' can be
understood as a request to investigate and make a determination, the
Department means it can be understood as such by a reasonable person.
This is a fact-specific determination, but in general amounts to more
than a student's general questions about grievance procedures.
The Department also declines to require some form of written
documentation of the complaint, short of the formal complaint
requirement, to commence an investigation. The Department notes that
Sec. 106.8(f) of these final regulations includes recordkeeping
obligations such that the recipient will have to maintain (1) for each
complaint of sex discrimination, records documenting the informal
resolution process or the grievance procedures and the resulting
outcome, and (2) for each notification that the Title IX Coordinator
receives of information about conduct that reasonably may constitute
sex discrimination under Title IX or the implementing regulations,
records documenting the actions the recipient took to meet its
obligations under Sec. 106.44. Exactly how to document the information
the recipient receives and the steps the recipient takes in response is
appropriately left up to each recipient.
The Department appreciates the suggestion to specify in the
regulatory text that a recipient is required to facilitate
communication with a complainant using adaptive formats as required to
accommodate their needs, but the Department does not think that such a
change is necessary. The phrase ``oral or written'' is broad enough to
include complaints made using most adaptive communication formats, and
it would be unreasonable for a recipient to refuse to consider a
complaint made, for example, using sign language. Further, if a
complainant has a disability, that individual retains full rights under
Section 504 and the ADA, as applicable.
In addition, the Department declines to change the word ``oral'' to
``verbal.'' The primary definition of ``verbal'' is relating to or
consisting of words, which sometimes is understood as spoken and other
times as written. In contrast, the primary definition of ``oral'' is
uttered by the mouth or in words and is understood to be spoken. See
Verbal, Merriam-Webster Dictionary, <a href="https://www.merriam-webster.com/dictionary/verbal">https://www.merriam-webster.com/dictionary/verbal</a> (last visited Mar. 12, 2024); Oral, Merriam-Webster
Dictionary, <a href="https://www.merriam-webster.com/dictionary/oral">https://www.merriam-webster.com/dictionary/oral</a> (last
visited Mar. 12, 2024). Therefore, the Department believes the term
``oral'' is more consistent with the intended meaning.
Changes: The Department has revised the definition of ``complaint''
in Sec. 106.2 to be an oral or written request to the recipient that
objectively can be understood as a request for the recipient to
investigate and make a determination about alleged discrimination under
Title IX and this part.
General Opposition
Comments: Some commenters opposed allowing oral complaints,
asserting that the proposed definition of ``complaint'' exceeds the
Department's statutory authority and is inconsistent with Title IX and
case law.
Some commenters questioned the integrity of oral complaints,
equated them with hearsay, and asserted that they could lead to
incomplete or incorrect complaints and mishandled investigations. Some
commenters argued that a written accounting of allegations requires a
level of certainty regarding the nature and scope of the allegations,
allows a recipient to make informed preliminary assessments on whether
and how to proceed, and enables a recipient to assess the complainant's
credibility and consistency over time. Some commenters asserted that
the writing and signature requirements under the 2020 amendments should
be retained because they require deliberation and informed action,
including considering the consequences of filing a complaint.
Some commenters asserted that the proposed definition of
``complaint'' would contradict the definition that OCR uses for
enforcement purposes, noting that OCR requires individuals submitting
complaints to OCR to submit a written statement and does not consider
oral allegations that are not reduced to writing to be a complaint.
Discussion: Contrary to commenters' assertions, the definition of
``complaint'' in Sec. 106.2 does not exceed the scope of the
Department's congressionally delegated authority under Title IX. 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.'' 28 U.S.C. 1681(a).
The Supreme Court has recognized that the Department has authority
under
[[Page 33486]]
Title IX to issue regulations that the Department determines will best
effectuate the purpose of Title IX, and to require a recipient to take
administrative action to effectuate the nondiscrimination mandate of
Title IX. See, e.g., Gebser, 524 U.S. at 292. The final regulations,
including the definition of ``complaint'' in Sec. 106.2, govern how a
recipient responds to allegations of sex discrimination in its
education program or activity and were promulgated to effectuate the
purposes of Title IX. They will help recipients fully and fairly
implement Title IX's nondiscrimination mandate in their education
programs or activities.
The Department disagrees with the assertion that the integrity of a
Title IX investigation or complaint depends on whether a recipient
requires the complaint to be in writing. There are a number of
procedural protections built into the grievance procedure requirements
in Sec. 106.45, and if applicable Sec. 106.46, which are designed to
protect the integrity of a recipient's investigation and determination
and to ensure a fair process for all parties, such as the requirements
that a recipient provide the parties with an equal opportunity to
access the evidence or an accurate description of the evidence (and if
the recipient provides a description, the parties may request and then
must receive access to the underlying evidence) and have an impartial
decisionmaker resolve complaints. See 87 FR 41485; Sec.
106.45(f)(4)(i), (b)(2). While a written complaint may help establish
the boundaries of an investigation, it is neither necessary nor
sufficient for doing so, and each recipient is responsible for
following its grievance procedures and taking any additional steps it
deems necessary to ensure its investigation and determination are
sound. In addition, allowing complaints to be made orally is necessary
for a recipient to ensure it is learning of and addressing all sex
discrimination in its education program or activity, so any potentially
increased burden on recipients is justified by the benefits of
fulfilling Title IX's nondiscrimination mandate.
The Department also disagrees with the suggestion that a
complainant will only carefully consider the consequences of making a
complaint if the complaint is written. Some commenters appeared to
assume that if complaints are easier to make, some would be made
hastily, allegedly increasing the risk they are without merit and
therefore unreasonably burdening respondents even if ultimately they
are found to be baseless. But the effectiveness of Title IX is better
advanced if the requirements for making a complaint are not overly
technical or difficult, and if before any disciplinary action is taken,
a recipient has the obligation to investigate the conduct alleged. The
Department has learned from decades of enforcing Title IX that persons
who experience sex discrimination often do not bring complaints for
many reasons, including the difficulty of making a complaint. These
final regulations help reduce this barrier for complainants, and the
Department has no reason to believe that people who make complaints--
orally or in writing--will do so hastily. Therefore, the Department
declines to require that all complaints of sex discrimination be made
in writing.
In addition, the Department acknowledges that Section 101 of OCR's
Case Processing Manual (July 18, 2022) (Case Processing Manual),
<a href="https://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.pdf">https://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.pdf</a>, specifies
that complaints filed with OCR must be in writing. However, there is a
distinction between an administrative complaint asking a Federal
regulatory agency to investigate allegations that a recipient failed to
comply with its obligations and a complaint made to a recipient to
fulfill its obligation in the first instance. A complaint to OCR starts
the administrative process of a Federal agency, with potentially
recipient-wide financial and operational consequences, as compared to
the process of addressing complaints involving individual students or
employees, which may require time-sensitive responses and which
recipients handle every day in a broad range of contexts, including but
not limited to Title IX. In addition, students and employees have an
ongoing institutional relationship with the recipient that they do not
have with OCR.
Changes: None.
Rights of Respondents
Comments: Some commenters opposed allowing oral complaints,
asserting that a written complaint is vital to ensuring a respondent's
rights and should be required to initiate the recipient's grievance
procedures and impose discipline that could take away a respondent's
right to pursue their education.
Other commenters similarly argued that a formal complaint is
essential to upholding respondents' due process rights. They asserted
that only written complaints provide the respondent with notice of the
particulars of the allegations against them as required under proposed
Sec. 106.45(c)(1), and they asserted that oral complaints are often
hard to decipher and leave a recipient unable to provide the respondent
with notice sufficient to respond to the allegations against them.
Discussion: The Department agrees that to ensure a fair resolution
of complaints, a recipient must provide a respondent with notice of the
allegations against them sufficient for them to respond, which is
required under these final regulations. However, the Department
maintains that requiring a formal, written complaint is not essential
to ensuring a respondent receives sufficient notice of the allegations.
Under final Sec. 106.45(c), whether a complaint is made orally or in
writing, the recipient is responsible upon initiation of its grievance
procedures for providing sufficient notice of the allegations to the
parties to allow them to respond to the allegations. And for complaints
of sex-based harassment involving student complainants or student
respondents at postsecondary institutions, written notice is required
by Sec. 106.46(c). As discussed throughout this preamble and in the
July 2022 NPRM, the requirements for grievance procedures under Sec.
106.45 establish the basic elements of a fair process. See, e.g., 87 FR
41461. They also comport with the requirements set out in Goss v.
Lopez, 419 U.S. 565, 579, 581 (1975). See 87 FR 41473 (explaining that
at a minimum, Goss requires a recipient to provide a student facing up
to a 10-day suspension with notice of the allegations against them and
an opportunity to present their account of what happened). For further
explanation of how the final regulations comply with due process and
fundamental fairness requirements, see the discussion of Due Process
Generally (Section II.C).
Changes: None.
Rights of Complainants
Comments: Some commenters opposed removal of a written complaint
requirement because they felt it could create confusion and ambiguity
about when to initiate grievance procedures, leading recipients to act
either prematurely or not promptly enough. Those concerned about
premature action asserted that requiring written complaints supports
complainant autonomy because it gives the complainant the power to
decide whether to proceed, and asserted that by contrast, under the
2020 amendments, there was little chance that an overzealous Title IX
Coordinator would mischaracterize a complainant's intent and respond
prematurely.
[[Page 33487]]
Commenters concerned about a recipient's delayed response said that
the proposed definition of complaint was overbroad and vague, and that
allowing oral complaints might create confusion for students, families,
Title IX Coordinators, and other staff about when to initiate the
grievance procedures. These commenters said that a written complaint
eliminates this confusion by creating a bright-line rule for initiating
an investigation.
Other commenters stated that a written complaint benefits the
complainant because it serves as direct evidence that a complaint was
made and helps the complainant hold a recipient accountable for
properly investigating and resolving allegations of sex discrimination.
Some commenters similarly pointed out that a recipient could choose not
to investigate an oral complaint or could deny that an oral complaint
was ever made, and the complainant would be unable to prove that a
complaint was made due to the lack of a written record. Some commenters
requested that the Department require all recipient employees to be
trained on how to document an oral report, to avoid disputes that may
arise as to whether the complainant really intended to initiate the
grievance procedures. Commenters indicated that a misunderstanding
might harm a complainant when a recipient notifies a respondent of a
complaint that the complainant never intended.
One commenter predicted that the proposed definition of
``complaint'' would require a complainant to watch what they say to the
Title IX Coordinator or any other recipient employee to ensure that
their request for advice or information is not perceived as a
complaint, which would compromise the Title IX Coordinator's intended
role as a trusted source to discuss allegations and supportive measures
before deciding to proceed under the grievance procedures.
