Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance
Federal RegisterMay 19, 2020
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DEPARTMENT OF EDUCATION
34 CFR Part 106
[Docket ID ED-2018-OCR-0064]
RIN 1870-AA14
Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance
AGENCY:
Office for Civil Rights, Department of Education.
ACTION:
Final rule.
SUMMARY:
The Secretary of Education amends the regulations implementing Title IX of the Education Amendments of 1972 (Title IX). The final regulations specify how recipients of Federal financial assistance covered by Title IX, including elementary and secondary schools as well as postsecondary institutions, (hereinafter collectively referred to as “recipients” or “schools”), must respond to allegations of sexual harassment consistent with Title IX's prohibition against sex discrimination. These regulations are intended to effectuate Title IX's prohibition against sex discrimination by requiring recipients to address sexual harassment as a form of sex discrimination in education programs or activities. The final regulations obligate recipients to respond promptly and supportively to persons alleged to be victimized by sexual harassment, resolve allegations of sexual harassment promptly and accurately under a predictable, fair grievance process that provides due process protections to alleged victims and alleged perpetrators of sexual harassment, and effectively implement remedies for victims. The final regulations also clarify and modify Title IX regulatory requirements regarding remedies the Department may impose on recipients for Title IX violations, the intersection between Title IX, Constitutional protections, and other laws, the designation by each recipient of a Title IX Coordinator to address sex discrimination including sexual harassment, the dissemination of a recipient's non-discrimination policy and contact information for a Title IX Coordinator, the adoption by recipients of grievance procedures and a grievance process, how a recipient may claim a religious exemption, and prohibition of retaliation for exercise of rights under Title IX.
DATES:
These regulations are effective August 14, 2020.
FOR FURTHER INFORMATION CONTACT:
Alejandro Reyes, U.S. Department of Education, 400 Maryland Avenue SW, Room 4E308, Washington, DC 20202. Telephone: (202) 453-6639. Email:
Alejandro.Reyes@ed.gov
.
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
Table of Contents
Effective Date
Executive Summary
Purpose of This Regulatory Action
Summary of the Major Provisions of This Regulatory Action
Timing, Comments, and Changes
Adoption and Adaption of the Supreme Court's Framework To Address Sexual Harassment
Differences Between Standards in Department Guidance and These Final Regulations
Definition of Sexual Harassment
Actual Knowledge
Deliberate Indifference
Role of Due Process in the Grievance Process
Due Process Principles
Summary of § 106.45
Similarities and Differences Between the § 106.45 Grievance Process and Department Guidance
Public Comment
Analysis of Comments and Changes
Personal Stories
Notice and Comment Rulemaking Rather Than Guidance
General Support and Opposition
Commonly Cited Sources
Data—Overview
Prevalence Data—Elementary and Secondary Schools
Prevalence Data—Postsecondary Institutions
Prevalence Data—Women
Prevalence Data—Men
Prevalence Data—LGBTQ Persons
Prevalence Data—Persons of Color
Prevalence Data—Individuals With Disabilities
Prevalence Data—Immigrants
Impact Data
Cost Data
Reporting Data
Stereotypes/Punishment for “Lying”
False Allegations
General Support and Opposition for Supreme Court Framework Adopted in § 106.44(a)
General Support and Opposition for the Grievance Process in § 106.45
Section 106.30 Definitions
Actual Knowledge
Support for Actual Knowledge Requirement and General Safety Concerns
Student Populations Facing Additional Barriers to Reporting
Chilling Reporting
Generally Burdening Complainants
Employees' Obligations
Elementary and Secondary Schools
