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Rule2026-19929

Recodification of Title IX Rules

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Published

September 29, 2026

Effective

September 29, 2026

Issuing agencies

Education Department

Abstract

The Secretary of Education publishes a final rule to repeal the U.S. Department of Education's (Department) 2024 final rule amending the Title IX regulations and restoring the regulatory text that existed prior to the 2024 rulemaking. The Department takes this action because the 2024 final rule has been vacated and is not enforceable nationwide. The Department has not enforced the 2024 final rule for over a year and a half; the regulatory text that existed before promulgation of the 2024 final rule, which is in force, should be recodified in the Code of Federal Regulations (CFR). For this reason, the Department repeals the 2024 final rule to update the CFR.

Full Text

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<title>Federal Register, Volume 91 Issue 187 (Tuesday, September 29, 2026)</title>
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[Federal Register Volume 91, Number 187 (Tuesday, September 29, 2026)]
[Rules and Regulations]
[Pages 61308-61323]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-19929]

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DEPARTMENT OF EDUCATION

34 CFR Part 106

RIN 1870-AA26

Recodification of Title IX Rules

AGENCY: Office for Civil Rights, Department of Education.

ACTION: Final rule.

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SUMMARY: The Secretary of Education publishes a final rule to repeal
the U.S. Department of Education's (Department) 2024 final rule
amending the Title IX regulations and restoring the regulatory text
that existed prior to the 2024 rulemaking. The Department takes this
action because the 2024 final rule has been vacated and is not
enforceable nationwide. The Department has not enforced the 2024 final
rule for over a year and a half; the regulatory text that existed
before promulgation of the 2024 final rule, which is in force, should
be recodified in the Code of Federal Regulations (CFR). For this
reason, the Department repeals the 2024 final rule to update the CFR.

DATES: This final rule is effective on September 29, 2026.

FOR FURTHER INFORMATION CONTACT: Maria Litsakis, Acting Director,
Program Legal Group, Office for Civil Rights, 400 Maryland Ave. SW, 5th
Floor, Washington, DC 20202. Telephone: 800-421-3481. Email:
<a href="/cdn-cgi/l/email-protection#89e4e8fbe0e8a7e5e0fdfae8e2e0fac9eceda7eee6ff"><span class="__cf_email__" data-cfemail="b8d5d9cad1d996d4d1cccbd9d3d1cbf8dddc96dfd7ce">[email&#160;protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Executive Summary

The Department takes this final action to repeal the Department's
2024 final rule, Nondiscrimination on the Basis of Sex in Education
Programs or Activities Receiving Federal Financial Assistance, 89 FR
33474-33896 (Apr. 29, 2024) (2024 Rule), and to restore the regulatory
text that existed prior to promulgation of the 2024 Rule. As explained
further below, enforcement of the 2024 Rule was preliminarily enjoined
by eight different courts between June 13, 2024, and August 22, 2024,
and vacated in full in final appealable orders in two different courts
on January 9, 2025, and February 19, 2025.\1\ On January 31, 2025, the
Department announced it would enforce the regulations that existed
prior to the promulgation of the 2024 Rule,\2\ and, in fact, has not
enforced the 2024 Rule in over a year and a half. With this final rule,
the regulations currently in force--those that existed prior to the
promulgation of the 2024 Rule--will be returned to the CFR to provide
clarity and transparency, allowing recipients of Federal financial
assistance, students, and parents to know what rules apply by simply
reading the CFR.
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\1\ See below for a fuller discussion, including citations.
\2\ The January 31, 2025, announcement was later superseded by
guidance dated February 4, 2025. Craig Trainor, Acting Assistant
Secretary for Civil Rights, Dear Colleague Letter (Feb. 4, 2025),
<a href="https://www.ed.gov/media/document/title-ix-enforcement-directive-dcl-109477.pdf">https://www.ed.gov/media/document/title-ix-enforcement-directive-dcl-109477.pdf</a> (``[The Department] will enforce Title IX under the
provisions of the 2020 Title IX Rule, rather than the 2024 Title IX
Rule.'' (footnotes omitted)); see also Press Release, U.S. Dep't of
Educ., U.S. Department of Education to Enforce 2020 Title IX Rule
Protecting Women (Jan. 31, 2025), <a href="https://www.ed.gov/about/news/press-release/us-department-of-education-enforce-2020-title-ix-rule-protecting-women">https://www.ed.gov/about/news/press-release/us-department-of-education-enforce-2020-title-ix-rule-protecting-women</a>.
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The Department makes four minor changes to the regulatory text as
it existed prior to promulgation of the 2024 Rule. First, the
Department does not reinstate a single sentence that appeared in the
prior version of 34 CFR 106.45(b)(6)(i) (2021) that was vacated by
Victim Rts. L. Ctr. v. Cardona, 552 F. Supp. 3d 104, 132-34 (D. Mass.
2021); Victim Rts. L. Ctr. v. Cardona, No. 20-cv-11104, 2021 WL 3516475
(D. Mass. Aug. 10, 2021) (order). That vacatur is final.
Second, the Department does not reinstate Appendix A to 34 CFR part
106 (2021), which was previously removed by a final rule published by
the Department earlier this year, Rescinding Guidelines for Eliminating
Discrimination and Denial of Services on the Basis of Race, Color,
National Origin, Sex, and Handicap in Vocational Education Programs, 91
FR 46285-94 (July 23, 2026). That final rule rescinded Appendix B to 34
CFR part 100, and the two cross-references to that appendix. 91 FR
46294. One of those rescinded cross-references was Appendix A to 34 CFR
part 106 (2021). Id. Reinstating Appendix A as part of this final rule
would be pointless because it contains no substantive information. It
is a mere cross-reference to provisions that no longer exist.
Third, the Department does not reinstate 34 CFR 106.41(d) (2021),
which provided recipients an ``adjustment period'' of either one year
or three years to come into compliance with the remainder of 34 CFR
106.41. The remainder of 34 CFR 106.41 has not been amended since it
was transferred from the Department of Health, Education, and Welfare
(HEW) to the Department in 1980. See 45 FR 30962. Reinstating 34 CFR
106.41(d) (2021) could create the impression that recipients will now
have another year or three to come into compliance with 34 CFR 106.41,
which is absolutely not the Department's intent. The adjustment period
created by 34 CFR 106.41(d) expired over four decades ago. That
subsection is obsolete and tied to the effective date of the
regulation, rather than a fixed date; reinstating it could create
confusion or new substantive rights and, accordingly, the Department
does not reinstate it.
Fourth, the Department does not reinstate 34 CFR 106.3(c)-(d)
(2021). 34 CFR 106.3(c) required recipients to assess their policies
and make appropriate changes ``within one year of the effective date of
this part.'' That one-year deadline passed about 45 years ago. 34 CFR
106.3(d) required recipients to maintain records from their reviews
conducted under subsection 106.3(c) for at least three years, to be
provided to the Assistant Secretary for Civil Rights on request. That
three-year deadline passed

[[Page 61309]]

approximately four decades ago. Reinstating these subsections could
create the impression that recipients are all required to go through
the review and record-keeping process a second time. Thus, reinstating
the prior language would actually constitute a substantive change, or
at least create the appearance of one. The Department does not intend
to reimpose the requirements of 34 CFR 106.3(c)-(d) (2021) and
therefore does not reinstate those sections in this final rule.

II. Discussion

a. The 2020 Rule

Title IX of the Education Amendments of 1972 prohibits sex
discrimination ``under any education program or activity receiving
Federal financial assistance.'' 20 U.S.C. 1681(a). The Department's
implementing regulations are codified at 34 CFR part 106 and have
governed Title IX compliance since 1975.\3\
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\3\ The Title IX implementing regulations were initially
promulgated in 1975 by HEW at 45 CFR part 86. Following the creation
of the Department of Education in 1980, the regulations were
transferred to the Department and recodified, without substantive
change, 34 CFR part 106. See 20 U.S.C. 3441(a)(3); 45 CFR 30802,
30955-65 (May 9, 1980).
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The Department made considerable amendments to the Title IX
regulations in a final rule promulgated on May 19, 2020, and effective
on August 14, 2020. Nondiscrimination on the Basis of Sex in Education
Programs or Activities Receiving Federal Financial Assistance, 85 FR
30026-30579 (May 19, 2020) (2020 Rule). The Department had previously
published a notice of proposed rulemaking on November 29, 2018,
announcing the proposed rule and generating more than 124,000 public
comments. 83 FR 61462 (Nov. 29, 2018); 85 FR 30031, 30055. The
Department carefully considered those comments and made resulting
changes to the proposed rule, which were explained in careful detail in
the final rule. 85 FR 30031, 30053, 30055-30572. The 2020 Rule was
effective on August 14, 2020, and remained in force at least until the
2024 Rule became effective (in those jurisdictions where in fact it
became effective (see discussion below)).
The Title IX regulations were modified just once between
promulgation of the 2020 Rule and promulgation of the 2024 Rule. On
September 23, 2020, the Department promulgated a final rule, effective
on November 23, 2020, which amended 34 CFR 106.12 by adding subsections
(c) and (d). 85 FR 59916, 59916, 59980-81 (Sept. 23, 2020). 34 CFR
106.12(c) clarifies which institutions are eligible for exemption from
the Title IX regulations due to being ``controlled by a religious
organization,'' the religious tenets of which are inconsistent with
Title IX. See id.; 34 CFR 106.12(a). 34 CFR 106.12(d) adds a
severability provision to the remainder of section 106.12. Neither
subsection had any impact on the operation of the 2020 Rule, except as
to religious institutions that sought exemption from it. 34 CFR
106.12(c)-(d) were not altered at all by the 2024 Rule. See 89 FR
33886. They are likewise not impacted by this final rule.
The 2020 Rule was the subject of multiple post-issuance legal
challenges. All but one failed, with that one only succeeding in small
part. Among the unsuccessful actions were Pennsylvania v. DeVos, 480 F.
Supp. 3d 47 (D.D.C. 2020) (denying motion for preliminary injunction),
and New York v. United States Dep't of Educ., 477 F. Supp. 3d 279
(S.D.N.Y. 2020) (same). The one legal challenge that was partially
successful was Victim Rights Law Center. v. Cardona, in which the
district court vacated the portion of 106.45(b)(6)(i) that prohibited
consideration of statements not subject to cross-examination, finding
that prohibition to be ``arbitrary and capricious in violation of
section 706(2)(A) of the Administrative Procedure Act[.]'' 552 F. Supp.
at 132-34; 2021 WL 3516475, at *1.
At issue was a single sentence in the 2020 Rule's regulatory text,
which spans nearly seven pages in the Federal Register. 85 FR 30572-79.
That single sentence reads as follows:

If a party or witness does not submit to cross-examination at
the live hearing, the decision-maker(s) must not rely on any
statement of that party or witness in reaching a determination
regarding responsibility; provided, however, that the decision-
maker(s) cannot draw an inference about the determination regarding
responsibility based solely on a party's or witness's absence from
the live hearing or refusal to answer cross-examination or other
questions.