Discussion: With respect to complainant autonomy, the Department
agrees with commenters that it is important for a recipient to initiate
the grievance procedures when requested by a complainant, and for a
recipient not to initiate the grievance procedures if a complainant is
not ready or does not want to initiate them, except in the limited
circumstances in which the Title IX Coordinator determines that the
conduct as alleged presents an imminent and serious threat to the
health or safety of a complainant or other person or prevents the
recipient from ensuring equal access based on sex to its education
program or activity under Sec. 106.44(f)(1)(v). However, the
Department does not think that the answer is to require complaints to
be made in writing, particularly given the benefits of the added
flexibility, which many commenters acknowledged will help streamline
the complaint process and better effectuate Title IX by facilitating a
recipient's awareness of, and appropriate response to, sex
discrimination in its education program or activity. In addition, as
the Department noted in the July 2022 NPRM, during the June 2021 Title
IX Public Hearing, as well as in meetings and listening sessions,
several stakeholders stated that the onerous signature and writing
requirements of the 2020 amendments discouraged individuals from making
complaints. 87 FR 41409. Even if the writing and signature requirements
of the 2020 amendments may have reduced the risk of premature or
delayed action on the part of a recipient, the cost was a cumbersome
process that created a barrier for potential complainants to
effectively assert their rights under Title IX. The Department's view,
informed by stakeholder input before the July 2022 NPRM and feedback
from commenters in response, is that additional flexibility is needed
for all complaints of sex discrimination to ensure that a recipient is
aware of, and can respond appropriately to, sex discrimination in its
education program or activity. The Department has carefully weighed the
costs and benefits of including both oral and written requests in the
definition of ``complaint,'' and has determined that the benefits of
including both options justify the costs.
The Department also maintains that the revised definition of
``complaint,'' which incorporates a ``reasonable person'' standard,
will help to mitigate commenters' concerns about the risk of
misunderstanding. As explained earlier, the Department has revised the
definition in the final regulations in response to commenter input and
to ensure clarity. Under the revised definition of ``complaint,''
whether oral or written, if the request can be objectively understood
as a request for the recipient to investigate and make a determination
about alleged sex discrimination under Title IX, then the recipient
must interpret it as a request to initiate the grievance procedures. In
addition, the Department notes that under Sec. 106.44(f)(1)(iii), upon
being notified of conduct that reasonably may constitute sex
discrimination under Title IX, the Title IX Coordinator must notify a
complainant, or the individual who reported the conduct if the
complainant is unknown, of the grievance procedures under Sec. 106.45,
and if applicable Sec. 106.46, and the informal resolution process
under Sec. 106.44(k) if available and appropriate. The Department
anticipates that during such conversations, once the Title IX
Coordinator has explained the grievance procedures, they will confirm
whether the individual reporting the alleged discrimination does in
fact want the recipient to conduct an investigation to make a
determination regarding their allegations. Whether the answer is in the
affirmative or the negative, nothing in the final regulations would
preclude the Title IX Coordinator from memorializing in writing the
outcome of that conversation to help avoid any possible confusion about
agreed upon next steps. And although these regulations do not require a
complaint to be in writing, nothing in these regulations prevents a
complainant from memorializing their oral complaint in writing or
confirming in writing that the recipient received their complaint.
Moreover, as described above, these final regulations at Sec. 106.8(f)
contain specific recordkeeping requirements for each complaint of sex
discrimination and each notification the Title IX Coordinator receives
regarding conduct that reasonably may constitute sex discrimination. In
addition, the required procedural protections of the grievance
procedures and the recordkeeping obligations in Sec. 106.8(f) will
help to ensure that a recipient has sufficient information to initiate
the grievance procedures.
Regarding training for recipient employees on keeping track of oral
allegations, the Department declines to specify any more than what is
required by the final regulations at Sec. 106.8(d). Section
106.8(d)(4) requires that the Title IX Coordinator and any designees be
trained on a number of specific topics and receive any other training
necessary to coordinate the recipient's compliance with Title IX. The
latter is a matter for each recipient's discretion. Section 106.8(d)
strikes the appropriate balance between requiring training on topics
the Department considers necessary to promote a recipient's compliance
with these final regulations, while leaving flexibility for a recipient
to choose the content and substance of any additional training its
employees may need.
The Department does not share the commenter's concern that allowing
oral complaints will compromise a Title IX Coordinator's ability to
discuss allegations and supportive measures. The Title IX Coordinator
is responsible for coordinating the recipient's
[[Page 33488]]
compliance with its Title IX obligations, including by providing
information to a complainant about the grievance procedures, and
offering and coordinating supportive measures. The Title IX
Coordinator's role is not to serve as a confidential advisor to the
complainant or any other party. It is appropriate for a potential
complainant to carefully explain to a Title IX Coordinator what they
are alleging, and for the Title IX Coordinator to carefully confirm
both what is being alleged and whether the complainant intends to
initiate the grievance procedures.
With respect to other recipient employees, the Department notes
that the final regulations require employees who are not confidential
employees to notify the Title IX Coordinator of any information they
have about conduct that reasonably may constitute sex discrimination
under Title IX, or, as applicable, to provide a potential complainant
with contact information for the Title IX Coordinator and information
about how to report sex discrimination under Title IX. See Sec.
106.44(c). Therefore, a potential complainant who wants confidential
support has the discretion to seek out a confidential employee, if
provided by the recipient. Even if the information a potential
complainant provides to a non-confidential employee is reported to the
Title IX Coordinator, it will only prompt a complaint without the
complainant's permission if the Title IX Coordinator determines, after
considering at a minimum the factors in Sec. 106.44(f)(1)(v), that the
conduct as alleged presents an imminent and serious threat to the
health or safety of the potential complainant or other person or
prevents the recipient from ensuring equal access based on sex to its
education program or activity. The question of whether a conversation
with a recipient employee who is not the Title IX Coordinator will
constitute a ``request to the recipient'' is addressed in the
discussions of Sec. 106.44(a) and (c).
Changes: As noted earlier in this section, the final regulations at
Sec. 106.2 define ``complaint'' as an oral or written request to the
recipient that objectively can be understood as a request to
investigate and make a determination about alleged discrimination under
Title IX and this part.
Effect on Recipients
Comments: Some commenters suggested that the proposed regulations
should require neither ``oral'' nor ``written'' complaints and instead
should give a recipient discretion as to the format of complaints it
will accept under its own policies, which may include written
confirmation from the complainant that they intend to proceed with
grievance procedures. One commenter said that it was unclear whether
the proposed regulations would require a recipient to accept an oral
complaint or whether a recipient can require a written complaint.
Some commenters asserted that the investigation of ``informal''
complaints is expensive and takes time away from classroom instruction,
and that, for example, these costs outweigh the value of giving women
equal education opportunity. One commenter asserted that the proposed
definition would unreasonably increase the number of complaints and
impede the ability of a recipient to address allegations expeditiously.
A group of commenters posited that the proposed definition of
``complaint'' could increase litigation risks for recipients. For
example, they said if a complainant talks to a professor about
misconduct they experienced and the professor fails to notify the Title
IX Coordinator or document that the conversation occurred, and the
complainant says they made a complaint but the respondent says there is
no evidence of a complaint, the recipient could face legal challenges
from both parties. Some commenters explained that complaints should
have to be written and signed as protection for the recipient, saying,
for example, that a formal signed complaint requirement can provide
cover to a recipient when a complainant did not clearly request
initiation of the grievance procedures and later alleged that their
oral report should have been treated as a complaint.
One commenter asked the Department to confirm that under Sec.
106.47, OCR will not deem a recipient to have violated Title IX solely
because it would have reached a different determination under Sec.
106.45, including the recipient's determination whether allegations
constitute a ``complaint'' under Sec. 106.2.
One commenter asserted that it is unclear what would trigger the
initiation of the grievance procedures and that a recipient may have
thousands of employees and a decentralized organizational structure,
such that they encourage or authorize employees to respond partially or
fully to perceived sex discrimination in the moment. The commenter
recommended that the Department take a practical approach regarding
what constitutes a complaint to preserve flexibility and allow
significant discretion.
Discussion: The Department appreciates the variety of perspectives
shared by commenters and has carefully considered the possible effects
on recipients of allowing complaints to be made orally or in writing.
The Department does not think it is appropriate to grant recipients the
discretion to deny a complaint because it was not submitted in writing.
The goal of the revised definition of ``complaint'' is to provide added
flexibility to the complaint process for complainants, a revision the
Department adopted in response to concerns from stakeholders and
commenters that the formal complaint requirements of the 2020
amendments were overly prescriptive, including the requirement that a
complaint be in the form of a signed document, allowed recipients to
disregard complaints based on technicalities, and discouraged
complaints, contrary to the purpose and intent of Title IX.
In addition, the Department does not agree with the contention that
the costs of investigating ``informal'' complaints outweigh the
benefits of the final regulations, including the value of providing
equal educational opportunities for all individuals based on sex, or
with the assertion that removing the formal complaint requirement will
lead to an unreasonable increase in the number of complaints and a
delay in addressing the allegations expeditiously. Under Title IX, a
recipient is obligated to evaluate conduct that reasonably may
constitute discrimination on the basis of sex and ensure redress if it
occurs because Congress required the provision of equal opportunity to
anyone who wants to participate in a federally funded education program
or activity. While it is likely that the overall number of sex
discrimination complaints will increase somewhat once complaints no
longer have to be in writing and signed, any increased burden will not
be unreasonable for a number of reasons.
First, encouraging reporting and facilitating complaints of sex
discrimination is a critical part of a recipient's duty to effectuate
Title IX's nondiscrimination mandate. As a condition of receiving
Federal funds, a recipient agrees to operate its education program or
activity free from sex discrimination; doing so requires knowing about
possible discrimination and investigating it to determine the need for
remedy, if any. Second, a recipient already has an obligation to
address sex discrimination in its education program or activity, even
without a formal complaint, see Sec. 106.31, and under the 2020
amendments a recipient with actual knowledge of possible sexual
[[Page 33489]]
harassment (which can come from oral reports) is required to offer
supportive measures to a complainant, with or without a formal
complaint, see 34 CFR 106.44(a). Third, even if there are more
complaints overall, increased flexibility in the grievance procedures
provided by Sec. 106.45, and if applicable Sec. 106.46, will help
ensure that burdens on recipients are not unreasonable. For more
information regarding the changes to the grievance procedures
requirements, see the discussion of Framework for Grievance Procedures
for Complaints of Sex Discrimination (Section II.C) and discussion of
the Grievance Procedures for the Prompt and Equitable Resolution of
Complaints of Sex Discrimination (Section II.D). Fourth, allowing some
flexibility regarding how to make a complaint does not mean that people
who have not experienced sex-based harassment or other sex
discrimination will make complaints; rather, it means that those who
believe they have experienced sex-based discrimination have an
additional option to report it. The Department is not aware of evidence
to suggest that oral complaints are more likely to be unmeritorious or
even frivolous. If everyone who experienced sex discrimination did make
a complaint, that would likely make it easier for recipients to redress
that discrimination and prevent its recurrence. After careful
consideration, the Department has decided that the benefit of improving
flexibility regarding how individuals may make a complaint justifies
the possibility that the number of complaints may increase. A more
detailed discussion and analysis of the costs and benefits of these
final regulations is included in the Regulatory Impact Analysis.