85 FR 30577. The district court reasoned that the Department had failed
to consider the consequences of that sentence when read together with
other challenged provisions and that, so read together, this sentence
would render hearings conducted pursuant to 34 CFR 106.45 (2021) to be
``a remarkably hollow gesture.'' Victim Rts. L. Ctr., 552 F. Supp. at
132. The same court, however, sustained the remainder of the 2020 Rule.
Id. at 138 (``For these reasons, the Court finds and rules and, thus
declares, that with the exception of section 106.45(b)(6)(i)'s
prohibition on all statements not subject to cross-examination, the
Final Rule does not violate the APA or the Fifth Amendment.'').

b. The 2024 Rule

The 2024 Rule was promulgated on April 29, 2024, with a declared
effective date of August 1, 2024. 89 FR 33474. It was challenged in
court almost immediately in ten different cases. In eight of those ten
cases,\4\ the Department was preliminarily enjoined from enforcing the
2024 Rule in 26 states and in several individual schools or school
districts in the remaining jurisdictions: (1) Memorandum Ruling at 39-
40, Louisiana v. Dep't of Educ., No. 24-cv-563 (W.D. La. June 13, 2024)
(enjoining enforcement in Louisiana, Mississippi, Montana, and Idaho);
(2) Memorandum Opinion and Order at 93, Tennessee v. Cardona, No. 24-
cv-72 (E.D. Ky. June 17, 2024) (enjoining enforcement in Tennessee,
Kentucky, Ohio, Indiana, Virginia, and West Virginia); (3) Memorandum
and Order at 53, Kansas v. Dep't of Educ., No. 24-cv-4041 (D. Kan. July
2, 2024) (enjoining enforcement in Kansas, Alaska, Utah, Wyoming, and
some individual schools); (4) Memorandum Opinion and Order at 32, Texas
v. United States, No. 24-cv-86-Z (N.D. Tex. July 11, 2024) (enjoining
enforcement in Texas); (5) Memorandum Opinion & Order at 14-15, Carroll
Indep. Sch. Dist. v. Dep't of Educ., No. 24-cv-461 (N.D. Tex. July 11,
2024) (enjoining enforcement against a single school district in
Texas); (6) Memorandum and Order at 55-56, Arkansas v. Dep't of Educ.,
No. 24-cv-636 (E.D. Mo. July 24, 2024) (enjoining enforcement in
Arkansas, Missouri, Iowa, Nebraska, North Dakota, and South Dakota);
(7) Order at 28-29, Oklahoma v. Cardona, No. 24-cv-461 (W.D. Okla. July
31, 2024) (enjoining enforcement in Oklahoma); and (8) Order at 23,
Alabama v. U.S. Sec'y of Educ., No. 24-12444 (11th Cir. Aug. 22, 2024)
(enjoining enforcement in Alabama, Florida, Georgia, and South
Carolina).
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\4\ Litigation in the other two cases terminated before any
decision on the merits. Oklahoma State Department of Education v.
United States, was dismissed without prejudice in January 2025 under
Fed. R. Civ. P. 4(m) due to failure of service. Order, Okla. St.
Dep't of Educ. v. United States, No. 24-cv-459 (W.D. Okla. Jan. 16,
2025). Great Education Initiative v. Department of Education was
dismissed with prejudice, without any finding on the merits, because
the parties ``had reached an agreement to resolve all of the claims
in this matter'' on July 28, 2025. Great Educ. Initiative v. Dep't
of Educ., No. 24-cv-12710 (E.D. Mich. July 29, 2025), ECF No. 37.
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The Department sought a stay pending appeal in a number of these
cases. The requests in Louisiana and

[[Page 61310]]

Tennessee were ultimately denied by the Supreme Court on August 16,
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2024. The Court explained:

[A]ll Members of the Court today accept that the plaintiffs were
entitled to preliminary injunctive relief as to three provisions of
the rule, including the central provision that newly defines sex
discrimination to include discrimination on the basis of sexual
orientation and gender identity. But the [Department] argues (and
the dissent agrees) that those provisions should be severed and that
the other provisions of the new rule should still be permitted to
take effect in the interim period while the [Department]'s appeals
of the preliminary injunctions are pending in the Courts of Appeals.
The lower courts concluded otherwise because the new definition of
sex discrimination is intertwined with and affects many other
provisions of the new rule. Those courts therefore concluded, at
least at this preliminary stage, that the allegedly unlawful
provisions are not readily severable from the remaining provisions.
The lower courts also pointed out the difficulty that schools would
face in determining how to apply the rule for a temporary period
with some provisions in effect and some enjoined.

Dep't of Educ. v. Louisiana, 603 U.S. 866, 867-68 (2024) (per curiam).
The Court concluded that the Department failed to provide a
``sufficient basis to disturb the lower courts' interim conclusions''
on the proper scope of the injunctions. Accordingly, the Department
remained enjoined from enforcing any part of the 2024 Rule in each of
the 26 states and in several schools and districts in other states. See
id. at 868.
Because the stated effective date of the 2024 Rule was August 1,
2024, and seven of the preliminary injunctions were entered before
August 1, 2024, the 2024 Rule was never enforceable in 22 states. It
was enforceable in four states (Alabama, Florida, Georgia, and South
Carolina) from August 1 until preliminary injunction was entered just a
few weeks later.
In two separate cases, final judgment was entered against the
Department. In both instances, the 2024 Rule was vacated in full.
Judgment, Tennessee v. Cardona, No. 24-cv-72 (E.D. Ky. Jan. 9, 2025);
Final Judgment, Carroll Indep. Sch. Dist. v. Dep't of Educ., No. 24-cv-
461 (N.D. Tex. Feb. 19, 2025). (Each of the other six cases in which
enforcement of the 2024 Rule was preliminarily enjoined were
subsequently terminated.\5\)
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\5\ (1) Notice of Voluntary Dismissal, Louisiana v. Dep't of
Educ., No. 24-cv-563 (W.D. La. June 8, 2026); (2) Joint Stipulation
to Dismiss, Kansas v. Dep't of Educ, No. 24-cv-4041 (D. Kan. June
11, 2026); (3) Order, Arkansas v. Dep't of Educ., No. 24-cv-636
(E.D. Mo. June 11, 2026) (issued following notice of voluntary
dismissal on June 9, 2026); (4) Notice, Oklahoma v. Cardona, No. 24-
cv-461 (W.D. Okla. July 31, 2024) (administratively terminating the
action pending subsequent filing by the parties; there have been no
filings reopening the case); (5) Notice of Voluntary Dismissal,
Alabama v. Cardona, No. 24-cv-533 (N.D. Ala. May 29, 2026); and (6)
Notice, Texas v. United States, 24-cv-86-Z (N.D. Tex. (Aug. 5, 2026)
issued following the parties' Joint Stipulation of Dismissal Without
Prejudice on August 3, 2026).
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The Tennessee vacatur rested on four independent grounds, finding
that the 2024 Rule: (1) exceeds the Department's statutory authority
under 20 U.S.C. 1681 by redefining ``sex'' to encompass gender identity
and other categories; (2) violates the First Amendment by compelling
speech and chilling protected expression through its expanded
harassment standard; (3) violates the Spending Clause because it (a)
induced unconstitutional action and (b) conditioned Federal funding on
compliance with nondiscrimination provisions on the basis of gender
identity, without prior ``clear notice'' by Congress in Title IX (and,
indeed, ``not contemplated by the text of the statute''); and (4)
violates the Administrative Procedure Act (APA) for being ``arbitrary
and capricious'' in failing to ``provide a reasoned explanation for
departing from [the Department's] longstanding interpretation of Title
IX.'' Tennessee v. Cardona, 762 F. Supp. 3d 615, 622-28 (E.D. Ky.
2025), as amended (Jan. 10, 2025). A subsequent appeal from this ruling
was dismissed with prejudice in May 2026, following the parties' joint
stipulation pursuant to Fed. R. App. P. 42(b)(1). Joint Stipulation to
Dismiss Appeal, Tennessee v. McMahon, Nos. 25-5205, 25-5206 (6th Cir.
May 8, 2026). The district court's vacatur was thus final.
The Carroll Indep. Sch. Dist. vacatur likewise rested on two
similar independent grounds, finding that the 2024 Rule: (1) violates
the APA for being ``arbitrary and capricious'' in that it (a) ``turns
Title IX on its head'' by defining a prohibition of discrimination ``on
the basis of sex'' to include discrimination based on ``gender
identity,'' (b) holds recipients responsible for harm that is more than
de minimis, and (c) ``eviscerates the statute and renders it largely
meaningless'' by undermining the distinction made by Title IX between
males and females; and (2) violates the First Amendment by compelling
speech and chilling protected expression through its expanded
harassment standard. Carroll Indep. Sch. Dist. v. Dep't of Educ., No.
24-cv-461, 2025 WL 1782572, at *3-*4 (N.D. Tex. Feb. 19, 2025). A
subsequent appeal from this ruling was dismissed in May 2026, following
the parties' joint stipulation pursuant to Fed. R. App. P. 42(b).
Mandate, Carroll Indep. Sch. Dist. v. Dep't of Educ., No. 25-10651 (5th
Cir. May 19, 2026). The district court's vacatur was thus final.
Thus, the 2024 Rule was vacated in full on January 9, 2025, in
final judgments that are no longer appealable. Those vacaturs have not
been disturbed. To ``vacate'' a rule means ``to annul; to cancel or
rescind; to declare, to make, or to render, void; to defeat; to deprive
of force; to make of no authority or validity; to set aside'' that
rule. Action on Smoking & Health v. C.A.B., 713 F.2d 795, 797 (D.C.
Cir. 1983). It has ``the effect of reinstating the rules previously in
force[.]'' Id.; Keystone-Conemaugh Projects LLC v. United States Env't
Prot. Agency, 100 F.4th 434, 446 (3d Cir. 2024) (``When a court vacates
an agency's rule, it restores the status quo before the invalid rule
took effect . . . .''). Accordingly, on January 31, 2025, the
Department announced it would enforce the regulations that existed
prior to the promulgation of the 2024 Rule,\6\ and, in fact, has not
enforced the 2024 Rule in over a year and a half.
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\6\ The January 31, 2025, announcement was later superseded by
guidance dated February 4, 2025. Craig Trainor, Acting Assistant
Secretary for Civil Rights, Dear Colleague Letter (Feb. 4, 2025),
<a href="https://www.ed.gov/media/document/title-ix-enforcement-directive-dcl-109477.pdf">https://www.ed.gov/media/document/title-ix-enforcement-directive-dcl-109477.pdf</a> (``[The Department] will enforce Title IX under the
provisions of the 2020 Title IX Rule, rather than the 2024 Title IX
Rule.'' (footnotes omitted)); see also Press Release, U.S. Dep't of
Educ., U.S. Department of Education to Enforce 2020 Title IX Rule
Protecting Women (Jan. 31, 2025), <a href="https://www.ed.gov/about/news/press-release/us-department-of-education-enforce-2020-title-ix-rule-protecting-women">https://www.ed.gov/about/news/press-release/us-department-of-education-enforce-2020-title-ix-rule-protecting-women</a>.
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III. Need for Rulemaking

This final action does not reopen debate on the 2020 Rule or the
2024 Rule. It does not assess the Department's policy preferences as
between those two rules. It does not choose between those two rules.
Nor does it attempt to justify the policy decisions made in the 2020
Rule or criticize those made in the 2024 Rule. Instead, this final rule
merely returns the CFR to its appearance prior to the promulgation of
the 2024 Rule, with four minor exceptions addressed below.

a. The 2024 Rule Is Null and Should Be Removed From the CFR

Although the 2024 Rule was vacated in full on January 9, 2025, and
has not been enforced at any time after January 31, 2025, the CFR has
yet to be updated. The CFR continues to publish Title IX's implementing
regulations as modified by the since-vacated 2024 Rule, creating

[[Page 61311]]

ambiguity and a source of potential confusion for recipients, courts,
parents and students, and the public writ-large. A formal amendment to
the regulations is necessary to align the codified text with operative
law.
Vacatur of an amendatory rule restores the prior regulatory text as
a matter of law. Action on Smoking & Health v. C.A.B., 713 F.2d 795,
797 (D.C. Cir. 1983) (``To `vacate,' as the parties should well know,
means `to annul; to cancel or rescind; to declare, to make, or to
render, void; to defeat; to deprive of force; to make of no authority
or validity; to set aside.''') (``[T]he judgment of this court had the
effect of reinstating the rules previously in force[.]''); Keystone-
Conemaugh Projects LLC v. United States Env't Prot. Agency, 100 F.4th
434, 446 (3d Cir. 2024) (``When a court vacates an agency's rule, it
restores the status quo before the invalid rule took effect . . . .'').
The 2024 Rule is a nullity and the CFR should be updated to reflect
that fact. This action thus updates the CFR.