The Department acknowledges recipients' concerns that oral
complaints will lead to increased litigation, but these concerns are
speculative and the risk of increased litigation, if any, is justified
because, as explained in greater detail above, mandating that
complaints be made in writing discourages individuals from making
complaints, in contravention of the purpose of Title IX to eliminate
all discrimination on the basis of sex in any education program or
activity receiving Federal financial assistance. 20 U.S.C. 1681(a); 34
CFR 106.1. While it might be helpful for employees other than the Title
IX Coordinator, such as professors, to keep careful notes or commit
oral allegations to writing, the Department declines to require that
they do so or to mandate that all employees receive specific training
on recordkeeping as explained more fully in the discussion of Sec.
106.8(d). These final regulations at Sec. 106.8(f) already contain
specific recordkeeping requirements for each complaint of sex
discrimination and each notification the Title IX Coordinator receives
of information about conduct that reasonably may constitute sex
discrimination.
The Department wishes to clarify that Sec. 106.47 applies only to
determinations regarding whether sex-based harassment occurred under
Sec. 106.45, and if applicable Sec. 106.46. It provides that the
Assistant Secretary will not deem a recipient to have violated the
regulations solely because the Assistant Secretary would have made a
different determination than the recipient did under Sec. 106.45, and
if applicable Sec. 106.46, based on an independent weighing of the
evidence in a particular complaint alleging sex-based harassment. The
Department maintains the position taken in the 2020 amendments that the
intent of Sec. 106.47 (then numbered Sec. 106.44(b)(2)) is to convey
that OCR will not substitute its judgment for the judgment of the
recipient's decisionmaker regarding the weighing of relevant and not
otherwise impermissible evidence in a particular case. See 85 FR 30221.
However, nothing in Sec. 106.47 prevents OCR from holding a recipient
accountable for noncompliance with any provision of the final
regulations, including its determination whether a complainant's
communication with the recipient constitutes a complaint under the
definition in Sec. 106.2.
Finally, a recipient would only be required to initiate grievance
procedures consistent with Sec. 106.45 when a written or oral report
meets the standards for a ``complaint'' in Sec. 106.2. Thus, while the
Department understands commenters' concern that Sec. 106.45 might
impede the ability of employees to address conduct in a timely manner
or exercise judgment, the Department has determined that the structure
of the grievance procedures under the final regulations provides a
workable framework that addresses those concerns and allows a recipient
to develop and implement a process for prompt and equitable response.
Changes: None.
4. Section 106.2 Definition of ``Disciplinary Sanctions''
Comments: Several commenters suggested modifications to the
definition of ``disciplinary sanctions.'' One commenter asked the
Department to modify the definition to clarify that it is not intended
to prevent a recipient from considering a respondent's cumulative
conduct history when imposing sanctions. Another commenter requested
that the Department remove the term ``disciplinary'' and use only
``sanctions'' because ``disciplinary sanctions'' suggests sanctions are
limited to students and employees and may be misunderstood to exclude
third parties. One commenter requested that the Department clarify
whether there are specific requirements for disciplinary sanctions that
apply to elementary schools and secondary schools.
Discussion: The Department appreciates commenters' suggestions
regarding modifications to the definition of ``disciplinary
sanctions.'' The definition of ``disciplinary sanctions'' clarifies
that a disciplinary sanction is a consequence imposed on a respondent
only after a determination that the respondent has violated the
recipient's prohibition on sex discrimination. It does not specify what
consequences a recipient can or must impose on a respondent or what
factors to consider when determining what disciplinary sanction to
impose. As the Department explained in the 2020 amendments, the
Department has determined that administrative enforcement of Title IX
does not require overriding a recipient's discretion to make decisions
regarding disciplinary sanctions or prescribing how a recipient should
determine a disciplinary sanction. See 85 FR 30274. The definition of
``disciplinary sanctions'' focuses on ensuring that respondents are not
disciplined for engaging in sex discrimination unless a fair process
has determined responsibility, while respecting a recipient's
discretion to make disciplinary decisions under their own policies and
codes of conduct. For these reasons, the Department declines to modify
the definition of ``disciplinary sanctions'' to state that it is not
intended to prevent a recipient from considering a respondent's
cumulative conduct history when imposing sanctions.
The Department also declines to remove the term ``disciplinary''
from ``disciplinary sanctions.'' The regulations use ``disciplinary
sanctions'' because of the disciplinary nature of the action taken by
the recipient, and the Department has determined that this phrase is
more specific and accurate than the word ``sanctions.'' The definition
of ``respondent'' in these final regulations, and the related
discussion of the definition of ``respondent'' in the July 2022 NPRM,
make clear that any person, including third parties, may be considered
a respondent subject to disciplinary sanctions. 87 FR 41420. For more
information, see the discussion in the preamble to the 2020 amendments,
85 FR 30488. A recent Federal appellate
[[Page 33490]]
decision in Hall v. Millersville University supports the Department's
position that a ``respondent'' may include a third party. 22 F.4th 397,
405-06 (3d Cir. 2022) (finding that the university could be liable
under Title IX for its deliberate indifference to a non-student's
conduct).
Finally, the Department's definition of ``disciplinary sanctions''
applies to all recipients, including elementary schools and secondary
schools, and does not set forth specific requirements for disciplinary
sanctions at any level. The process for imposing disciplinary
sanctions--for all recipients--is set forth in more detail in Sec.
106.45(h). The Department appreciates the opportunity to clarify that
``disciplinary sanctions'' refers to consequences imposed on a
respondent following a determination under Title IX that the respondent
violated the recipient's prohibition on sex discrimination. Nothing in
these regulations addresses conduct that does not reasonably constitute
sex discrimination. For this reason, the Department has added ``under
Title IX'' to the definition of ``disciplinary sanctions'' in the final
regulations. These regulations also do not preclude routine classroom
management or the application of separate codes of conduct, including
to conduct that has been determined through grievance procedures not to
be sex discrimination or to conduct that would be prohibited regardless
of whether sex discrimination occurred. See, e.g., 85 FR 30182.
Changes: The Department has added ``under Title IX'' to the
definition of ``disciplinary sanctions.''
5. Section 106.2 Definitions of ``Elementary School'' and ``Secondary
School''
Comments: Commenters generally supported the proposed definitions
of ``elementary school'' and ``secondary school'' and said the
definitions would clarify Title IX's coverage and aid in consistent and
effective enforcement of Title IX.
Discussion: The Department acknowledges commenters' support for the
proposed definitions of ``elementary school'' and ``secondary school.''
Changes: None.
6. Section 106.2 Definition of ``Postsecondary Institution''
Comments: Some commenters generally supported the proposed
definition of ``postsecondary institution'' and said it would aid in
consistent and effective enforcement of Title IX.
Other commenters, without specifying how or providing additional
details, stated that they believed the proposed definition contained
unnecessary details and was an attempt to micromanage and create an
extrajudicial system.
One commenter asked the Department to clarify whether the term
``postsecondary institution'' means that the proposed regulations do
not apply to elementary schools and secondary schools.
Discussion: The Department acknowledges commenters' support for the
definition of ``postsecondary institution.''
The Department disagrees with the commenters' view that the
definition is too detailed. The Department's revisions help streamline
and simplify the definition. As explained in the July 2022 NPRM, the
Department proposed to remove the specific references to Sec. Sec.
106.44 and 106.45 from the definition of ``postsecondary institution''
because the definition applies to all of part 106. See 87 FR 41400. As
explained, the Department also made necessary revisions to clarify that
the definition includes an institution of vocational education that
serves postsecondary students because an institution of vocational
education could serve either secondary school students or postsecondary
students. See id.
The commenters did not specify how the definition of
``postsecondary institution'' would micromanage or create an
extrajudicial system, but in any event, the definition is limited to
explaining what constitutes a postsecondary institution and is intended
to provide clarity for recipients. The Department also cannot conceive
how these definitions would micromanage or create an extrajudicial
system.
Finally, the Department clarifies that the final regulations apply
to all recipients of Federal financial assistance, including elementary
schools and secondary schools. Because there are certain provisions of
the final regulations that explicitly only apply to postsecondary
institutions (e.g., Sec. 106.46), however, the Department maintains
the definition of ``postsecondary institution'' provides necessary
clarification for recipients.
Changes: None.
7. Section 106.2 Definition of Prohibited ``Sex-Based Harassment''
General Support and Opposition
Comments: Commenters provided a variety of reasons for supporting
the proposed definition of ``sex-based harassment,'' including that it
aligns with congressional intent and ensures that Federal funds are not
used to support discrimination; it encourages students to report sex-
based harassment; and it is consistent with the Department's
longstanding enforcement practice. These commenters also stated that
the 2020 amendments narrowed the definition of ``sexual harassment,''
making it more difficult for potential complainants to assert their
rights.
One commenter asserted that the Department's rulemaking authority
does not extend to the proposed definition of ``sex-based harassment,''
claiming that Gebser grants the Department the authority to issue only
``prophylactic rules,'' not to define discrimination.
Some commenters asserted the Department failed to justify the need
to revise the definition, having previously stated that it wanted to
provide recipients with consistency and simplicity in the definition of
``sexual harassment'' under Title IX.
Another commenter asked the Department to clarify that sex
discrimination refers to any discrimination based on sex, whereas sex-
based harassment is a subset of sex discrimination. Some commenters
asked how the definition of ``sex-based harassment'' would apply in
specific situations, such as to elementary school students, who often
do not have the maturity or comprehension to understand what the term
means, and to postsecondary institution employers in a State where
there are specific requirements for workplace harassment.
Discussion: As explained further below, the Department is adopting
a final definition that modifies the proposed definition in certain
respects but retains the core elements of the proposed definition. The
Department maintains that the final definition of ``sex-based
harassment'' better fulfills Title IX's prohibition on sex
discrimination in education programs or activities that receive Federal
financial assistance, is consistent with relevant judicial precedent,
accounts for the legitimate interests of recipients and parties, and
aligns with congressional intent and the Department's longstanding
interpretation of Title IX and resulting enforcement practice prior to
the 2020 amendments.
The Department agrees with the commenter that Gebser is relevant
for considering the distinctions between administrative enforcement and
civil damages actions, but disagrees with the commenter's
characterization of Gebser as precluding the Department from including
a definition of ``sex-based harassment'' in regulations implementing
Title IX. The definition of ``sex-based harassment'' establishes
standards the Department and recipients
[[Page 33491]]
use to implement and enforce Title IX effectively, which, as explained
in the discussions of Sec. Sec. 106.44 and 106.45(a)(1), the
Department is statutorily authorized and directed to accomplish.
Contrary to the commenter's characterization, the Gebser Court
wrote: ``Agencies generally have authority to promulgate and enforce
requirements that effectuate the statute's nondiscrimination mandate,
20 U.S.C. 1682, even if those requirements do not purport to represent
a definition of discrimination under the statute.'' 524 U.S. at 292.
Nothing in this statement precludes the Department from setting out a
definition of ``sex-based harassment'' in the exercise of this
statutory authority. We observe, moreover, that a definition of
``sexual harassment'' has been part of the Title IX regulations since
2020. The Department did not propose in the July 2022 NPRM, nor does
the Department undertake now, to regulate conduct that does not
constitute sex discrimination. The final regulations simply define
``sex-based harassment,'' which is a form of sex discrimination. The
commenter's view would appear to disallow the definition of ``sex-based
harassment'' in the final regulations or any other definition.
Consistent with Title IX's text and the Department's authority to
implement the statute, as well as OCR's enforcement experience and case
law interpreting the statute, the Department is providing greater
clarity for recipients about steps they must take to ensure that no
person is subjected to sex discrimination in their education programs
and activities. Providing a clear definition of ``sex-based
harassment'' in the final regulations will help recipients better
identify discriminatory conduct when it occurs, and will help them
better understand their obligations to address sex discrimination under
the statute.
The Department has adequately justified the need for a revised
definition. As explained in the July 2022 NPRM, the Department
identified the need for a new definition of ``sex-based harassment''
based on an extensive review of the 2020 amendments, in addition to
live and written comments received during the June 2021 Title IX Public
Hearing, numerous listening sessions and meetings with stakeholders
conducted by the Office for Civil Rights in 2021 and 2022, and the 2022
meetings held under Executive Order 12866. See 87 FR 41390, 41392. The
Department heard significant feedback from students, parents,
recipients, advocates, and other concerned stakeholders that the 2020
amendments do not adequately clarify or specify the scope of sex
discrimination prohibited by Title IX, and that the current definition
of ``sexual harassment'' does not fully implement Title IX's mandate.
See 87 FR 41392, 41396. The updated definition in the final regulations
is intended to address those identified and well-documented gaps.
The Department clarifies that sex discrimination refers to any
discrimination based on sex, including, but not limited to, sex-based
harassment, and has modified the proposed definition of ``sex-based
harassment'' to clearly state that sex-based harassment is a form of
sex discrimination.
With respect to the comments regarding specific applications of the
definition of ``sex-based harassment'' in elementary school settings or
in specific States, the Department notes that the definition of ``sex-
based harassment'' in the final regulations applies to all recipients
and that, as stated in Sec. 106.6(b), the obligation to comply with
Title IX is not obviated or alleviated by any State or local law or
other requirement that conflicts with Title IX or this part. That said,
the Department maintains that State workplace harassment laws can
generally be applied in ways that do not create conflicts. The
Department also notes that Title IX's prohibition on sex discrimination
applies to all recipients and in all States. The final regulations take
into account differences in the age and maturity of students in various
educational settings, allowing recipients to adapt the regulations as
appropriate to fulfill their Title IX obligations. The Department will
take into account these types of differences and recipient flexibility
on a case-by-case basis when addressing any complaints and applying the
definition of ``sex-based harassment.''
Changes: The Department has revised the definition of ``sex-based
harassment'' to state explicitly that sex-based harassment is a form of
sex discrimination.
Data Related to Sex-Based Harassment
Comments: Some commenters referred the Department to data and other
information showing the prevalence of sex-based harassment in
postsecondary institutions and elementary schools and secondary
schools. For example, some commenters referenced data that they said
showed the prevalence of sex-based harassment among specific
populations, including Asian American and Native Hawaiian/Pacific
Islander women; LGBTQI+ students; Black women and girls; and students
with disabilities. One commenter noted that individuals may experience
multiple overlapping forms of discrimination, including sex-based
harassment. Some commenters referred the Department to data and other
information that they said showed sex-based harassment is underreported
and why. Some commenters referred the Department to data and other
information that they said showed the negative impact that sex-based
harassment has on education, including causing survivors to drop out of
school, miss class and extracurricular activities, suffer increased
absences, experience decreases in GPA, lose scholarships or financial
aid, have lower self-esteem, and suffer higher levels of depression and
suicidality.
Discussion: The Department acknowledges the data and information
referred to by commenters with regard to the prevalence of sex-based
harassment of students and employees in postsecondary institutions and
in elementary schools and secondary schools. The final regulations hold
a recipient accountable for responding to sex-based harassment,
including quid pro quo harassment, hostile environment harassment,
sexual assault, dating violence, domestic violence, and stalking,
consistent with Title IX's broad prohibition on sex discrimination.
Further, the Department acknowledges the data and information
referred to by commenters regarding the impact of sex-based harassment
on specific populations in significant numbers. The final regulations
hold recipients accountable for responding to sex-based harassment for
all populations consistent with Title IX's broad prohibition on sex
discrimination. The Department agrees with commenters' observation that
individuals may experience multiple and overlapping forms of
discrimination. Congress has chosen to address different forms of
discrimination through different statutes, and these final regulations
implement only Title IX's prohibition on discrimination on the basis of
sex. In addition to their obligations under Title IX, recipients have
an obligation not to discriminate on numerous other grounds under the
civil rights laws enforced by OCR,\4\ as well as under Federal civil
rights laws enforced by the U.S. Department of Justice and other
[[Page 33492]]
Federal agencies. The Department believes that an improved response to
incidents of sex-based harassment benefits individuals whose experience
of sex-based harassment overlaps with other forms of discrimination.
---------------------------------------------------------------------------
\4\ For example, in addition to Title IX, OCR also enforces
Title VI, Section 504, Title II of the ADA, the Age Discrimination
Act of 1975, and the Boy Scouts of America Equal Access Act.
---------------------------------------------------------------------------
The Department shares the commenters' concerns that sex-based
harassment is underreported. Title IX requires a recipient to operate
its education program or activity in a manner that is free from sex
discrimination, and, for the reasons described elsewhere in this
preamble, the definition of ``sex-based harassment'' in the final
regulations, among other changes, will remove certain barriers to
reporting. Because sex-based harassment causes serious harm to those
impacted, as several commenters discussed, the final regulations
clarify that a recipient must respond to all forms of harassment on the
basis of sex in a manner consistent with Title IX's broad prohibition
on sex discrimination in education programs or activities that receive
Federal financial assistance. See, e.g., Sec. Sec. 106.2 (definition
of ``sex-based harassment''), 106.44 (required response to sex
discrimination), 106.45 (grievance procedures for the prompt and
equitable resolution of sex discrimination).
Changes: None.
Sex-Based Harassment--Burden and Cost (Sec. 106.2)
Comments: Some commenters were concerned that the proposed
definition of hostile environment sex-based harassment, as compared to
the 2020 amendments, would require a recipient to address more
complaints through its Title IX grievance procedures and lead to more
lawsuits, which would impose a greater burden and more expenses on a
recipient and take time and resources away from more serious claims.
One of these commenters also noted that, especially at smaller
postsecondary institutions, this would detract from efforts to address
sexual assault and quid pro quo harassment, which the commenter felt
should be the priority under Title IX. One commenter expressed concern
about the impact the definition of ``sex-based harassment'' would have
on Title IX Coordinators, which together with other provisions in the
proposed regulations, the commenter asserted, would require Title IX
Coordinators to monitor and police potentially offensive conduct,
including speech.
Discussion: In the July 2022 NPRM, the Department acknowledged that
recipients would be required to address more complaints under these
final regulations and projected a 10 percent increase in complaint
investigations compared to the number conducted under the 2020
amendments. 87 FR 41550. As explained in the Regulatory Impact
Analysis, commenters did not provide data necessitating a change to the
Department's 10 percent estimate. The Department maintains that the
definition of ``sex-based harassment'' will more fully implement
Congress's nondiscrimination requirement in Title IX. The Department
considered several alternatives to the final definition of ``sex-based
harassment,'' including maintaining the definition of ``sexual
harassment'' from the 2020 amendments and different wording options for
the definition of hostile environment sex-based harassment, but
concluded that none captured the benefits of this final definition and
state of the law. The Department also considers and explains the impact
of the final regulations on small entities, including small recipients,
in the discussion of the Regulatory Flexibility Act. There the
Department acknowledges commenters' concerns that the final
regulations, including the definition of ``sex-based harassment,''
likely will increase the number of Title IX cases and investigations
that small entities will be required to address. Similar to the
projection in the Regulatory Impact Analysis, the Department projects a
10 percent increase in complaints for small entities. The Department
disagrees with commenters who forecast a significantly greater increase
and the commenters provided no data in support of their assertion.
The Department also disagrees with the commenters' assertion that
several provisions in the final regulations, including the definition
of ``sex-based harassment,'' would mean that Title IX Coordinators must
monitor and limit any conduct in the form of speech that could be
considered potentially offensive--even if that speech is
constitutionally protected. The Title IX Coordinator requirements in
Sec. 106.44(f) do not impose an obligation on a recipient's Title IX
Coordinator to respond to any conduct or speech other than that which
reasonably may constitute sex discrimination. Further, as discussed
elsewhere in this preamble, the final regulations do not alter Sec.
106.6(d), which states that nothing in the Title IX regulations
requires a recipient to restrict any rights that would otherwise be
protected from government action by the U.S. Constitution, including
the First Amendment. We also underscore that none of the amendments to
the regulations changes or is intended to change the commitment of the
Department, through these regulations and OCR's administrative
enforcement, to fulfill the Department's obligations in a manner that
is fully consistent with the First Amendment and other guarantees of
the U.S. Constitution. For additional discussion of the First
Amendment, see the Hostile Environment Sex-Based Harassment--First
Amendment Considerations section below.
For all recipients, to the extent the Department's projected 10
percent increase in complaints and related increase in use of a
recipient's grievance procedures results from the change in the
definition of ``sex-based harassment,'' the Department determined that
the related costs from such an increase are justified by the benefits
of ensuring effective implementation of a recipient's statutory
obligation that its education program or activity be free from sex
discrimination. The Department also notes that other changes in the
regulations, such as affording recipients the discretion to use a
single-investigator model and removing the requirement to hold a live
hearing in all cases, see, e.g., Sec. Sec. 106.45(b)(2) and
106.46(f)(1), provide recipients, including small entities, with
greater flexibility in conducting their grievance procedures, as some
commenters have also recognized. The Department's view, therefore, is
that evaluating the final regulations' changes as a whole is important
for accurately assessing the extent to which, if at all, the final
regulations will increase costs or burdens for recipients.
Finally, the Department disagrees with commenters' assertions that
the increase in complaints of sex-based harassment will detract from
recipients' efforts to address sexual assault and quid pro quo
harassment, which some commenters stated should be prioritized under
Title IX. The Department believes that the additional flexibility for
recipients provided in the final regulations, including with respect to
the grievance procedure requirements, will allow recipients to address
all types of conduct covered under the definition of ``sex-based
harassment.''