b. Reliance Interests

No substantial nationwide reliance interest in the framework
developed by the 2024 Rule ever arose. The 2024 Rule was preliminarily
enjoined across nearly half of the United States before it even took
effect. It would ultimately be preliminarily enjoined in a majority of
jurisdictions by the end of August 2024 and remained so enjoined until
its vacatur in January 2025. Further, in the minority of jurisdictions
in which the rule was not enjoined, it was operative for only a brief
period (August 1, 2024, to January 9, 2025), and (at least as to many
of those jurisdictions) not as to every student or every school.
Recipients in those jurisdictions that made changes to their compliance
protocols did so in full knowledge of active multistate litigation in
which nearly every decision that reached the merits of the 2024 Rule or
at least the question whether to enjoin the 2024 Rule--including a per
curiam procedural decision by the Supreme Court--found the 2024 Rule
materially deficient. The recipients were thus on notice that the 2024
Rule was, at the very least, at substantial risk. Since at least
January 31, 2025, when the Department formally announced that it would
no longer enforce the 2024 Rule, the recipients were on notice that the
2020 Rule, not the 2024 Rule, governed. The recipients were already
well familiar with the 2020 Rule, which was enforced in every
jurisdiction for at least four years. The recipients have had over a
year and a half to revert back to the framework under the 2020 Rule.
Any remaining reliance interest in the 2024 Rule is minimal and is
outweighed by the Department's need to have the CFR reflect the rules
it is enforcing and the very significant (and closely related) interest
that all recipients have in easy access to a clear statement of the
regulations that govern them, codified explicitly in the CFR.

IV. Changes to 34 CFR Part 106

This rule revises 34 CFR part 106 to read as it appeared on April
28, 2024, the day before the 2024 Rule was promulgated, with several
exceptions. First, it omits one sentence from 34 CFR 106.45(b)(6)(i)
(2021), consistent with Victim Rts. L. Ctr., 552 F. Supp. at 132-34;
2021 WL 3516475 at *1. Second, it does not reinstate Appendix A to 34
CFR part 106 (2021). Third, it does not reinstate 34 CFR 106.3(c)-(d),
106.41(d), which are obsolete and tied to the effective date of the
regulation such that reinstating them might have altered their meaning.

Explanation of Changes

The Department amends each section that was amended by the 2024
Rule by replacing those entire sections with the text that appeared on
April 28, 2024. The Department makes no edits or other changes to any
of that text, with some minor exceptions described below.
Because the 2024 Rule did not amend Appendix A to 34 CFR part 106
(2021), and because Appendix A has since been removed by a different
action, 91 FR 46294, this final rule makes no change regarding Appendix
A (that is, this final rule does not reinstate Appendix A into part
106). Further, the Department notes that reinstating Appendix A as part
of this final rule would be pointless because it contains no
substantive information. It is a mere cross-reference to Appendix B to
34 CFR part 100 (2021), which no longer exists. 91 FR 46294.
Further, the Department does not reinstate 34 CFR 106.41(d) (2021),
which provided recipients an ``adjustment period'' of either one year
or three years to come into compliance with the remainder of 34 CFR
106.41. The remainder of 34 CFR 106.41 has not been amended since it
was transferred from HEW to the Department in 1980. See 45 FR 30962.
Reinstating 34 CFR 106.41(d) (2021) could create the impression that
recipients will now have another year or three to come into compliance
with 34 CFR 106.41, which is absolutely not the Department's intent.
The adjustment period created by 34 CFR 106.41(d) expired over four
decades ago. That subsection is obsolete and tied to the effective date
of the regulation, rather than a fixed date; reinstating it could
create confusion or new substantive rights, accordingly, the Department
does not reinstate it
Similarly, the Department does not reinstate 34 CFR 106.3(c)-(d)
(2021). 34 CFR 106.3(c) required recipients to assess their policies
and make appropriate changes ``within one year of the effective date of
this part.'' That one-year deadline passed about 45 years ago. 34 CFR
106.3(d) required recipients to maintain records from their reviews
conducted under subsection 106.3(c) for at least three years, to be
provided to the Assistant Secretary for Civil Rights on request. That
three-year deadline passed approximately four decades ago. Reinstating
these subsections could create the impression that recipients are all
required to go through the review and record-keeping process a second
time. Thus, reinstating the prior language would actually constitute a
substantive change, or at least create the appearance of one. The
Department does not intend to reimpose the requirements of 34 CFR
106.3(c)-(d) (2021) and therefore does not reinstate those sections in
this final rule.
The sections revised by this final rule, the same sections revised
by the 2024 Rule (with two exceptions), are: 34 CFR 106.1; 106.2;
106.6; 106.8; 106.10; 106.11; 106.15; 106.16; 106.17; 106.18; 106.21;
106.30; 106.31; 106.40; 106.44; 106.45; 106.46; 106.47; 106.48; 106.51;
106.57; 106.60; 106.71; & 106.81. See 89 FR 33882-896 (also listing 34
CFR 106.3 and 106.41, which are not amended by this final rule, for
reasons explained above).
The Department does not reinstate the following sentence from 34
CFR 106.45(b)(6)(i) (2021), as it appeared before promulgation of the
2024 Rule:

See 85 FR 30577. As noted above, Victim Rights Law Center vacated
the 2020 Rule's ``prohibition on all statements not subject to cross-
examination'' appearing in 34 CFR 106.45(b)(6)(i). 552 F. Supp. at 132-
34; 2021 WL 3516475 at *1. The court did not, however, specify how the
Department and subsequent courts were to apply the remainder of section
106.45(b)(6)(i). Other than the sentence appearing in the block quote,
no portion

[[Page 61312]]

of section 106.45(b)(6)(i) (2021) is directly implicated by the
district court's vacatur.
The Department has determined that the best course of action is to
omit the entire sentence appearing in the block quote above, rather
than to attempt to rewrite it in a manner that might have inadvertently
altered its meaning or caused it to deviate from the authors' original
intent. While the proviso in the second half of the sentence (starting
with the words ``provided, however'') does not directly prohibit
decision-makers from considering evidence that is not subject to cross-
examination, the manner in which it appears--as a proviso on that
prohibition--implies that the drafters deemed the two clauses to be
dependent on each other. Removing one without the other runs the risk
of creating a scenario not contemplated by the drafters. Accordingly,
the entire sentence is omitted from this final rule.

V. Regulatory Certifications

Exemption From Notice and Comment Under the Administrative Procedure
Act

1. Exemption Under 5 U.S.C. 553(a)(2)
The Department issues this final rule without prior public notice
and comment pursuant to the Administrative Procedure Act's exemption
for rules ``relating to agency management or personnel or to public
property, loans, grants, benefits, or contracts.'' 5 U.S.C. 553(a)(2).
Title IX concerns nondiscrimination conditions for the receipt of
Federal financial assistance, and, more particularly, for the receipt
of various Federal grants or loans, ``Federal personnel,'' and any
other Federal agreement, arrangement, or other contract ``which has as
one of its purposes the provision of assistance'' to any education
program or activity pursuant to a law administered by the Department.
34 CFR 106.2 (both as currently codified in the CFR and as effective on
April 28, 2024, the day before the 2024 Rule was promulgated).
Recipients are required, as a condition on the approval of any request
for Federal financial assistance and the subsequent extension of any
Federal financial assistance, to provide the Department with an
``assurance'' of compliance with all requirements imposed by the Title
IX regulations. 34 CFR 106.4; see Cummings v. Premier Rehab Keller,
P.L.L.C., 596 U.S. 212, 217-18 (2022) (observing that Congress enacted
a similar civil rights statute ``[p]ursuant to its authority to `fix
the terms on which it shall disburse federal money''' (internal
citation omitted)).
Section 553(a)(2) exempts from notice and comment rulemaking
matters ``relating to agency management or personnel or to public
property, loans, grants, benefits, or contracts.'' The Department has
carefully reviewed those broad categories of exempt matters together
with the definition of Federal financial assistance at 34 CFR 106.2,
the specific requirements of 34 CFR 106.4, and the types of Federal
financial assistance provided by the Department. Based on this review,
the Department has concluded that all of the types of Federal financial
assistance provided by the Department that are implicated in this final
rule are within the categories of exempt activities listed in 5 U.S.C.
553(a)(2). This final rule is thus exempt from notice and comment
rulemaking.
Similarly, the Department's reliance on 5 U.S.C. 553(a)(2) is
consistent with the definition of Federal financial assistance provided
by the Office of Management and Budget (OMB) under 2 CFR 200.1, which
defines Federal financial assistance with the same categories as the
Administrative Procedure Act's exception for rules ``relating to agency
management or personnel or to public property, loans, grants, benefits,
or contracts.'' 5 U.S.C. 553(a)(2). With potentially limited exceptions
not applicable to the Department, all the forms of Federal financial
assistance set forth under 2 CFR 200.1 that the Department administers
would fall under the ``public property, loans, grants, benefits, or
contracts'' exception.
Courts have found that rules related to these forms of financial
assistance are exempt from notice-and-comment rulemaking. See, e.g.,
Cal. Dep't of Educ. v. Bennett, 849 F.2d 1227, 1236 (9th Cir. 1988)
(holding that Education Department rule concerning the return of
Federal funds used for improper purposes did not require notice-and-
comment rulemaking procedures); Nat'l Wildlife Fed'n v. Snow, 561 F.2d
227, 229 (D.C. Cir. 1976) (holding that a Federal Highway
Administration rule governing the issuance of Federal funding for
highways was exempt from notice-and-comment procedures); Texas v.
Becerra, 577 F. Supp. 3d 527, 547 (N.D. Tex. 2021) (``The APA
specifically exempts matters relating to `grants,' and Head Start is a
federal grant program.'').
This rule relates to the public property, loans, grants, benefits
and contracts that constitute Federal financial assistance because it
restates and reclarifies the rules in force that govern compliance
determinations under Title IX and that form the basis of the assurances
that recipients must make under 34 CFR 106.4. The `relating to'
standard is a broad one, easily satisfied by this rule. See Cummings,
596 U.S. at 217-18 (observing that Congress enacted a similar civil
rights statute ``[p]ursuant to its authority to `fix the terms on which
it shall disburse federal money''' (citation omitted)). As one court
explained, ``Section 553(a)(2) cuts a wide swath'' and ``a broad domain
is preserved for its operation.'' Humana of S.C., Inc. v. Califano, 590
F.2d 1070, 1082 (D.C. Cir. 1978). ``[T]o the extent that any one of the
enumerated categories is clearly and directly involved in the
regulatory effort at issue, the Act's procedural compulsions are
suspended.'' Id. (internal quotation marks omitted). The rule is
therefore exempt under 5 U.S.C. 553(a)(2). See Education Programs or
Activities Receiving or Benefitting From Federal Financial Assistance,
82 FR 46655 (Oct. 6, 2017) (invoking exception to amend Title IX
regulations to ``promote consistency in the enforcement of Title IX for
[Department of Agriculture] financial assistance recipients'');
Preserving Community and Neighborhood Choice, 85 FR 47899 (Aug. 7,
2020) (invoking exception to repeal Housing and Urban Development rule
regarding Federal grantees); Participation by Minority Business
Enterprise in Department of Transportation Programs, 53 FR 18285 (May
23, 1988) (invoking exception to expand coverage of Department of
Transportation regulation regarding Federal Aviation Administration's
airport financial assistance program); Nondiscrimination on the Basis
of Handicap in Federally Assisted Programs: Suspension of Guidelines
With Respect to Mass Transportation, 46 FR 40687 (Aug. 11, 1981)
(invoking exception to suspend Department of Justice guidelines
regarding the prohibition of disability discrimination in
transportation programs and activities receiving Federal financial
assistance).
Thus, the Department issues this action without prior public notice
and comment, under 5 U.S.C. 553(a)(2). Further, because the exception
in section 553(a)(2) applies to section 553 as a whole, the Department
issues this action without the delayed effective date typically
required by 5 U.S.C. 553(d).
2. Exemption Under 5 U.S.C. 553(b)(B), 553(d)(3)
In the alternative, the Department finds good cause for issuing
this action without prior public notice and comment, and without a
delayed effective date, under 5 U.S.C. 553(b)(B) and 553(d)(3).

[[Page 61313]]

5 U.S.C. 553(b)(B) exempts regulatory actions from the notice and
comment requirement when compliance with that requirement would be
``impracticable, unnecessary, or contrary to the public interest.'' The
Department finds good cause to dispense with public notice and comment
because such notice and comment would be both unnecessary and contrary
to the public interest.
Public notice and comment is deemed ``unnecessary'' under section
553(b)(B) when ``the administrative rule is a routine determination,
insignificant in nature and impact, and inconsequential to the industry
and to the public.'' Mack Trucks, Inc. v. E.P.A., 682 F.3d 87, 94 (D.C.
Cir. 2012); Nat. Res. Def. Council v. Nat'l Highway Traffic Safety
Admin., 894 F.3d 95, 114 (2d Cir. 2018); see also Metzenbaum v. FERC,
675 F.2d 1282, 1291 (D.C. Cir. 1982) (per curiam) (holding that
conducting notice and comment in exercising nondiscretionary actions
would be a ``futile gesture'' and therefore ``unnecessary'' under 5
U.S.C. 553(b)(B)). This final rule fits that description. The
Department here does nothing but remove from the CFR regulations that
have been vacated (and have not been enforced for at least a year and a
half) and replaces them with those regulations that are controlling.
See Retirement Security Rule: Definition of an Investment Advice
Fiduciary: Notice of Court Vacatur, 91 FR 13503, 13504-05 (Mar. 20,
2026) (``The Department has determined that there is good cause for
dispensing with public comments in this case, inasmuch as this final
rule merely conforms the text in the CFR to reflect the mandate of the
courts' decisions . . . . Because the Department is merely giving
effect to the courts' orders, and is not exercising discretion with
respect to this action, any notice and comment process would be
unnecessary[.]'')
Aside from four minor changes described herein, the regulations
that will exist after this final rule appear exactly as they did before
the since-vacated 2024 Rule was promulgated. This action reflects no
essential legal or policy determination by the Department, other than
the fact that the 2024 Rule is not in force. The purpose of this final
rule is simply to update the CFR.
For much the same reason, the Department finds that engaging in
public notice and comment would be contrary to public interest. Notice
and comment would considerably delay the Department's efforts to update
the CFR. And no comment, no matter how persuasive, could plausibly
persuade the Department to decline to remove the 2024 Rule from the
CFR, which is ``already mandated by the courts.'' See Retirement
Security Rule: Definition of an Investment Advice Fiduciary: Notice of
Court Vacatur, 91 FR 13503, 13505 (Mar. 20, 2026). The public has an
interest in public codification of the regulations that are in force.
The 2024 Rule has been vacated in a final judgment no longer subject to
appeal. It is null. It should be removed from the public codification
forthwith; any further delay is contrary to the public interest.
The Department similarly finds good cause to issue this action
without a delayed effective date, pursuant to 5 U.S.C. 553(d)(3).
Delaying the effective date of this final rule would only prolong the
ambiguity caused by the fact that the CFR is in need of an update. The
text appearing in the CFR has not been in force for at least a year and
a half. Delaying the effective date of this final rule would serve no
legitimate purpose and is plainly not in the public interest.
Executive Order 12250, Leadership and Coordination of Nondiscrimination
Laws
E.O. 12250 delegates to the Attorney General the President's
function of approving rules, regulations, and orders of general
applicability under section 902 of the Civil Rights Act of 1964. The
Department of Justice has reviewed and approved this rule.
Executive Orders 12866, Regulatory Planning and Review and 13563,
Improving Regulation and Regulatory Review
E.O. 12866, 58 FR 51735 (Oct. 4, 1993), requires agencies to
consider both the quantitative and qualitative costs and benefits of a
rule and to adopt a regulation only if the rule justifies its costs.
This rule has been drafted and reviewed in accordance with section 1(b)
of E.O. 12866, as well as with E.O. 13563, 76 FR 3821 (Jan. 21, 2011),
which supplements and explicitly affirms the principles of E.O. 12866.
Section 2(c) of E.O. 13563 states that agencies may consider
qualitative values that are either difficult or impossible to quantify,
while section 3 directs agencies to harmonize their regulations to
simplify their burden and to avoid inconsistent and overlapping
requirements.
Under section 6(a) of E.O. 12866, the Office of Information and
Regulatory Affairs (OIRA) within OMB determines whether a regulatory
action is significant and, therefore, subject to OMB review. E.O. 12866
also requires agencies to submit ``significant regulatory actions'' to
OIRA for review. OIRA has determined that this final rule is a
``significant regulatory action'' under section 3(f) of E.O. 12866.
Accordingly, the Department submitted this final rule to OIRA for
review under E.O. 12866.
As discussed in the preamble, this action is necessary to conform
the CFR to the regulations that are currently in force and have been in
force for at least a year and a half. It effects no change of current
substantive law. The Department does not anticipate this action
imposing any costs on any party.
Executive Order 14219, Ensuring Lawful Governance and Implementing the
President's ``Department of Government Efficiency'' Deregulatory
Initiative
E.O. 14219, 90 FR 10583 (Feb. 25, 2025), directs agencies to
identify regulations that, among other things, are unconstitutional or
are constitutionally suspect, based on unlawful delegations of
legislative power, or that are based on anything but the best reading
of the authorizing statute. As discussed above, regulations currently
appearing in the CFR have been vacated by binding court order. This
rule replaces those regulations with those that are in force and is
thus issued in furtherance of E.O. 14219.
Executive Order 14192, Unleashing Prosperity Through Deregulation
Executive Order 14192, 90 FR 9065 (Feb. 6, 2025), establishes a
regulatory budget process for agencies and requires them to offset new
regulatory burdens or costs. This rule is not expected to impose any
financial costs on any party, but will make it far easier for the
public, regulated entities, and parents and children in the nation's
schools to better understand which regulations govern compliance with
Title IX and eliminates the confusion created by a CFR that is over a
year and a half out of date. Such confusion has a tendency to cause
over-compliance, with affected parties trying to comply with both the
2024 Rule and the regulations actually in force. Accordingly, the
Department expects this rule to be a deregulatory action under E.O.
14192.
Executive Order 13132, Federalism
E.O. 13132, 64 FR 43255 (Aug. 10, 1999), prohibits an agency from
publishing any rule that has federalism implications if the rule
imposes substantial direct compliance costs on State and local
governments and is not required by statute or the rule preempts State
law, unless the agency meets the consultation and funding requirements
of section 6 of the E.O. This rule will not have a substantial direct
effect on

[[Page 61314]]

the relationship between the Federal government and the States, on
distribution of power and responsibilities among various levels of
government, or on States' policymaking discretion. This rule does not
subject recipients to new obligations. As a result, and in accordance
with section 6 of E.O. 13132, the Department has determined that these
amendments to the Department's regulations do not have sufficient
federalism implications to warrant preparation of a federalism summary
impact statement as outlined in section 6(c)(2).
Executive Order 12988, Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and (b)(2) of E.O. 12988, 61 FR 4729 (Feb. 7, 1996), to specify
provisions in clear language. Pursuant to section 3(b)(1)(I) of the
E.O., nothing in this final rule or any previous rule (or in any
administrative policy, directive, ruling, notice, guideline, guidance,
or writing) directly relating to the programs that are the subject of
this final rule is intended to create any legal or procedural rights
enforceable against the United States.
Executive Order 14294, Overcriminalization in Federal Regulations
E.O. 14294, 90 FR 20363 (May 14, 2025), requires agencies
promulgating regulations with offenses potentially subject to criminal
enforcement to explicitly describe the conduct subject to criminal
enforcement, the authorizing statutes, and the mens rea standard
applicable to each element of those offenses. This rule does not impose
a criminal regulatory penalty and is thus exempt from E.O. 14294's
requirements.
Paperwork Reduction Act, 44 U.S.C. 3501-3520
Pursuant to the Paperwork Reduction Act, agencies must consider
whether a rule will create additional burdens related to recordkeeping,
paperwork, or information collection. This rule will not impose any
additional burdens or requirements in these respects.
Regulatory Flexibility Act, 5 U.S.C. Chapter 6
The Regulatory Flexibility Act (``RFA''), as amended by the Small
Business Regulatory Enforcement and Fairness Act of 1996, requires an
agency to prepare and make available to the public a final regulatory
flexibility analysis that describes the effect of a rule on small
entities (i.e., small businesses, small organizations, and small
governmental jurisdictions) when the agency is required ``to publish a
general notice of proposed rulemaking'' prior to issuing the final
rule. See 5 U.S.C. 604(a). Because this rule is being issued without a
prior notice of proposed rulemaking, on the grounds set forth above, a
regulatory flexibility analysis is not required under the RFA. Further,
even if the RFA were applicable here, the Department would find that
this rule will not have a significant economic impact on a substantial
number of small entities because these regulatory changes do not impose
any new substantive obligations on Federal funding recipients. All
Federal funding recipients remain bound by the Title IX regulations
that are already in force.
Unfunded Mandates Reform Act, 2 U.S.C. Chapter 25
The Unfunded Mandates Reform Act of 1995 requires agencies to
prepare assessments of any rule that would result in the annual
expenditure of more than $100 million by State, local, or Tribal
governments, or the private sector. 2 U.S.C. 1503(2) exempts from the
Act's coverage a proposed or final rule such as this one that
``establishes or enforces any statutory rights that prohibit
discrimination on the basis of race, color, religion, sex, national
origin, age, handicap, or disability.'' This rule is therefore not
subject to the provisions of the Act.
Congressional Review Act
The Office of Information and Regulatory Affairs has determined
that this rule is not a ``major rule'' as defined by the Congressional
Review Act, 5 U.S.C. 804(2).

List of Subjects for 34 CFR Part 106

Administrative practice and procedure, Civil rights, Education,
Equal employment opportunity, Grant programs, Sex discrimination.

Signing Authority

This document of the U.S. Department of Education was signed on
September 25, 2026, by Linda E. McMahon, U.S. Secretary of Education.
That document with the original signature and date is maintained by the
U.S. Department of Education. For administrative purposes only, and in
compliance with requirements of the Office of the Federal Register, the
undersigned has been authorized to sign the document in electronic
format for publication, as an official document of the U.S. Department
of Education. This administrative process in no way alters the legal
effect of this document upon publication in the Federal Register.

Tracey St. Pierre,
Director, Office of the Executive Secretariat, Office of the Secretary,
U.S. Department of Education.

For the reasons discussed in the preamble, the Secretary of
Education amends part 106 of title 34 of the Code of Federal
Regulations as set forth below:

PART 106--NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION
PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE

0
1. The authority citation for part 106 continues to read as follows:

Authority: 20 U.S.C. 1681 et seq., unless otherwise noted.

0
2. Section 106.1 is revised to read as follows:

Sec. 106.1 Purpose and effective date.

The purpose of this part is to effectuate title IX of the Education
Amendments of 1972, as amended by Public Law 93-568, 88 Stat. 1855
(except sections 904 and 906 of those Amendments) which is designed to
eliminate (with certain exceptions) discrimination on the basis of sex
in any education program or activity receiving Federal financial
assistance, whether or not such program or activity is offered or
sponsored by an educational institution as defined in this part. This
part is also intended to effectuate section 844 of the Education
Amendments of 1974, Public Law 93-380, 88 Stat. 484. The effective date
of this part shall be July 21, 1975.