Changes: None.
Sex-Based Harassment--Introductory Text and Scope (Sec. 106.2)
Comments: Some commenters supported the proposed definition of
``sex-based harassment'' because its coverage of harassment based on
sex stereotypes, sex characteristics, pregnancy or related conditions,
sexual orientation, and gender identity would
[[Page 33493]]
better align with State laws and recipient codes of conduct and
eliminate confusion. Commenters stated that such harassment is no less
harmful than other forms of sex-based harassment.
Some commenters suggested the Department remove the reference to
Sec. 106.10 in the introductory text to the definition of ``sex-based
harassment'' and instead specify all of the bases identified in Sec.
106.10 to avoid confusion. One commenter asked the Department to
clarify whether the three categories of harassment (i.e., quid pro quo,
hostile environment, and specific offenses) were intended to modify
only ``other conduct on the basis of sex'' or instead to modify
``sexual harassment, harassment on the bases described in Sec. 106.10,
and other conduct on the basis of sex.'' One commenter suggested that
the Department remove the reference to ``sexual harassment'' in the
introductory sentence of the proposed definition of ``sex-based
harassment'' or clarify what additional forms of sexual harassment
would not be covered by the three categories in the proposed
definition. Another commenter asked what the term ``harassment'' means
and whether it includes nonverbal, verbal, or written actions.
One commenter expressed concern that the proposed definition of
``sex-based harassment'' would cover speech or conduct that was not
based on sex and asserted that if harassment does not occur because of
a person's sex, it is not sex-based harassment under Title IX,
regardless of how offensive it is.
Several commenters posed specific examples of conduct and asked
whether they would constitute sex-based harassment under the proposed
definition.
Discussion: The Department appreciates the range of opinions
expressed regarding the introductory text and scope of sex-based
harassment. The Department believes that these final regulations best
comport with the text of Title IX, the case law interpreting Title IX,
and Title IX's nondiscrimination mandate.
The Department agrees with the commenter who asserted that conduct
that falls within the definition of ``sex-based harassment'' must be
based on sex. Adhering to the statutory language, the definition
clearly states that the conduct prohibited must be ``on the basis of
sex,'' and includes sexual harassment and harassment on the bases
described in Sec. 106.10. As recognized in the preamble to the 2020
amendments, ``on the basis of sex'' does not require that the conduct
be sexual in nature. See 85 FR 30146. The Department appreciates
commenters' suggestions but declines to remove the reference to Sec.
106.10 in the definition of ``sex-based harassment,'' as the reference
refers clearly to the scope of discrimination on the basis of sex and
thus is not likely to cause confusion.
As discussed in the July 2022 NPRM, Title IX's broad prohibition on
sex discrimination encompasses, at a minimum, discrimination against an
individual based on sex stereotypes, sex characteristics, pregnancy or
related conditions, sexual orientation, and gender identity. See 87 FR
41531-32. All of these classifications depend, at least in part, on
consideration of a person's sex. See id. The final regulations clarify
the scope of harassment covered and add language to the regulatory text
that was in the preamble to the 2020 amendments.
In response to comments about ``other conduct on the basis of
sex,'' some language regarding other harassment is necessary to
maintain consistency with Sec. 106.10, which--by using the word
``includes''--indicates that there could be other kinds of sex
discrimination besides the specific bases listed. To alleviate
confusion, the Department has changed ``other conduct on the basis of
sex'' to ``other harassment on the basis of sex'' and moved the
language earlier in the introductory sentence to tie it more directly
to Sec. 106.10. The Department clarifies that the three categories of
harassment in Sec. 106.2 of the final regulations modify ``sexual
harassment and other harassment on the basis of sex, including on the
bases described in Sec. 106.10,'' such that to constitute prohibited
sex-based harassment, the sexual harassment or harassment on the bases
described in Sec. 106.10 must satisfy one or more of the three
categories (i.e., quid pro quo, hostile environment, or specific
offenses). The Department's position is that it is not necessary to
further define the term harassment because the definition of ``sex-
based harassment,'' including the three categories of harassment, is
sufficiently clear. The Department confirms that, as discussed in the
July 2022 NPRM, acts of verbal, nonverbal, or physical aggression,
intimidation, or hostility based on sex are within the purview of Title
IX and may constitute sex-based harassment provided they meet the
requirements of the definition. See 87 FR 41411, 41533. The Department
has held this view for more than two decades. See 85 FR 30034-36,
30179; U.S. Dep't of Educ., Office for Civil Rights, Sexual Harassment
Guidance: Harassment of Students by School Employees, Other Students,
or Third Parties, 62 FR 12034, 12038-39 (Mar. 13, 1997) (revised in
2001) (1997 Sexual Harassment Guidance), <a href="https://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf">https://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf</a>. The Department also notes that as
discussed in the section below on Hostile Environment Sex-Based
Harassment--Online Harassment (Sec. 106.2), this covered conduct could
occur online, in addition to in person.
The Department declines to remove the reference to ``sexual
harassment'' in the introductory sentence because it is useful to
explicitly state in the definition of ``sex-based harassment'' that it
includes not only (1) sexual harassment, which is conduct of a sexual
nature, but also (2) other forms of harassment that are not or may not
be ``sexual'' but that are nonetheless based on sex, such as harassment
based on pregnancy, gender identity, or sex stereotypes. The term
``sexual harassment'' as used in the definition refers to conduct that
constitutes quid pro quo harassment, hostile environment harassment, or
a specific offense listed in the definition of ``sex-based
harassment.'' As explained in prior OCR guidance, sexual harassment can
include unwelcome sexual advances, requests for sexual favors, and
other verbal, nonverbal, or physical conduct of a sexual nature. See,
e.g., 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, 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="https://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf">https://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf</a>. Other forms of harassment that are not or
may not be ``sexual'' can also constitute hostile environment
harassment. With respect to the hypothetical sex-based harassment
scenarios presented by commenters, the Department declines to make
definitive statements about examples, due to the necessarily fact-
specific nature of the analysis. At the same time, we note that further
explanation of the content of the final regulations is provided in the
discussions below.
The Department disagrees that the definition of ``sex-based
harassment'' in the final regulations covers speech or conduct that is
not based on sex. To the extent the comments raise concerns under the
First Amendment, those comments are addressed in the section below
dedicated to Hostile Environment Sex-Based Harassment--First Amendment
Considerations (Sec. 106.2).
Changes: The Department has revised the definition of ``sex-based
[[Page 33494]]
harassment'' to state that sex-based harassment is a form of sex
discrimination. The Department has also changed ``other conduct on the
basis of sex'' to ``other harassment on the basis of sex'' and moved
the language to earlier in the introductory sentence. The introductory
language in the definition now states that sex-based harassment
prohibited by this part ``means sexual harassment and other harassment
on the basis of sex, including on the bases described in Sec.
106.10.''
Sex-Based Harassment--Vagueness and Overbreadth (Sec. 106.2)
Comments: Some commenters opposed the proposed definition of ``sex-
based harassment'' because they felt it would be too expansive and
overbroad or too vague, which they believed could lead to false
allegations. These commenters noted that the definition must clearly
define the scope of prohibited conduct.
Other commenters specifically expressed vagueness and overbreadth
concerns in the context of hostile environment sex-based harassment.
For example, some commenters were concerned that key terms were
undefined, which the commenters said would cause postsecondary
institutions to restrict protected speech. The commenters did not state
what key terms should be defined. Other commenters were concerned that
the totality of the circumstances analysis in hostile environment sex-
based harassment would make it difficult for students and employees to
know what conduct was covered and could lead to overly broad policies.
One commenter asserted that precise definitions are required in the
postsecondary education setting, even if they would not be required in
a workplace setting, because of academic freedom. Another commenter
argued that, although the July 2022 NPRM stated that 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, the preamble is vague
about where the Department would draw the line between speech protected
under the First Amendment and hostile environment sex-based harassment
under Title IX, and thus a recipient would be incentivized to treat
speech that is close to the line as a Title IX violation.
One commenter suggested that OCR's previously issued guidance on
Title IX and sexual harassment was too broad.\5\ Another commenter
asserted that some individuals may not know what conduct is prohibited
if they are only told that objectively and subjectively offensive
conduct is prohibited. Some commenters said the subjective standard's
vagueness would deny respondents due process and lead to meritless
investigations and inconsistent enforcement across recipients. Some
commenters said that the term ``limits'' is vague and overly broad.
---------------------------------------------------------------------------
\5\ The commenter cited, for example, U.S. Dep't of Educ.,
Office for Civil Rights, Sexual Harassment: It's Not Academic, at 3-
4 (2008), <a href="https://www2.ed.gov/about/offices/list/ocr/docs/ocrshpam.pdf">https://www2.ed.gov/about/offices/list/ocr/docs/ocrshpam.pdf</a>.
---------------------------------------------------------------------------
Discussion: The Department disagrees that the definition of ``sex-
based harassment'' is too expansive and overbroad or too vague and does
not clearly define the scope of prohibited conduct. Title IX broadly
prohibits sex discrimination, and it is well-settled that harassment is
a form of discrimination. See, e.g., Davis v. Monroe Cnty. Bd. of
Educ., 526 U.S. 629, 649-50 (1999) (citing Gebser, 524 U.S. at 281;
Franklin v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 74-75 (1992)).
While the definition differs from the standard courts apply to damages
claims in private litigation, for decades prior to the 2020 amendments
the Department applied a similar definition in administrative
enforcement efforts to give complete effect to Title IX. See, e.g.,
2001 Revised Sexual Harassment Guidance. The definition also closely
tracks longstanding case law defining sexual harassment, which courts
have had no difficulty interpreting. See, e.g., Harris v. Forklift
Sys., Inc., 510 U.S. 17 (1993). With respect to comments regarding the
purported vagueness of the definition and the lack of clearly defined
conduct, the Department notes that the Eighth Circuit recently
considered a ``void for vagueness'' challenge to a university sexual
harassment policy with a similar definition: the policy prohibited
conduct that ``create[d] a hostile environment by being sufficiently
severe or pervasive and objectively offensive that it interfere[d]
with, limit[ed] or denie[d] the ability of an individual to participate
in or benefit from educational programs or activities.'' Rowles v.
Curators of Univ. of Mo., 983 F.3d 345, 352 (8th Cir. 2020) (quoting
the policy). The Eighth Circuit rejected the plaintiff's vagueness
challenge, explaining that the policy ``provide[d] adequate notice of
what conduct is prohibited'' and used language with ``common usage and
understanding.'' Id. at 356, 358. The court specifically noted that
qualifiers such as ``objective''--similar to the requirement in the
final definition that conduct creating a hostile environment be
``objectively offensive,'' see Sec. 106.2--``provide adequate notice
in [the] context'' of university harassment policies. Rowles, 983 F.3d
at 356; see also Koeppel v. Romano, 252 F. Supp. 3d 1310, 1327 (M.D.