0
3. Section 106.2 is revised to read as follows:

Sec. 106.2 Definitions.

As used in this part, the term:
(a) Title IX means title IX of the Education Amendments of 1972,
Public Law 92-318, as amended by section 3 of Public Law 93-568, 88
Stat. 1855, except sections 904 and 906 thereof; 20 U.S.C. 1681, 1682,
1683, 1685, 1686.
(b) Department means the Department of Education.
(c) Secretary means the Secretary of Education.
(d) Assistant Secretary means the Assistant Secretary for Civil
Rights of the Department.
(e) Reviewing Authority means that component of the Department
delegated authority by the Secretary to appoint, and to review the
decisions of, administrative law judges in cases arising under this
part.

[[Page 61315]]

(f) Administrative law judge means a person appointed by the
reviewing authority to preside over a hearing held under this part.
(g) Federal financial assistance means any of the following, when
authorized or extended under a law administered by the Department:
(1) A grant or loan of Federal financial assistance, including
funds made available for:
(i) The acquisition, construction, renovation, restoration, or
repair of a building or facility or any portion thereof; and
(ii) Scholarships, loans, grants, wages or other funds extended to
any entity for payment to or on behalf of students admitted to that
entity or extended directly to such students for payment to that
entity.
(2) A grant of Federal real or personal property or any interest
therein, including surplus property, and the proceeds of the sale or
transfer of such property, if the Federal share of the fair market
value of the property is not, upon such sale or transfer, properly
accounted for to the Federal Government.
(3) Provision of the services of Federal personnel.
(4) Sale or lease of Federal property or any interest therein at
nominal consideration, or at consideration reduced for the purpose of
assisting the recipient or in recognition of public interest to be
served thereby, or permission to use Federal property or any interest
therein without consideration.
(5) Any other contract, agreement, or arrangement which has as one
of its purposes the provision of assistance to any education program or
activity, except a contract of insurance or guaranty.
(h) Program or activity and program means all of the operations
of--
(1)(i) A department, agency, special purpose district, or other
instrumentality of a State or local government; or
(ii) The entity of a State or local government that distributes
such assistance and each such department or agency (and each other
State or local government entity) to which the assistance is extended,
in the case of assistance to a State or local government;
(2)(i) A college, university, or other post-secondary institution,
or a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 8801),
system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, other private
organization, or an entire sole proprietorship--
(A) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(ii) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(4) Any other entity that is established by two or more of the
entities described in paragraph (h)(1), (2), or (3) of this section;
any part of which is extended Federal financial assistance.
(i) Recipient means any State or political subdivision thereof, or
any instrumentality of a State or political subdivision thereof, any
public or private agency, institution, or organization, or other
entity, or any person, to whom Federal financial assistance is extended
directly or through another recipient and which operates an education
program or activity which receives such assistance, including any
subunit, successor, assignee, or transferee thereof.
(j) Applicant means one who submits an application, request, or
plan required to be approved by a Department official, or by a
recipient, as a condition to becoming a recipient.
(k) Educational institution means a local educational agency (LEA)
as defined by section 1001(f) of the Elementary and Secondary Education
Act of 1965 (20 U.S.C. 3381), a preschool, a private elementary or
secondary school, or an applicant or recipient of the type defined by
paragraph (l), (m), (n), or (o) of this section.
(l) Institution of graduate higher education means an institution
which:
(1) Offers academic study beyond the bachelor of arts or bachelor
of science degree, whether or not leading to a certificate of any
higher degree in the liberal arts and sciences; or
(2) Awards any degree in a professional field beyond the first
professional degree (regardless of whether the first professional
degree in such field is awarded by an institution of undergraduate
higher education or professional education); or
(3) Awards no degree and offers no further academic study but
operates ordinarily for the purpose of facilitating research by persons
who have received the highest graduate degree in any field of study.
(m) Institution of undergraduate higher education means:
(1) An institution offering at least two but less than four years
of college level study beyond the high school level, leading to a
diploma or an associate degree, or wholly or principally creditable
toward a baccalaureate degree; or
(2) An institution offering academic study leading to a
baccalaureate degree; or
(3) An agency or body which certifies credentials or offers
degrees, but which may or may not offer academic study.
(n) Institution of professional education means an institution
(except any institution of undergraduate higher education) which offers
a program of academic study that leads to a first professional degree
in a field for which there is a national specialized accrediting agency
recognized by the Secretary.
(o) Institution of vocational education means a school or
institution (except an institution of professional or graduate or
undergraduate higher education) which has as its primary purpose
preparation of students to pursue a technical, skilled, or semiskilled
occupation or trade, or to pursue study in a technical field, whether
or not the school or institution offers certificates, diplomas, or
degrees and whether or not it offers fulltime study.
(p) Administratively separate unit means a school, department or
college of an educational institution (other than a local educational
agency) admission to which is independent of admission to any other
component of such institution.
(q) Admission means selection for part-time, full-time, special,
associate, transfer, exchange, or any other enrollment, membership, or
matriculation in or at an education program or activity operated by a
recipient.
(r) Student means a person who has gained admission.
(s) Transition plan means a plan subject to the approval of the
Secretary pursuant to section 901(a)(2) of the Education Amendments of
1972, under which an educational institution operates in making the
transition from being an educational institution which admits only
students of one sex to being one which admits students of both sexes
without discrimination.

0
4. Section 106.6 is amended by revising paragraphs (b), (e), and (g)
and adding paragraph (h) to read as follows:

[[Page 61316]]

Sec. 106.6 Effect of other requirements and preservation of rights.

* * * * *
(b) Effect of State or local law or other requirements. The
obligation to comply with this part is not obviated or alleviated by
any State or local law or other requirement which would render any
applicant or student ineligible, or limit the eligibility of any
applicant or student, on the basis of sex, to practice any occupation
or profession.
* * * * *
(e) Effect of Section 444 of General Education Provisions Act
(GEPA)/Family Educational Rights and Privacy Act (FERPA). The
obligation to comply with this part is not obviated or alleviated by
the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part
99.
* * * * *
(g) Exercise of rights by parents or guardians. Nothing in this
part may be read in derogation of any legal right of a parent or
guardian to act on behalf of a ``complainant,'' ``respondent,''
``party,'' or other individual, subject to paragraph (e) of this
section, including but not limited to filing a formal complaint.
(h) Preemptive effect. To the extent of a conflict between State or
local law and title IX as implemented by Sec. Sec. 106.30, 106.44, and
106.45, the obligation to comply with Sec. Sec. 106.30, 106.44, and
106.45 is not obviated or alleviated by any State or local law.

0
5. Section 106.8 is revised to read as follows:

Sec. 106.8 Designation of coordinator, dissemination of policy, and
adoption of grievance procedures.

(a) Designation of coordinator. Each recipient must designate and
authorize at least one employee to coordinate its efforts to comply
with its responsibilities under this part, which employee must be
referred to as the ``Title IX Coordinator.'' The recipient must notify
applicants for admission and employment, students, parents or legal
guardians of elementary and secondary school students, employees, and
all unions or professional organizations holding collective bargaining
or professional agreements with the recipient, of the name or title,
office address, electronic mail address, and telephone number of the
employee or employees designated as the Title IX Coordinator pursuant
to this paragraph. Any person may report sex discrimination, including
sexual harassment (whether or not the person reporting is the person
alleged to be the victim of conduct that could constitute sex
discrimination or sexual harassment), in person, by mail, by telephone,
or by electronic mail, using the contact information listed for the
Title IX Coordinator, or by any other means that results in the Title
IX Coordinator receiving the person's verbal or written report. Such a
report may be made at any time (including during non-business hours) by
using the telephone number or electronic mail address, or by mail to
the office address, listed for the Title IX Coordinator.
(b) Dissemination of policy--(1) Notification of policy. Each
recipient must notify persons entitled to a notification under
paragraph (a) of this section that the recipient does not discriminate
on the basis of sex in the education program or activity that it
operates, and that it is required by title IX and this part not to
discriminate in such a manner. Such notification must state that the
requirement not to discriminate in the education program or activity
extends to admission (unless subpart C of this part does not apply) and
employment, and that inquiries about the application of title IX and
this part to such recipient may be referred to the recipient's Title IX
Coordinator, to the Assistant Secretary, or both.
(2) Publications. (i) Each recipient must prominently display the
contact information required to be listed for the Title IX Coordinator
under paragraph (a) of this section and the policy described in
paragraph (b)(1) of this section on its website, if any, and in each
handbook or catalog that it makes available to persons entitled to a
notification under paragraph (a) of this section.
(ii) A recipient must not use or distribute a publication stating
that the recipient treats applicants, students, or employees
differently on the basis of sex except as such treatment is permitted
by title IX or this part.
(c) Adoption of grievance procedures. A recipient must adopt and
publish grievance procedures that provide for the prompt and equitable
resolution of student and employee complaints alleging any action that
would be prohibited by this part and a grievance process that complies
with Sec. 106.45 for formal complaints as defined in Sec. 106.30. A
recipient must provide to persons entitled to a notification under
paragraph (a) of this section notice of the recipient's grievance
procedures and grievance process, including how to report or file a
complaint of sex discrimination, how to report or file a formal
complaint of sexual harassment, and how the recipient will respond.
(d) Application outside the United States. The requirements of
paragraph (c) of this section apply only to sex discrimination
occurring against a person in the United States.

Sec. 106.10 [Removed]

0
6. Remove Sec. 106.10.

0
7. Section 106.11 is revised to read as follows:

Sec. 106.11 Application.

Except as provided in this subpart, this part 106 applies to every
recipient and to the education program or activity operated by such
recipient which receives Federal financial assistance.

0
8. Section 106.15 is amended by revising paragraph (b) to read as
follows:

Sec. 106.15 Admissions.

* * * * *
(b) Administratively separate units. For the purposes only of this
section, Sec. Sec. 106.16 and 106.17, and subpart C, each
administratively separate unit shall be deemed to be an educational
institution.
* * * * *

0
9. Section 106.16 is revised to read as follows:

Sec. 106.16 Educational institutions eligible to submit transition
plans.

(a) Application. This section applies to each educational
institution to which subpart C applies which:
(1) Admitted only students of one sex as regular students as of
June 23, 1972; or
(2) Admitted only students of one sex as regular students as of
June 23, 1965, but thereafter admitted as regular students, students of
the sex not admitted prior to June 23, 1965.
(b) Provision for transition plans. An educational institution to
which this section applies shall not discriminate on the basis of sex
in admission or recruitment in violation of subpart C unless it is
carrying out a transition plan approved by the Secretary as described
in Sec. 106.17, which plan provides for the elimination of such
discrimination by the earliest practicable date but in no event later
than June 23, 1979.

0
10. Section 106.17 is added to read as follows:

Sec. 106.17 Transition plans.