Fla. 2017) (``inclusion of the objective and subjective standard'' in
harassment policy made it sufficiently clear that ``a person of
ordinary intelligence [could understand] what conduct [was]
prohibited''), aff'd sub nom. Doe v. Valencia Coll., 903 F.3d 1220
(11th Cir. 2018); Vanderhurst v. Colo. Mountain Coll. Dist., 16 F.
Supp. 2d 1297, 1305-06 (D. Colo. 1998) (harassment policy's use of
terms like ``considered offensive by others'' and ``unwanted sexually
oriented conversation'' allowed ``ordinary people [to] understand what
conduct [was] prohibited''). The case law thus supports the
Department's view that the final definition is not inappropriately
vague and clearly defines the scope of prohibited conduct.
The Department similarly disagrees with commenters who asserted
that the proposed definition of hostile environment sex-based
harassment is overbroad or vague. The Department notes that commenters
did not specify which terms they wanted the Department to define but
did state that it was unclear how a recipient would draw the line
between speech protected under the First Amendment and sex-based
harassment, and how to analyze offensiveness. As explained in the
discussion below of Hostile Environment Sex-Based Harassment--First
Amendment Considerations (Sec. 106.2), the Department has carefully
defined hostile environment sex-based harassment with the First
Amendment in mind by requiring that it be unwelcome, sex-based, and
subjectively and objectively offensive, as well as so severe or
pervasive that the conduct results in a limitation or denial of a
person's ability to participate in or benefit from the recipient's
education program or activity. The definition is aimed at
discriminatory conduct--conduct that is unwelcome as well as sex-based,
and that has an impact far greater than being bothersome or merely
offensive. Moreover, even when a rule aimed at offensive conduct sweeps
in speech, the rule does not necessarily become vague or overbroad. For
example, as noted above in Rowles, the court rejected plaintiff's claim
that the
[[Page 33495]]
policy at issue, which targeted offensive conduct, was ``void for
vagueness'' as applied to his ``protected `amorous speech.' '' 983 F.3d
at 357-58. The court reached a similar conclusion with respect to
overbreadth. Although the policy at issue had been applied to the
plaintiff's speech, it did not target speech as such; rather it
``prohibit[ed] conduct'' that was ``defined and narrowed using language
with common usage and understanding.'' Id. at 358. The plaintiff thus
failed to establish that the policy had ``a real and substantial effect
on protected speech.'' Id.\6\ Rowles accordingly supports the
conclusion that policies that define hostile environment sex-based
harassment similar to the definition of hostile environment sex-based
harassment in these final regulations do not violate the First
Amendment merely because they may, in some circumstances, be applied to
speech.
---------------------------------------------------------------------------
\6\ The court reached this conclusion even though the policy was
broader than the standard for private actions for money damages for
student-to-student sexual harassment that the Supreme Court
articulated in Davis, 526 U.S. 629. See Rowles, 983 F.3d at 352
(policy covered ``severe or pervasive'' conduct that ``interfere[d]
with, limit[ed] or denie[d]'' ability to participate). Indeed,
despite this difference, the court cited Davis as support for the
proposition that the policy was sufficiently narrow to withstand
constitutional challenge. Id. at 358-59. The case thus supports the
Department's view--described in more detail below--that the
definition of sex-based harassment in the final regulations need not
match the standard for private damages actions articulated in Davis.
---------------------------------------------------------------------------
Other case law also supports this conclusion. For example, several
commenters cited DeJohn v. Temple University, 537 F.3d 301 (3d Cir.
2008), for the proposition that the definition of hostile environment
sex-based harassment in the proposed regulations would be too broad or
vague. And to be sure, the court in DeJohn did conclude that the
University's specific policy was overbroad. Id. at 320. Yet the court
also explained that, had the policy's application to conduct been
appropriately narrowed, it could have survived First Amendment
scrutiny. The court explained that ``[a]bsent any requirement akin to a
showing of severity or pervasiveness--that is, a requirement that the
conduct objectively and subjectively creates a hostile environment or
substantially interferes with an individual's work--the policy provides
no shelter for core protected speech.'' Id. at 317-18. Likewise,
``unless harassment is qualified with a standard akin to a severe or
pervasive requirement, a harassment policy may suppress core protected
speech.'' Id. at 320. The Department's definition of hostile
environment sex-based harassment adopts exactly the guardrails that
DeJohn suggested are necessary--it applies only to conduct that, among
other things, is ``objectively and subjectively'' offensive and is
``severe or pervasive.'' And indeed, courts applying DeJohn have
specifically concluded that the inclusion of such guardrails narrows a
harassment policy sufficiently to withstand overbreadth and vagueness
challenges. See Koeppel, 252 F. Supp. 3d at 1326 (``[The policy's]
limiting language is precisely the type of language that the Third
Circuit suggested would `provide shelter for core protected speech.'
Because Valencia's policy provides language that sufficiently shelters
protected speech, the Court finds that the policy is not
unconstitutionally overbroad.'' (citation omitted)); id. at 1327
(``Based on the inclusion of the objective and subjective standard, the
Court finds that Valencia's sexual harassment policy sufficiently
explains to a person of ordinary intelligence what conduct is
prohibited.''); Marshall v. Ohio Univ., No. 2:15-CV-775, 2015 WL
1179955, at *6 (S.D. Ohio Mar. 13, 2015) (distinguishing DeJohn and
rejecting vagueness and overbreadth challenges to a policy that
``require[d] an individual's actions to be objectively and subjectively
severe or pervasive so as to cause, or be intended to cause, an
intimidating, hostile, or offensive work, academic, or living
environment''). For additional discussion of the First Amendment, see
the section below on Hostile Environment Sex-Based Harassment--First
Amendment Considerations (Sec. 106.2).
With respect to false allegations, the Department takes this
concern seriously. Importantly, the final regulations incorporate
safeguards against false allegations. For example, the final
regulations require that a recipient evaluate complaints of sex-based
harassment based on all relevant not otherwise impermissible evidence,
see Sec. 106.45(b)(6) and (7), require a recipient to provide each
party with an equal opportunity to access the evidence that is relevant
to the allegations of sex discrimination and not otherwise
impermissible, or an accurate description of the evidence (and if the
recipient provides a description, the parties may request and then must
receive access to the underlying evidence), see Sec. 106.45(f)(4), and
require a recipient to provide a process to question parties and
witnesses to assess the party's or witness's credibility when
credibility is in dispute and relevant to evaluating one or more
allegations of sex discrimination, see Sec. 106.45(g). The grievance
procedures also provide steps to mitigate the harm a falsely accused
respondent may experience while participating in the grievance
procedures, such as requiring reasonable steps to protect the privacy
of the parties and witnesses during the pendency of a recipient's
grievance procedures. See Sec. 106.45(b)(5). Finally, nothing in the
final regulations prohibits a recipient from disciplining individuals
who make false statements, provided that the discipline is not imposed
based solely on the recipient's determination whether sex
discrimination occurred. See Sec. 106.45(h)(5).
In response to a commenter's suggestion that OCR's previously
issued guidance on Title IX and sexual conduct was too broad, we note
that although the definition of hostile environment sex-based
harassment aligns more closely with the longstanding interpretation of
Title IX in OCR's prior guidance, these final regulations, including
the definition of hostile environment sex-based harassment, do not
simply track the language in OCR's prior guidance. For example, the
definition of hostile environment sex-based harassment in the final
regulations is more specific because it explicitly requires that the
unwelcome sex-based conduct be subjectively and objectively offensive
and so severe or pervasive that it limits or denies a person's ability
to participate in or benefit from the recipient's education program or
activity, and it enumerates the factors that a recipient must, at a
minimum, consider in determining whether a hostile environment has been
created. Prior guidance, although similar, did not so clearly lay out
specific factors to be considered. See, e.g., 1997 Sexual Harassment
Guidance, 2001 Revised Sexual Harassment Guidance. In addition, as
discussed below in Hostile Environment Sex-Based Harassment--First
Amendment Considerations (Sec. 106.2), although the First Amendment
may in certain circumstances constrain the manner in which a recipient
responds to discriminatory harassment in the form of speech, recipients
have ample other means at their disposal to remedy a hostile
environment, and recipients remain free under the final regulations to
determine whether discipline is the appropriate response to sex-based
harassment, and if so, what form that discipline should take.
The Department disagrees that the definition of hostile environment
sex-based harassment is too vague to provide adequate notice of
prohibited conduct for certain individuals. The
[[Page 33496]]
subjective and objective standards have long been used by courts, as
discussed in the section below on Hostile Environment Sex-based
Harassment--Subjectively and Objectively Offensive (Sec. 106.2), and
by OCR in enforcing the civil rights laws. See 2001 Revised Sexual
Harassment Guidance, at 5; U.S. Dep't of Educ., Office for Civil
Rights, Notice of Investigative Guidance, Racial Incidents and
Harassment Against Students at Educational Institutions, 59 FR 11448,
11449 (Mar. 10, 1994) (1994 Racial Harassment Guidance), <a href="https://www.govinfo.gov/content/pkg/FR-1994-03-10/pdf/FR-1994-03-10.pdf">https://www.govinfo.gov/content/pkg/FR-1994-03-10/pdf/FR-1994-03-10.pdf</a> (also
available at <a href="https://www2.ed.gov/about/offices/list/ocr/docs/race394.html">https://www2.ed.gov/about/offices/list/ocr/docs/race394.html</a>). Title IX protects all persons and recipients have an
obligation to conduct their grievance procedures free from
discrimination and bias. The final regulations also include provisions
to ensure a recipient complies with its obligations under Title IX,
Title VI, Section 504, the ADA, and the IDEA. See, e.g., Sec. Sec.
106.8(e), 106.44(g)(6)(i).
Changes: None.
Quid Pro Quo Sex-Based Harassment (Sec. 106.2)
Comments: Some commenters supported the proposed definition of quid
pro quo sex-based harassment because it would return to the
Department's longstanding enforcement practice that predated the 2020
amendments and include employees and other persons authorized by the
recipient to provide an aid, benefit, or service, such as teaching
assistants or volunteer coaches, and would include both explicit and
implicit conditioning of an aid, benefit, or service on sexual conduct.
One commenter urged the Department to remove ``unwelcome'' from the
proposed definition of quid pro quo sex-based harassment, stating that
the definition should cover all situations when an education aid,
benefit, or service is conditioned on sexual conduct without needing to
determine whether or not the sexual conduct was unwelcome.