(a) Submission of plans. An institution to which Sec. 106.16
applies and which is composed of more than one administratively
separate unit may submit either a single transition plan applicable to
all such units, or a separate transition plan applicable to each such
unit.
(b) Content of plans. In order to be approved by the Secretary a
transition plan shall:

[[Page 61317]]

(1) State the name, address, and Federal Interagency Committee on
Education (FICE) Code of the educational institution submitting such
plan, the administratively separate units to which the plan is
applicable, and the name, address, and telephone number of the person
to whom questions concerning the plan may be addressed. The person who
submits the plan shall be the chief administrator or president of the
institution, or another individual legally authorized to bind the
institution to all actions set forth in the plan.
(2) State whether the educational institution or administratively
separate unit admits students of both sexes, as regular students and,
if so, when it began to do so.
(3) Identify and describe with respect to the educational
institution or administratively separate unit any obstacles to
admitting students without discrimination on the basis of sex.
(4) Describe in detail the steps necessary to eliminate as soon as
practicable each obstacle so identified and indicate the schedule for
taking these steps and the individual directly responsible for their
implementation.
(5) Include estimates of the number of students, by sex, expected
to apply for, be admitted to, and enter each class during the period
covered by the plan.
(c) Nondiscrimination. No policy or practice of a recipient to
which Sec. 106.16 applies shall result in treatment of applicants to
or students of such recipient in violation of subpart C unless such
treatment is necessitated by an obstacle identified in paragraph (b)(3)
of this section and a schedule for eliminating that obstacle has been
provided as required by paragraph (b)(4) of this section.
(d) Effects of past exclusion. To overcome the effects of past
exclusion of students on the basis of sex, each educational institution
to which Sec. 106.16 applies shall include in its transition plan, and
shall implement, specific steps designed to encourage individuals of
the previously excluded sex to apply for admission to such institution.
Such steps shall include instituting recruitment which emphasizes the
institution's commitment to enrolling students of the sex previously
excluded.

0
11. Section 106.18 is added to read as follows:

Sec. 106.18 Severability.

If any provision of this subpart or its application to any person,
act, or practice is held invalid, the remainder of the subpart or the
application of its provisions to any person, act, or practice shall not
be affected thereby.

0
12. Section 106.21 is amended by revising paragraphs (a) and (c) to
read as follows:

Sec. 106.21 Admission.

(a) General. No person shall, on the basis of sex, be denied
admission, or be subjected to discrimination in admission, by any
recipient to which this subpart applies, except as provided in
Sec. Sec. 106.16 and 106.17.
* * * * *
(c) Prohibitions relating to marital or parental status. In
determining whether a person satisfies any policy or criterion for
admission, or in making any offer of admission, a recipient to which
this subpart applies:
(1) Shall not apply any rule concerning the actual or potential
parental, family, or marital status of a student or applicant which
treats persons differently on the basis of sex;
(2) Shall not discriminate against or exclude any person on the
basis of pregnancy, childbirth, termination of pregnancy, or recovery
therefrom, or establish or follow any rule or practice which so
discriminates or excludes;
(3) Shall treat disabilities related to pregnancy, childbirth,
termination of pregnancy, or recovery therefrom in the same manner and
under the same policies as any other temporary disability or physical
condition; and
(4) Shall not make pre-admission inquiry as to the marital status
of an applicant for admission, including whether such applicant is
``Miss'' or ``Mrs.'' A recipient may make pre-admission inquiry as to
the sex of an applicant for admission, but only if such inquiry is made
equally of such applicants of both sexes and if the results of such
inquiry are not used in connection with dis-crimination prohibited by
this part.

0
13. Section 106.30 is added to subpart D to read as follows:

Sec. 106.30 Definitions.

(a) As used in this part:
Actual knowledge means notice of sexual harassment or allegations
of sexual harassment to a recipient's Title IX Coordinator or any
official of the recipient who has authority to institute corrective
measures on behalf of the recipient, or to any employee of an
elementary and secondary school. Imputation of knowledge based solely
on vicarious liability or constructive notice is insufficient to
constitute actual knowledge. This standard is not met when the only
official of the recipient with actual knowledge is the respondent. The
mere ability or obligation to report sexual harassment or to inform a
student about how to report sexual harassment, or having been trained
to do so, does not qualify an individual as one who has authority to
institute corrective measures on behalf of the recipient. ``Notice'' as
used in this paragraph includes, but is not limited to, a report of
sexual harassment to the Title IX Coordinator as described in Sec.
106.8(a).
Complainant means an individual who is alleged to be the victim of
conduct that could constitute sexual harassment.
Consent. The Assistant Secretary will not require recipients to
adopt a particular definition of consent with respect to sexual
assault, as referenced in this section.
Formal complaint means a document filed by a complainant or signed
by the Title IX Coordinator alleging sexual harassment against a
respondent and requesting that the recipient investigate the allegation
of sexual harassment. At the time of filing a formal complaint, a
complainant must be participating in or attempting to participate in
the education program or activity of the recipient with which the
formal complaint is filed. A formal complaint may be filed with the
Title IX Coordinator in person, by mail, or by electronic mail, by
using the contact information required to be listed for the Title IX
Coordinator under Sec. 106.8(a), and by any additional method
designated by the recipient. As used in this paragraph, the phrase
``document filed by a complainant'' means a document or electronic
submission (such as by electronic mail or through an online portal
provided for this purpose by the recipient) that contains the
complainant's physical or digital signature, or otherwise indicates
that the complainant is the person filing the formal complaint. Where
the Title IX Coordinator signs a formal complaint, the Title IX
Coordinator is not a complainant or otherwise a party under this part
or under Sec. 106.45, and must comply with the requirements of this
part, including Sec. 106.45(b)(1)(iii).
Respondent means an individual who has been reported to be the
perpetrator of conduct that could constitute sexual harassment.
Sexual harassment means conduct on the basis of sex that satisfies
one or more of the following:
(1) An employee of the recipient conditioning the provision of an
aid, benefit, or service of the recipient on an individual's
participation in unwelcome sexual conduct;
(2) Unwelcome conduct determined by a reasonable person to be so
severe, pervasive, and objectively offensive that it effectively denies
a person equal

[[Page 61318]]

access to the recipient's education program or activity; or
(3) ``Sexual assault'' as defined in 20 U.S.C. 1092(f)(6)(A)(v),
``dating violence'' as defined in 34 U.S.C. 12291(a)(10), ``domestic
violence'' as defined in 34 U.S.C. 12291(a)(8), or ``stalking'' as
defined in 34 U.S.C. 12291(a)(30).
Supportive measures means non-disciplinary, non-punitive
individualized services offered as appropriate, as reasonably
available, and without fee or charge to the complainant or the
respondent before or after the filing of a formal complaint or where no
formal complaint has been filed. Such measures are designed to restore
or preserve equal access to the recipient's education program or
activity without unreasonably burdening the other party, including
measures designed to protect the safety of all parties or the
recipient's educational environment, or deter sexual harassment.
Supportive measures may include counseling, extensions of deadlines or
other course-related adjustments, modifications of work or class
schedules, campus escort services, mutual restrictions on contact
between the parties, changes in work or housing locations, leaves of
absence, increased security and monitoring of certain areas of the
campus, and other similar measures. The recipient must maintain as
confidential any supportive measures provided to the complainant or
respondent, to the extent that maintaining such confidentiality would
not impair the ability of the recipient to provide the supportive
measures. The Title IX Coordinator is responsible for coordinating the
effective implementation of supportive measures.
(b) As used in Sec. Sec. 106.44 and 106.45:
Elementary and secondary school means a local educational agency
(LEA), as defined in the Elementary and Secondary Education Act of
1965, as amended by the Every Student Succeeds Act, a preschool, or a
private elementary or secondary school.
Postsecondary institution means an institution of graduate higher
education as defined in Sec. 106.2(l), an institution of undergraduate
higher education as defined in Sec. 106.2(m), an institution of
professional education as defined in Sec. 106.2(n), or an institution
of vocational education as defined in Sec. 106.2(o).

0
14. Section 106.31 is amended by revising paragraph (a) to read as
follows:

Sec. 106.31 Education programs or activities.

(a) General. Except as provided elsewhere in this part, no person
shall, on the basis of sex, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any
academic, extracurricular, research, occupational training, or other
education program or activity operated by a recipient which receives
Federal financial assistance. This subpart does not apply to actions of
a recipient in connection with admission of its students to an
education program or activity of (1) a recipient to which subpart C
does not apply, or (2) an entity, not a recipient, to which subpart C
would not apply if the entity were a recipient.
* * * * *

0
15. Section 106.40 is revised to read as follows:

Sec. 106.40 Marital or parental status.

(a) Status generally. A recipient shall not apply any rule
concerning a student's actual or potential parental, family, or marital
status which treats students differently on the basis of sex.
(b) Pregnancy and related conditions. (1) A recipient shall not
discriminate against any student, or exclude any student from its
education program or activity, including any class or extracurricular
activity, on the basis of such student's pregnancy, childbirth, false
pregnancy, termination of pregnancy or recovery therefrom, unless the
student requests voluntarily to participate in a separate portion of
the program or activity of the recipient.
(2) A recipient may require such a student to obtain the
certification of a physician that the student is physically and
emotionally able to continue participation so long as such a
certification is required of all students for other physical or
emotional conditions requiring the attention of a physician.
(3) A recipient which operates a portion of its education program
or activity separately for pregnant students, admittance to which is
completely voluntary on the part of the student as provided in
paragraph (b)(1) of this section shall ensure that the separate portion
is comparable to that offered to non-pregnant students.
(4) A recipient shall treat pregnancy, childbirth, false pregnancy,
termination of pregnancy and recovery therefrom in the same manner and
under the same policies as any other temporary disability with respect
to any medical or hospital benefit, service, plan or policy which such
recipient administers, operates, offers, or participates in with
respect to students admitted to the recipient's educational program or
activity.
(5) In the case of a recipient which does not maintain a leave
policy for its students, or in the case of a student who does not
otherwise qualify for leave under such a policy, a recipient shall
treat pregnancy, childbirth, false pregnancy, termination of pregnancy
and recovery therefrom as a justification for a leave of absence for so
long a period of time as is deemed medically necessary by the student's
physician, at the conclusion of which the student shall be reinstated
to the status which she held when the leave began.

0
16. Section 106.44 is revised to read as follows:

Sec. 106.44 Recipient's response to sexual harassment.

(a) General response to sexual harassment. A recipient with actual
knowledge of sexual harassment in an education program or activity of
the recipient against a person in the United States, must respond
promptly in a manner that is not deliberately indifferent. A recipient
is deliberately indifferent only if its response to sexual harassment
is clearly unreasonable in light of the known circumstances. For the
purposes of this section, Sec. Sec. 106.30, and 106.45, ``education
program or activity'' includes locations, events, or circumstances over
which the recipient exercised substantial control over both the
respondent and the context in which the sexual harassment occurs, and
also includes any building owned or controlled by a student
organization that is officially recognized by a postsecondary
institution. A recipient's response must treat complainants and
respondents equitably by offering supportive measures as defined in
Sec. 106.30 to a complainant, and by following a grievance process
that complies with Sec. 106.45 before the imposition of any
disciplinary sanctions or other actions that are not supportive
measures as defined in Sec. 106.30, against a respondent. The Title IX
Coordinator must promptly contact the complainant to discuss the
availability of supportive measures as defined in Sec. 106.30,
consider the complainant's wishes with respect to supportive measures,
inform the complainant of the availability of supportive measures with
or without the filing of a formal complaint, and explain to the
complainant the process for filing a formal complaint. The Department
may not deem a recipient to have satisfied the recipient's duty to not
be deliberately indifferent under this part based on the recipient's
restriction of rights protected under the U.S. Constitution, including
the First Amendment, Fifth Amendment, and Fourteenth Amendment.
(b) Response to a formal complaint. (1) In response to a formal
complaint, a

[[Page 61319]]

recipient must follow a grievance process that complies with Sec.
106.45. With or without a formal complaint, a recipient must comply
with Sec. 106.44(a).
(2) The Assistant Secretary will not deem a recipient's
determination regarding responsibility to be evidence of deliberate
indifference by the recipient, or otherwise evidence of discrimination
under title IX by the recipient, solely because the Assistant Secretary
would have reached a different determination based on an independent
weighing of the evidence.
(c) Emergency removal. Nothing in this part precludes a recipient
from removing a respondent from the recipient's education program or
activity on an emergency basis, provided that the recipient undertakes
an individualized safety and risk analysis, determines that an
immediate threat to the physical health or safety of any student or
other individual arising from the allegations of sexual harassment
justifies removal, and provides the respondent with notice and an
opportunity to challenge the decision immediately following the
removal. This provision may not be construed to modify any rights under
the Individuals with Disabilities Education Act, Section 504 of the
Rehabilitation Act of 1973, or the Americans with Disabilities Act.
(d) Administrative leave. Nothing in this subpart precludes a
recipient from placing a non-student employee respondent on
administrative leave during the pendency of a grievance process that
complies with Sec. 106.45. This provision may not be construed to
modify any rights under Section 504 of the Rehabilitation Act of 1973
or the Americans with Disabilities Act.

0
17. Section 106.45 is revised to read as follows:

Sec. 106.45 Grievance process for formal complaints of sexual
harassment.

(a) Discrimination on the basis of sex. A recipient's treatment of
a complainant or a respondent in response to a formal complaint of
sexual harassment may constitute discrimination on the basis of sex
under title IX.
(b) Grievance process. For the purpose of addressing formal
complaints of sexual harassment, a recipient's grievance process must
comply with the requirements of this section. Any provisions, rules, or
practices other than those required by this section that a recipient
adopts as part of its grievance process for handling formal complaints
of sexual harassment as defined in Sec. 106.30, must apply equally to
both parties.
(1) Basic requirements for grievance process. A recipient's
grievance process must--
(i) Treat complainants and respondents equitably by providing
remedies to a complainant where a determination of responsibility for
sexual harassment has been made against the respondent, and by
following a grievance process that complies with this section before
the imposition of any disciplinary sanctions or other actions that are
not supportive measures as defined in Sec. 106.30, against a
respondent. Remedies must be designed to restore or preserve equal
access to the recipient's education program or activity. Such remedies
may include the same individualized services described in Sec. 106.30
as ``supportive measures''; however, remedies need not be non-
disciplinary or non-punitive and need not avoid burdening the
respondent;
(ii) Require an objective evaluation of all relevant evidence--
including both inculpatory and exculpatory evidence--and provide that
credibility determinations may not be based on a person's status as a
complainant, respondent, or witness;
(iii) Require that any individual designated by a recipient as a
Title IX Coordinator, investigator, decision-maker, or any person
designated by a recipient to facilitate an informal resolution process,
not have a conflict of interest or bias for or against complainants or
respondents generally or an individual complainant or respondent. A
recipient must ensure that Title IX Coordinators, investigators,
decision-makers, and any person who facilitates an informal resolution
process, receive training on the definition of sexual harassment in
Sec. 106.30, the scope of the recipient's education program or
activity, how to conduct an investigation and grievance process
including hearings, appeals, and informal resolution processes, as
applicable, and how to serve impartially, including by avoiding
prejudgment of the facts at issue, conflicts of interest, and bias. A
recipient must ensure that decision-makers receive training on any
technology to be used at a live hearing and on issues of relevance of
questions and evidence, including when questions and evidence about the
complainant's sexual predisposition or prior sexual behavior are not
relevant, as set forth in paragraph (b)(6) of this section. A recipient
also must ensure that investigators receive training on issues of
relevance to create an investigative report that fairly summarizes
relevant evidence, as set forth in paragraph (b)(5)(vii) of this
section. Any materials used to train Title IX Coordinators,
investigators, decision-makers, and any person who facilitates an
informal resolution process, must not rely on sex stereotypes and must
promote impartial investigations and adjudications of formal complaints
of sexual harassment;
(iv) Include a presumption that the respondent is not responsible
for the alleged conduct until a determination regarding responsibility
is made at the conclusion of the grievance process;
(v) Include reasonably prompt time frames for conclusion of the
grievance process, including reasonably prompt time frames for filing
and resolving appeals and informal resolution processes if the
recipient offers informal resolution processes, and a process that
allows for the temporary delay of the grievance process or the limited
extension of time frames for good cause with written notice to the
complainant and the respondent of the delay or extension and the
reasons for the action. Good cause may include considerations such as
the absence of a party, a party's advisor, or a witness; concurrent law
enforcement activity; or the need for language assistance or
accommodation of disabilities;
(vi) Describe the range of possible disciplinary sanctions and
remedies or list the possible disciplinary sanctions and remedies that
the recipient may implement following any determination of
responsibility;
(vii) State whether the standard of evidence to be used to
determine responsibility is the preponderance of the evidence standard
or the clear and convincing evidence standard, apply the same standard
of evidence for formal complaints against students as for formal
complaints against employees, including faculty, and apply the same
standard of evidence to all formal complaints of sexual harassment;
(viii) Include the procedures and permissible bases for the
complainant and respondent to appeal;
(ix) Describe the range of supportive measures available to
complainants and respondents; and
(x) Not require, allow, rely upon, or otherwise use questions or
evidence that constitute, or seek disclosure of, information protected
under a legally recognized privilege, unless the person holding such
privilege has waived the privilege.
(2) Notice of allegations. (i) Upon receipt of a formal complaint,
a recipient must provide the following written notice to the parties
who are known:
(A) Notice of the recipient's grievance process that complies with
this section,

[[Page 61320]]

including any informal resolution process.
(B) Notice of the allegations of sexual harassment potentially
constituting sexual harassment as defined in Sec. 106.30, including
sufficient details known at the time and with sufficient time to
prepare a response before any initial interview. Sufficient details
include the identities of the parties involved in the incident, if
known, the conduct allegedly constituting sexual harassment under Sec.
106.30, and the date and location of the alleged incident, if known.
The written notice must include a statement that the respondent is
presumed not responsible for the alleged conduct and that a
determination regarding responsibility is made at the conclusion of the
grievance process. The written notice must inform the parties that they
may have an advisor of their choice, who may be, but is not required to
be, an attorney, under paragraph (b)(5)(iv) of this section, and may
inspect and review evidence under paragraph (b)(5)(vi) of this section.
The written notice must inform the parties of any provision in the
recipient's code of conduct that prohibits knowingly making false
statements or knowingly submitting false information during the
grievance process.
(ii) If, in the course of an investigation, the recipient decides
to investigate allegations about the complainant or respondent that are
not included in the notice provided pursuant to paragraph (b)(2)(i)(B)
of this section, the recipient must provide notice of the additional
allegations to the parties whose identities are known.
(3) Dismissal of a formal complaint. (i) The recipient must
investigate the allegations in a formal complaint. If the conduct
alleged in the formal complaint would not constitute sexual harassment
as defined in Sec. 106.30 even if proved, did not occur in the
recipient's education program or activity, or did not occur against a
person in the United States, then the recipient must dismiss the formal
complaint with regard to that conduct for purposes of sexual harassment
under title IX or this part; such a dismissal does not preclude action
under another provision of the recipient's code of conduct.
(ii) The recipient may dismiss the formal complaint or any
allegations therein, if at any time during the investigation or
hearing: A complainant notifies the Title IX Coordinator in writing
that the complainant would like to withdraw the formal complaint or any
allegations therein; the respondent is no longer enrolled or employed
by the recipient; or specific circumstances prevent the recipient from
gathering evidence sufficient to reach a determination as to the formal
complaint or allegations therein.
(iii) Upon a dismissal required or permitted pursuant to paragraph
(b)(3)(i) or (b)(3)(ii) of this section, the recipient must promptly
send written notice of the dismissal and reason(s) therefor
simultaneously to the parties.
(4) Consolidation of formal complaints. A recipient may consolidate
formal complaints as to allegations of sexual harassment against more
than one respondent, or by more than one complainant against one or
more respondents, or by one party against the other party, where the
allegations of sexual harassment arise out of the same facts or
circumstances. Where a grievance process involves more than one
complainant or more than one respondent, references in this section to
the singular ``party,'' ``complainant,'' or ``respondent'' include the
plural, as applicable.
(5) Investigation of a formal complaint. When investigating a
formal complaint and throughout the grievance process, a recipient
must--
(i) Ensure that the burden of proof and the burden of gathering
evidence sufficient to reach a determination regarding responsibility
rest on the recipient and not on the parties provided that the
recipient cannot access, consider, disclose, or otherwise use a party's
records that are made or maintained by a physician, psychiatrist,
psychologist, or other recognized professional or paraprofessional
acting in the professional's or paraprofessional's capacity, or
assisting in that capacity, and which are made and maintained in
connection with the provision of treatment to the party, unless the
recipient obtains that party's voluntary, written consent to do so for
a grievance process under this section (if a party is not an ``eligible
student,'' as defined in 34 CFR 99.3, then the recipient must obtain
the voluntary, written consent of a ``parent,'' as defined in 34 CFR
99.3);
(ii) Provide an equal opportunity for the parties to present
witnesses, including fact and expert witnesses, and other inculpatory
and exculpatory evidence;
(iii) Not restrict the ability of either party to discuss the
allegations under investigation or to gather and present relevant
evidence;
(iv) Provide the parties with the same opportunities to have others
present during any grievance proceeding, including the opportunity to
be accompanied to any related meeting or proceeding by the advisor of
their choice, who may be, but is not required to be, an attorney, and
not limit the choice or presence of advisor for either the complainant
or respondent in any meeting or grievance proceeding; however, the
recipient may establish restrictions regarding the extent to which the
advisor may participate in the proceedings, as long as the restrictions
apply equally to both parties;
(v) Provide, to a party whose participation is invited or expected,
written notice of the date, time, location, participants, and purpose
of all hearings, investigative interviews, or other meetings, with
sufficient time for the party to prepare to participate;
(vi) Provide both parties an equal opportunity to inspect and
review any evidence obtained as part of the investigation that is
directly related to the allegations raised in a formal complaint,
including the evidence upon which the recipient does not intend to rely
in reaching a determination regarding responsibility and inculpatory or
exculpatory evidence whether obtained from a party or other source, so
that each party can meaningfully respond to the evidence prior to
conclusion of the investigation. Prior to completion of the
investigative report, the recipient must send to each party and the
party's advisor, if any, the evidence subject to inspection and review
in an electronic format or a hard copy, and the parties must have at
least 10 days to submit a written response, which the investigator will
consider prior to completion of the investigative report. The recipient
must make all such evidence subject to the parties' inspection and
review available at any hearing to give each party equal opportunity to
refer to such evidence during the hearing, including for purposes of
cross-examination; and
(vii) Create an investigative report that fairly summarizes
relevant evidence and, at least 10 days prior to a hearing (if a
hearing is required under this section or otherwise provided) or other
time of determination regarding responsibility, send to each party and
the party's advisor, if any, the investigative report in an electronic
format or a hard copy, for their review and written response.
(6) Hearings. (i) For postsecondary institutions, the recipient's
grievance process must provide for a live hearing. At the live hearing,
the decision-maker(s) must permit each party's advisor to ask the other
party and any witnesses all relevant questions and follow-up questions,
including those challenging credibility. Such cross-examination at the
live hearing must be conducted directly, orally, and in real