Other commenters asked the Department to clarify who is an ``other
person authorized by the recipient'' in the definition of quid pro quo
sex-based harassment. One commenter said that student leaders of clubs
and captains of sports teams should be included as potential authorized
persons. Another commenter queried whether the Department intended to
limit ``aid, benefit, or service'' to academics. Another commenter
asked the Department to clarify whether board members or other persons
involved in the recipient's governance or similar activities are
``authorized'' by the recipient to provide an aid, benefit, or service,
regardless of whether they are paid.
One commenter urged the Department to clarify that agents and
employees can engage in quid pro quo sex-based harassment regardless of
whether they are actually authorized by the recipient to provide an
aid, benefit, or service as part of the recipient's education program
or activity. Another commenter recommended the Department clarify that
a threat of detriment is covered by the proposed definition of quid pro
quo sex-based harassment regardless of whether the threat is carried
out.
Discussion: The Department acknowledges the commenters' support of
the definition of quid pro quo sex-based harassment, which covers any
employee, 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 also acknowledges the commenter's support for
the inclusion of both explicit and implied conditioning of such aid,
benefit, or service on a person's participation in sexual conduct, and
confirms that implied conditioning is covered by the definition of quid
pro quo sex-based harassment.
The Department appreciates the commenter's suggestion to remove
``unwelcome'' from the proposed definition of quid pro quo sex-based
harassment but declines to do so because the unwelcomeness of conduct
is a well-established component of harassment law. See, e.g., Doe v.
Mercy Catholic Med. Ctr., 850 F.3d 545, 565 (3d Cir. 2017) (stating
that ``unwelcome sexual advances, requests for sexual favors, or other
verbal or physical actions of a sexual nature constitute quid pro quo
harassment'' if certain conditions are met); Koeppel, 252 F. Supp. 3d
at 1326, 1327 n.3 (policy prohibiting certain ``unwelcome'' advances
was neither vague nor overbroad); cf. 29 CFR 1604.11(a) (Title VII
regulations prohibiting certain ``[u]nwelcome sexual advances''). The
Department notes that quid pro quo sex-based harassment involves an
abuse of authority that is generally unwelcome. Additionally, as
explained in the July 2022 NPRM, acquiescence to the conduct or the
failure to complain, resist, or object to the conduct does not mean
that the conduct was welcome, and the fact that a person may have
accepted the conduct does not mean they welcome it. See 87 FR 41411-12.
The Department acknowledges the commenters' requests for
clarification regarding who is an ``other person authorized by the
recipient'' in the definition of quid pro quo sex-based harassment. The
Department declines to list student leaders or students generally as
potential authorized persons in the definition of quid pro quo sex-
based harassment because students are the intended beneficiaries of
aid, benefits, or services of the recipient's education program or
activity. If a student did ever occupy a position as some ``other
person authorized by the recipient to provide an aid, benefit, or
service,'' then the student would fall under the definition as it is in
these final regulations. The Department clarifies here that the example
of quid pro quo harassment provided in the July 2022 NPRM, of a
graduate student who conditioned a student's grade on sexual conduct,
was not intended to limit coverage of such harassment to an academic
aid, benefit, or service. See 87 FR 41412. Title IX covers all aspects
of the recipient's education program or activity, including
extracurricular activities. Moreover, quid pro quo sex-based harassment
covers harassment by members of a recipient's leadership, including
board members, paid or unpaid, to the extent those individuals are
authorized by the recipient to provide an aid, benefit, or service
under the recipient's education program or activity.
The Department also clarifies that quid pro quo sex-based
harassment can include situations in which an employee, agent, or other
person authorized by the recipient purports to provide and condition an
aid, benefit, or service under the recipient's education program or
activity on a person's participation in unwelcome sexual conduct, even
if that person is unable to provide that aid, benefit, or service. In
addition, the threat of a detriment falls within the definition of quid
pro quo sex-based harassment, whether or not the threat is actually
carried out because a threat to, for example, award a poor grade unless
a person participates in unwelcome sexual conduct, is a condition
placed on the provision of the student's education, which is a service
of the recipient.
Changes: None.
Hostile Environment Sex-Based Harassment--General (Sec. 106.2)
Comments: A number of commenters supported the proposed definition
of hostile environment sex-based harassment because it would align with
definitions of sexual and other forms of harassment in other Federal
and State civil rights laws, including Title VII. The commenters
believed this would
[[Page 33497]]
reduce confusion and provide consistency for students and employees.
Some commenters supported the proposed definition of hostile
environment sex-based harassment because it would empower survivors to
seek supportive measures and report sex-based harassment, reduce the
stigma around reporting and seeking assistance, and provide greater
clarity to students and administrators. Some commenters stated that, by
contrast, the definition of ``sexual harassment'' in the 2020
amendments has deterred complainants from reporting sexual harassment
because it sets a high standard that is viewed as difficult to meet.\7\
---------------------------------------------------------------------------
\7\ The commenters cited Heather Hollingsworth, Campus Sex
Assault Rules Fall Short, Prompting Overhaul Call Associated Press,
June 16, 2022, <a href="https://apnews.com/article/politics-sports-donald-trump-education-5ae8d4c03863cf98072e810c5de37048">https://apnews.com/article/politics-sports-donald-trump-education-5ae8d4c03863cf98072e810c5de37048</a> (the University of
Michigan reported that their number of Title IX complaints dropped
from over 1,300 in 2019 to 56 in 2021 and Title IX complaints at the
University of Nevada, Las Vegas dropped from 204 in 2019 to 12 in
2021 and the number of cases that met the criteria for formal
investigation fell from 27 to 0).
---------------------------------------------------------------------------
One commenter asked the Department to explain why the proposed
definition of hostile environment sex-based harassment is consistent
with the statutory authority granted to the Department under Title IX
and should be granted deference.
Discussion: The Department agrees that the definition of ``sexual
harassment'' in the 2020 amendments failed to fully effectuate Title
IX's prohibition on sex discrimination. The Department believes the
final definition will allow the Department to more fully enforce Title
IX's nondiscrimination mandate because the definition covers a range of
sex-based misconduct consistent with Title IX's broad language, will
better align with the definitions of harassment in other civil rights
laws, and will reduce confusion.
The Department also disagrees with the commenters'
characterizations of OCR's prior guidance and underscores that prior
guidance made clear OCR's commitment to interpreting Title IX
consistent with the First Amendment. ``OCR has consistently maintained
that the statutes that it enforces are intended to protect students
from invidious discrimination, not to regulate the content of speech.''
U.S. Dep't of Educ., Office for Civil Rights, First Amendment Dear
Colleague Letter (July 28, 2003) (2003 First Amendment Dear Colleague
Letter), <a href="https://www2.ed.gov/about/offices/list/ocr/firstamend.html">https://www2.ed.gov/about/offices/list/ocr/firstamend.html</a>;
see also 2001 Revised Sexual Harassment Guidance, at 22-23; 2014 Q&A on
Sexual Violence, at 43-44. As discussed more fully in the July 2022
NPRM, nothing in the Title IX regulations requires a recipient to
restrict any rights otherwise protected by the First Amendment, and OCR
has expressed this view repeatedly in prior guidance. See 87 FR 41415.
For additional discussion of the First Amendment, see the below
discussion of Hostile Environment Sex-Based Harassment--First Amendment
Considerations (Sec. 106.2).
With respect to the Department's authority to adopt a definition of
hostile environment sex-based harassment, we refer to our extensive
explanation in the July 2022 NPRM. 87 FR 41393-94, 41410, 41413-14. The
Department further notes that Congress empowered and directed the
Department, and other Federal agencies, to issue regulations that
effectuate Title IX. 20 U.S.C. 1682. The Department also observes that
when Congress enacted Title IX in 1972, it imposed a broad prohibition
on discrimination based on sex in education programs and activities
that receive Federal financial assistance and since then has declined
on multiple occasions to limit the scope of Title IX.\8\ Title IX's
plain language prohibits any discrimination on the basis of sex in a
recipient's education program or activity and the Department maintains
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. 5803-58 (1972) (statement
of Sen. Bayh); see also N. Haven Bd. of Educ. v. Bell, 456 U.S. 512,
521 (1982) (``There is no doubt that `if we are to give [Title IX] the
scope that its origins dictate, we must accord it a sweep as broad as
its language.' '').
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\8\ For example, Congress passed the Civil Rights Restoration
Act in 1987, 20 U.S.C. 1687, to clarify the definition of ``program
or activity'' in Title IX, and Congress has also rejected multiple
amendments to exempt revenue producing sports from Title IX.
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We further discuss the Department's authority to define ``sex-based
harassment'' in the below section on Hostile Environment Sex-Based
Harassment--the Davis standard.
Changes: None.
Hostile Environment Sex-Based Harassment--the Davis Standard (Sec.
106.2)
Background: In Davis, the Supreme Court held that a private action
under Title IX for money damages against a school for student-to-
student harassment will lie only if the harassment is ``so severe,
pervasive, and objectively offensive that it effectively bars the
victim's access to an educational opportunity or benefit.'' 526 U.S. at
633. For purposes of this subsection, the Department refers to the
requirement that harassment be so ``severe, pervasive, and objectively
offensive'' that it effectively bars access to an educational
opportunity or benefit as the ``Davis standard.''
Comments: A group of commenters supported the Department's proposed
definition of hostile environment sex-based harassment as compatible
with Davis. Citing Gebser, 524 U.S. at 286-87, 292, these commenters
further noted that the Supreme Court has recognized the Department's
regulatory authority to implement Title IX's nondiscrimination mandate,
even if the resulting regulations do not use the same legal standards
that give rise to a claim for money damages in private actions.
Some commenters opposed the proposed definition of hostile
environment sex-based harassment because it deviates from the Davis
standard. Some commenters stated that the Department failed to
specifically address either how the proposed definition of hostile
environment sex-based harassment is consistent with Davis or adequately
explain why the Department departed from the Davis standard. In
addition, a group of commenters argued that the Department should not
depart from the Davis standard because the Supreme Court held that
Title IX covers misconduct by recipients, not teachers or students. As
well, this group of commenters stated that courts have used the Davis
standard to award (or evaluate) injunctive relief, not merely damages,
in private party suits.
One commenter stated that OCR has previously rejected the idea that
a different definition for harassment applies in private lawsuits for
monetary damages as compared to OCR's administrative enforcement in the
2001 Revised Sexual Harassment Guidance.
One commenter argued that requiring a recipient to apply the Title
VII workplace standard to students in administrative enforcement of
Title IX would burden the recipient, create conflicts between Title
IX's application in the courts compared to the administrative context,
and lead to unpredictable applications of the law. Some commenters
urged the Department to maintain the definition of ``sexual
harassment'' in the 2020 amendments, including the reference to
unwelcome conduct that is both severe and pervasive.