[[Page 61321]]

time by the party's advisor of choice and never by a party personally,
notwithstanding the discretion of the recipient under paragraph
(b)(5)(iv) of this section to otherwise restrict the extent to which
advisors may participate in the proceedings. At the request of either
party, the recipient must provide for the live hearing to occur with
the parties located in separate rooms with technology enabling the
decision-maker(s) and parties to simultaneously see and hear the party
or the witness answering questions. Only relevant cross-examination and
other questions may be asked of a party or witness. Before a
complainant, respondent, or witness answers a cross-examination or
other question, the decision-maker(s) must first determine whether the
question is relevant and explain any decision to exclude a question as
not relevant. If a party does not have an advisor present at the live
hearing, the recipient must provide without fee or charge to that
party, an advisor of the recipient's choice, who may be, but is not
required to be, an attorney, to conduct cross-examination on behalf of
that party. Questions and evidence about the complainant's sexual
predisposition or prior sexual behavior are not relevant, unless such
questions and evidence about the complainant's prior sexual behavior
are offered to prove that someone other than the respondent committed
the conduct alleged by the complainant, or if the questions and
evidence concern specific incidents of the complainant's prior sexual
behavior with respect to the respondent and are offered to prove
consent. Live hearings pursuant to this paragraph may be conducted with
all parties physically present in the same geographic location or, at
the recipient's discretion, any or all parties, witnesses, and other
participants may appear at the live hearing virtually, with technology
enabling participants simultaneously to see and hear each other.
Recipients must create an audio or audiovisual recording, or
transcript, of any live hearing and make it available to the parties
for inspection and review.
(ii) For recipients that are elementary and secondary schools, and
other recipients that are not postsecondary institutions, the
recipient's grievance process may, but need not, provide for a hearing.
With or without a hearing, after the recipient has sent the
investigative report to the parties pursuant to paragraph (b)(5)(vii)
of this section and before reaching a determination regarding
responsibility, the decision-maker(s) must afford each party the
opportunity to submit written, relevant questions that a party wants
asked of any party or witness, provide each party with the answers, and
allow for additional, limited follow-up questions from each party. With
or without a hearing, questions and evidence about the complainant's
sexual predisposition or prior sexual behavior are not relevant, unless
such questions and evidence about the complainant's prior sexual
behavior are offered to prove that someone other than the respondent
committed the conduct alleged by the complainant, or if the questions
and evidence concern specific incidents of the complainant's prior
sexual behavior with respect to the respondent and are offered to prove
consent. The decision-maker(s) must explain to the party proposing the
questions any decision to exclude a question as not relevant.
(7) Determination regarding responsibility. (i) The decision-
maker(s), who cannot be the same person(s) as the Title IX Coordinator
or the investigator(s), must issue a written determination regarding
responsibility. To reach this determination, the recipient must apply
the standard of evidence described in paragraph (b)(1)(vii) of this
section.
(ii) The written determination must include--
(A) Identification of the allegations potentially constituting
sexual harassment as defined in Sec. 106.30;
(B) A description of the procedural steps taken from the receipt of
the formal complaint through the determination, including any
notifications to the parties, interviews with parties and witnesses,
site visits, methods used to gather other evidence, and hearings held;
(C) Findings of fact supporting the determination;
(D) Conclusions regarding the application of the recipient's code
of conduct to the facts;
(E) A statement of, and rationale for, the result as to each
allegation, including a determination regarding responsibility, any
disciplinary sanctions the recipient imposes on the respondent, and
whether remedies designed to restore or preserve equal access to the
recipient's education program or activity will be provided by the
recipient to the complainant; and
(F) The recipient's procedures and permissible bases for the
complainant and respondent to appeal.
(iii) The recipient must provide the written determination to the
parties simultaneously. The determination regarding responsibility
becomes final either on the date that the recipient provides the
parties with the written determination of the result of the appeal, if
an appeal is filed, or if an appeal is not filed, the date on which an
appeal would no longer be considered timely.
(iv) The Title IX Coordinator is responsible for effective
implementation of any remedies.
(8) Appeals. (i) A recipient must offer both parties an appeal from
a determination regarding responsibility, and from a recipient's
dismissal of a formal complaint or any allegations therein, on the
following bases:
(A) Procedural irregularity that affected the outcome of the
matter;
(B) New evidence that was not reasonably available at the time the
determination regarding responsibility or dismissal was made, that
could affect the outcome of the matter; and
(C) The Title IX Coordinator, investigator(s), or decision-maker(s)
had a conflict of interest or bias for or against complainants or
respondents generally or the individual complainant or respondent that
affected the outcome of the matter.
(ii) A recipient may offer an appeal equally to both parties on
additional bases.
(iii) As to all appeals, the recipient must:
(A) Notify the other party in writing when an appeal is filed and
implement appeal procedures equally for both parties;
(B) Ensure that the decision-maker(s) for the appeal is not the
same person as the decision-maker(s) that reached the determination
regarding responsibility or dismissal, the investigator(s), or the
Title IX Coordinator;
(C) Ensure that the decision-maker(s) for the appeal complies with
the standards set forth in paragraph (b)(1)(iii) of this section;
(D) Give both parties a reasonable, equal opportunity to submit a
written statement in support of, or challenging, the outcome;
(E) Issue a written decision describing the result of the appeal
and the rationale for the result; and
(F) Provide the written decision simultaneously to both parties.
(9) Informal resolution. A recipient may not require as a condition
of enrollment or continuing enrollment, or employment or continuing
employment, or enjoyment of any other right, waiver of the right to an
investigation and adjudication of formal complaints of sexual
harassment consistent with this section. Similarly, a recipient may not
require the parties to participate in an informal resolution process
under this section and may not offer an informal

[[Page 61322]]

resolution process unless a formal complaint is filed. However, at any
time prior to reaching a determination regarding responsibility the
recipient may facilitate an informal resolution process, such as
mediation, that does not involve a full investigation and adjudication,
provided that the recipient--
(i) Provides to the parties a written notice disclosing: The
allegations, the requirements of the informal resolution process
including the circumstances under which it precludes the parties from
resuming a formal complaint arising from the same allegations,
provided, however, that at any time prior to agreeing to a resolution,
any party has the right to withdraw from the informal resolution
process and resume the grievance process with respect to the formal
complaint, and any consequences resulting from participating in the
informal resolution process, including the records that will be
maintained or could be shared;
(ii) Obtains the parties' voluntary, written consent to the
informal resolution process; and
(iii) Does not offer or facilitate an informal resolution process
to resolve allegations that an employee sexually harassed a student.
(10) Recordkeeping. (i) A recipient must maintain for a period of
seven years records of--
(A) Each sexual harassment investigation including any
determination regarding responsibility and any audio or audiovisual
recording or transcript required under paragraph (b)(6)(i) of this
section, any disciplinary sanctions imposed on the respondent, and any
remedies provided to the complainant designed to restore or preserve
equal access to the recipient's education program or activity;
(B) Any appeal and the result therefrom;
(C) Any informal resolution and the result therefrom; and
(D) All materials used to train Title IX Coordinators,
investigators, decision-makers, and any person who facilitates an
informal resolution process. A recipient must make these training
materials publicly available on its website, or if the recipient does
not maintain a website the recipient must make these materials
available upon request for inspection by members of the public.
(ii) For each response required under Sec. 106.44, a recipient
must create, and maintain for a period of seven years, records of any
actions, including any supportive measures, taken in response to a
report or formal complaint of sexual harassment. In each instance, the
recipient must document the basis for its conclusion that its response
was not deliberately indifferent, and document that it has taken
measures designed to restore or preserve equal access to the
recipient's education program or activity. If a recipient does not
provide a complainant with supportive measures, then the recipient must
document the reasons why such a response was not clearly unreasonable
in light of the known circumstances. The documentation of certain bases
or measures does not limit the recipient in the future from providing
additional explanations or detailing additional measures taken.

0
18. Section 106.46 is revised to read as follows:

Sec. 106.46 Severability.

Sec. 106.47 [Removed]

0
19. Remove Sec. 106.47.

Sec. 106.48 [Removed]

0
20. Remove Sec. 106.48.

0
21. Section 106.51 is amended by revising paragraph (b)(6) to read as
follows:

Sec. 106.51 Employment.

* * * * *
(b) * * *
(6) Granting and return from leaves of absence, leave for
pregnancy, childbirth, false pregnancy, termination of pregnancy, leave
for persons of either sex to care for children or dependents, or any
other leave;
* * * * *

0
22. Section 106.57 is revised to read as follows:

Sec. 106.57 Marital or parental status.

(a) General. A recipient shall not apply any policy or take any
employment action:
(1) Concerning the potential marital, parental, or family status of
an employee or applicant for employment which treats persons
differently on the basis of sex; or
(2) Which is based upon whether an employee or applicant for
employment is the head of household or principal wage earner in such
employee's or applicant's family unit.
(b) Pregnancy. A recipient shall not discriminate against or
exclude from employment any employee or applicant for employment on the
basis of pregnancy, childbirth, false pregnancy, termination of
pregnancy, or recovery therefrom.
(c) Pregnancy as a temporary disability. A recipient shall treat
pregnancy, childbirth, false pregnancy, termination of pregnancy, and
recovery therefrom and any temporary disability resulting therefrom as
any other temporary disability for all job related purposes, including
commencement, duration and extensions of leave, payment of disability
income, accrual of seniority and any other benefit or service, and
reinstatement, and under any fringe benefit offered to employees by
virtue of employment.
(d) Pregnancy leave. In the case of a recipient which does not
maintain a leave policy for its employees, or in the case of an
employee with insufficient leave or accrued employment time to qualify
for leave under such a policy, a recipient shall treat pregnancy,
childbirth, false pregnancy, termination of pregnancy and recovery
therefrom as a justification for a leave of absence without pay for a
reasonable period of time, at the conclusion of which the employee
shall be reinstated to the status which she held when the leave began
or to a comparable position, without decrease in rate of compensation
or loss of promotional opportunities, or any other right or privilege
of employment.

0
23. Section 106.60 is revised to read as follows:

Sec. 106.60 Pre-employment inquires.

(a) Marital status. A recipient shall not make pre-employment
inquiry as to the marital status of an applicant for employment,
including whether such applicant is ``Miss or Mrs.''
(b) Sex. A recipient may make pre-employment inquiry as to the sex
of an applicant for employment, but only if such inquiry is made
equally of such applicants of both sexes and if the results of such
inquiry are not used in connection with discrimination prohibited by
this part.

0
24. Section 106.71 is revised to read as follows:

Sec. 106.71 Retaliation.

(a) Retaliation prohibited. No recipient or other person may
intimidate, threaten, coerce, or discriminate against any individual
for the purpose of interfering with any right or privilege secured by
title IX or this part, or because the individual has made a report or
complaint, testified, assisted, or participated or refused to
participate in any manner in an investigation, proceeding, or hearing
under this part. Intimidation, threats, coercion, or

[[Page 61323]]

discrimination, including charges against an individual for code of
conduct violations that do not involve sex discrimination or sexual
harassment, but arise out of the same facts or circumstances as a
report or complaint of sex discrimination, or a report or formal
complaint of sexual harassment, for the purpose of interfering with any
right or privilege secured by title IX or this part, constitutes
retaliation. The recipient must keep confidential the identity of any
individual who has made a report or complaint of sex discrimination,
including any individual who has made a report or filed a formal
complaint of sexual harassment, any complainant, any individual who has
been reported to be the perpetrator of sex discrimination, any
respondent, and any witness, except as may be permitted by the FERPA
statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99, or as
required by law, or to carry out the purposes of 34 CFR part 106,
including the conduct of any investigation, hearing, or judicial
proceeding arising thereunder. Complaints alleging retaliation may be
filed according to the grievance procedures for sex discrimination
required to be adopted under Sec. 106.8(c).
(b) Specific circumstances. (1) The exercise of rights protected
under the First Amendment does not constitute retaliation prohibited
under paragraph (a) of this section.
(2) Charging an individual with a code of conduct violation for
making a materially false statement in bad faith in the course of a
grievance proceeding under this part does not constitute retaliation
prohibited under paragraph (a) of this section, provided, however, that
a determination regarding responsibility, alone, is not sufficient to
conclude that any party made a materially false statement in bad faith.

0
25. Section 106.81 is revised to read as follows:

Sec. 106.81 Procedures.

The procedural provisions applicable to title VI of the Civil
Rights Act of 1964 are hereby adopted and incorporated herein by
reference. These procedures may be found at 34 CFR 100.6-100.11 and 34
CFR part 101. The definitions in Sec. 106.30 do not apply to 34 CFR
100.6-100.11 and 34 CFR part 101.

[FR Doc. 2026-19929 Filed 9-28-26; 8:45 am]
BILLING CODE 4000-01-P

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