Other commenters stated that the proposed regulations would allow a
recipient to benefit from the Davis standard if it was sued for
monetary damages under Title IX but would
[[Page 33498]]
subject individual students and employees to what they asserted is a
lower standard. The commenters further asserted that the potential loss
of Federal funding in the context of administrative enforcement would
put more pressure on administrators to punish student expression than
the threat of losing a lawsuit. Additionally, a group of commenters
asserted that, in light of the differences in ages of the students and
the purposes of education across institutions, and because it would be
reasonable for a school to refrain from disciplinary action that school
officials believe would violate the Constitution, a recipient should
have flexibility to make its own disciplinary decisions.
One commenter maintained that the Davis standard adequately
protects survivors of student-to-student harassment and stated that
plaintiffs have successfully used the Davis standard to hold a
recipient liable for its deliberate indifference to student-to-student
harassment.
Discussion: The Department appreciates the range of opinions
regarding the consistency of the proposed regulations with the Supreme
Court's decision in Davis. After reviewing applicable law, the public
comments received, and the Department's experience enforcing Title IX
with regard to harassment, the Department agrees with commenters who
supported the Department's proposed definition of hostile environment
sex-based harassment. The final definition of hostile environment sex-
based harassment is consistent with the Davis standard because, like
the Davis standard, the definition requires a contextual consideration
of the totality of the circumstances to determine whether harassment
impacted a complainant's or plaintiff's educational benefits, and only
accounts for conduct that is so serious that it implicates a person's
access to the recipient's education program or activity. Also, as
discussed in the section below on Hostile Environment Sex-Based
Harassment--Subjectively and Objectively Offensive (Sec. 106.2), the
Department added the word ``offensive,'' which also appears in the
Davis standard, to the final definition. The Department's final
definition is not identical to Davis, however, because the Department
also believes a broader standard is appropriate to enforce Title IX's
prohibition on sex discrimination in the administrative context, in
which educational access is the goal and private damages are not at
issue. To that end, the final regulations require that harassing
conduct be ``subjectively and objectively offensive'' and ``severe or
pervasive,'' rather than the Davis standard's ``severe, pervasive, and
objectively offensive.'' As described further below, the final
definition follows the text of Title IX, falls well within the
Department's authority to implement the statute, squares with the
Department's enforcement experience, and is compatible with Davis as
well as other relevant precedent.
The Department disagrees with commenters that the Department's
regulatory definition of hostile environment sex-based harassment must
be identical to the Davis standard. The Court in Davis did not set
forth any definition of hostile environment sex-based harassment--it
articulated the circumstances under which sexual harassment is
sufficiently serious to create institutional liability for private
damages when a recipient is deliberately indifferent to it. 526 U.S. at
639 (examining ``whether a district's failure to respond to student-on-
student harassment in its schools can support a private suit for money
damages''). Indeed, the Davis Court specifically indicated that the
question of whether student-to-student harassment could be
``discrimination'' for purposes of Title IX was not the issue in the
case. The Court explained that the defendants did not ``support an
argument that student-on-student harassment cannot rise to the level of
`discrimination' for purposes of Title IX,'' and contrasted that
question with the issue in the case, which concerned the standard for
damages liability under Title IX for such harassment. Id. Moreover, the
Davis Court explicitly stated that it was addressing the relevant scope
of discrimination ``in the context of a private damages action'' when
articulating that in such contexts, the sexual harassment must be
``severe, pervasive, and objectively offensive.'' Id. at 649-50.
Similarly, the Gebser Court was especially concerned about the
possibility of requiring a school to pay money damages for harassment
that exceeded its level of Federal funding, not about the scope of
prohibited harassment generally. See 524 U.S. at 289-90 (discussing
Title IX's administrative enforcement proceedings including the
opportunity for a recipient to take corrective measures, and observing,
in part, that ``an award of damages in a particular case might well
exceed a recipient's level of federal funding''). The Supreme Court has
noted that the words of an opinion must be evaluated in a ``particular
context,'' and readers must determine the ``particular work'' those
words do. Nat'l Pork Producers Council v. Ross, 598 U.S. 356, 374
(2023). So, although the Court in Davis used the phrase ``severe,
pervasive, and objectively offensive,'' the opinion as a whole makes
clear that the Court was describing only the standards applicable to
the ``particular context'' of a private action for damages--not the
standard applicable to administrative enforcement. The standard adopted
by the Court was intended, in part, to do the ``particular work'' of
imposing a high bar specifically for private damages claims. Davis, 526
U.S. at 652-53.
The Gebser Court 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. Davis itself emphasizes the point about the
Department's authority to issue rules for administrative enforcement.
After observing that Congress ``entrusted'' Federal agencies to
``promulgate rules, regulations, and orders to enforce the objectives''
of Title IX, Davis, 526 U.S. at 638, the Court repeatedly and
approvingly cited the Department's then-recently published guidance
regarding sexual harassment, see id. at 647-48, 651 (citing 1997 Sexual
Harassment Guidance, 62 FR 12039-42). That guidance specifically stated
that schools could be found to violate Title IX if the relevant
harassment ``was sufficiently severe, persistent, or pervasive to
create a hostile environment.'' 62 FR 12040. The guidance thus
articulated a broader standard for prohibited harassment than the
standard the Court articulated in Davis for purposes of private damages
liability. And rather than calling into question the validity of that
guidance, the Court in Davis relied on it. The Court in Davis also
cited approvingly the Department's racial harassment guidance
interpreting Title VI, see Davis, 526 U.S. at 648-49 (citing 1994
Racial Harassment Guidance, 59 FR 11449), which, like the Department's
1997 Sexual Harassment Guidance and 2001 Revised Sexual Harassment
Guidance, explained that a hostile environment may exist if the
relevant harassment was ``severe, pervasive or persistent.'' 59 FR
11449. Davis thus implicitly acknowledges the different standards that
may govern private claims as compared to administrative enforcement. In
addition, the Department is not aware of any court that restricted the
Department from applying the prior longstanding definition of hostile
environment sexual
[[Page 33499]]
harassment in the administrative enforcement context. The Department
thus disagrees with the claim that the definition of hostile
environment sex-based harassment in the final regulations must be
identical to the Davis standard--particularly given that the
Department's definition was developed to ensure that a recipient
operates its education program or activity in a manner that is fully
consistent with Title IX, and the Davis standard was developed with
attention to the challenges associated with imposing money damages on a
school district in a private civil action related to student-to-student
conduct.\9\
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\9\ See Davis, 526 U.S. at 639 (describing the Court's focus on
the specific issue of damages in private civil actions); 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)); Gebser, 524 U.S. at
292 (recognizing the distinction between administrative enforcement
and civil liability).
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Gebser and Davis thus align with the Department's long-held view
that its administrative enforcement standard need not be identical to
the standard for monetary damages in private litigation. The Department
made its view clear in the July 2022 NPRM and elsewhere in this
preamble. See 87 FR 41413-14. In the preamble to the 2020 amendments,
the Department similarly stated that it has regulatory authority to
select conditions and a liability standard different from those used in
Davis because the Department has authority to issue regulations that
require recipients to take administrative actions to effectuate Title
IX's nondiscrimination mandate.\10\ 85 FR 30033. The Department also
noted that the definition of ``sexual harassment'' in the 2020
amendments did ``not simply codify the Gebser/Davis framework'' and
instead it ``reasonably expand[ed] the definition[ ] of sexual
harassment'' to tailor it to the administrative enforcement context.
Id. The Department also reiterated in the preamble to the 2020
amendments that the Court in Davis did not opine as to what the
appropriate definition of sexual harassment must or should be for the
Department's administrative enforcement. Id.
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\10\ Although the Department's administrative enforcement
proceedings differ in many ways from private lawsuits for money
damages, the Department does not mean to suggest that
administratively imposed remedial actions can never have financial
consequences. See 85 FR 30414-15 (``Remedial action required of a
recipient for violating Title IX or these final regulations may
therefore include any action consistent with 20 U.S.C. 1682, and may
include equitable and injunctive actions as well as financial
compensation to victims of discrimination or regulatory violations,
as necessary under the specific facts of a case.'').
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The Department acknowledges that some courts have applied the Davis
standard when deciding whether to grant injunctive relief in addition
to damages, but that does not change the fact that the Davis standard
was developed in the context of determining whether a school district's
failure to respond to student-to-student harassment makes the school
district liable for monetary damages and that the Department is not
bound by that standard in the administrative enforcement context. The
cases cited by commenters do not establish that the final regulations
exceed the boundaries of Title IX and the Department's authority to
effectuate the statute. Davis, Gebser, and the reasoning offered in
this preamble are more persuasive grounds for determining the content
of the final regulations. Indeed, courts have recently confirmed that
the Department may use Davis and Gebser as the ``appropriate starting
point for administrative enforcement of Title IX,'' and then ``adapt[ ]
. . . that framework to hold recipients responsible for more than what
the Gebser/Davis framework alone would require.'' Victim Rts. L. Ctr.
v. Cardona, 552 F. Supp. 3d 104, 129-30 (D. Mass. 2021) (quotation
marks omitted) (emphasis added); accord New York v. U.S. Dep't of
Educ., 477 F. Supp. 3d 279, 297 (S.D.N.Y. 2020) (holding that it was
reasonable for the Department to conclude it ``was not required to
adopt the definition of sexual harassment in the Gebser/Davis
framework''). Consistent with that judicial guidance, the Department's
definition of hostile environment harassment covers more than that
described in Davis alone.
The Department disagrees with commenters who maintained that
distinctive standards for money damages and administrative enforcement
will be unduly burdensome, confusing, or otherwise improper given the
2020 amendments or other Department statements. The Davis standard has
been in place for Title IX civil actions seeking monetary damages since
1999--well over twenty years--but the Department has never adopted that
precise standard for the Department's Title IX administrative
enforcement actions. The Department is not aware of any persuasive
evidence that recipients were unable to understand the difference
between the administrative enforcement and civil damages contexts
during the period prior to or since the 2020 amendments. Nor has OCR's
experience in enforcing Title IX during that period provided a basis to
conclude that any differences between the administrative enforcement
and civil damages contexts were barriers to effective implementation of
Title IX's nondiscrimination requirement, or that the Department's
approach to enforcement infringed on protected speech rights. It is
OCR's experience that when recipients' responses to sex-based
harassment fail to comply with Title IX, such failure is not because
the recipient is unable to understand the differences between the
administrative enforcement and civil damages contexts, but rather
because the recipient failed to respond promptly and effectively to
known sex-based harassment.
The Department also appreciates the commenters' concern that a
recipient might impose a sanction on a student or employee for
violating its policy against sex discrimination, while the recipient
might not be held liable for money damages in a private civil action if
it did not impose such a sanction. But the Department is not convinced
the commenters identified a logical inconsistency between discipline
for those who engage in harassment and the absence of damages against a
recipient for responding to such harassment. A recipient must take
action to address sex-based harassment, which may include taking
disciplinary action against a respondent, regardless of whether the
complainant may be entitled to monetary damages due to the recipient's
deliberately indifferent response. That a rec
[…truncated; see source link]Indexed from Federal Register on April 29, 2024.
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