Large Schools
Miscellaneous Comments and Questions
Complainant
Consent
Elementary and Secondary Schools
Formal Complaint
Support for Formal Complaint Definition
No Formal Complaint Required To Report Sexual Harassment
Burden on Complainants To File a Formal Complaint
Anonymous Reporting and Anonymous Filing of Formal Complaints
Officials Other Than the Title IX Coordinator Filing a Formal Complaint
Complexity of a Document Labeled “Formal Complaint”
Parents' and Guardians' Rights To File a Formal Complaint
Methods of Reporting and Methods of Filing a Formal Complaint
Miscellaneous Concerns About the Formal Complaint Definition
Postsecondary Institution
Respondent
Sexual Harassment
Overall Support and Opposition for the § 106.30 Sexual Harassment Definition
Prong (1)
Quid pro quo
Prong (2)
Davis
standard
Davis
Standard Generally
So Severe
And Pervasive
Objectively Offensive
Effectively Denies Equal Access
Prong (3) Sexual Assault, Dating Violence, Domestic Violence, Stalking
Gender-Based Harassment
Supportive Measures
Overall Support and Opposition
No-Contact Orders
Other Language/Terminology Comments
Section 106.44 Recipient's Response to Sexual Harassment, Generally
Section 106.44(a) “Actual Knowledge”
The Recipient's Self-Interest
Burdening the Complainant
Elementary and Secondary Schools
Confusion for Employees
Intersection Between Actual Knowledge and Deliberate Indifference
Modeling Reporting on the Military System
Section 106.44(a) “education program or activity”
General Support and Opposition for “Education Program or Activity” as a Jurisdictional Condition
Online Sexual Harassment
Consistency With Title IX Statutory Text
Constitutional Equal Protection
Institutional Autonomy and Litigation Risk
Requests for Clarification
Section 106.44(a) “Against a Person in the U.S.”
Impact on Study Abroad Participants
Consistency With Federal Law and Departmental Practice
Constitutional Equal Protection
Impact on International or Foreign Exchange Students in the U.S.
Section 106.44(a) Deliberate Indifference Standard
Recipient's Response in Specific Circumstances
Section 106.44(b) Proposed “Safe Harbors,” Generally
Section 106.44(b)(1) Mandate To Investigate Formal Complaints and Safe Harbor
Proposed § 106.44(b)(2) Reports by Multiple Complainants of Conduct by
Same Respondent [Removed in Final Regulations]
Proposed § 106.44(b)(3) Supportive Measures Safe Harbor in Absence of a Formal Complaint [removed in final regulations]
Section 106.44(b)(2) OCR Will Not Re-Weigh the Evidence
Additional Rules Governing Recipients' Responses to Sexual Harassment
Section 106.44(c) Emergency Removal
Overall Support and Opposition to Emergency Removals
Intersection With the IDEA, Section 504, and ADA
Post-Removal Challenges
No Stated Time Limitation for the Emergency Removal
“Removal”
“Individualized Safety and Risk Analysis”
“Provides the Respondent With Notice and an Opportunity To Challenge the Decision Immediately Following the Removal”
How OCR Will Enforce the Provision
Section 106.44(d) Administrative Leave
Section 106.45 Recipient's Response to Formal Complaints
General Requirements for § 106.45 Grievance Process
Section 106.45(a) Treatment of Complainants or Respondents Can Violate Title IX
Section 106.45(b)(1)(i) Equitable Treatment of Complainants and Respondents
Section 106.45(b)(1)(ii) Objective Evaluation of All Relevant Evidence
Section 106.45(b)(1)(iii) Impartiality and Mandatory Training of Title IX Personnel; Directed Question 4 (Training)
Section 106.45(b)(1)(iv) Presumption of Non-Responsibility
Purpose of the Presumption
Students of Color, LGBTQ Students, and Individuals With Disabilities
The Complainant's Right to Due Process Protections
False Allegations
Inaccurate Findings of Non-Responsibility
Recipients Should Apply Dual Presumptions or No Presumption
The Adversarial Nature of the Grievance Process
Supportive Measures
Miscellaneous Concerns
Section 106.45(b)(1)(v) Reasonably Prompt Time Frames
Support
Opposition—Lack of Specified Time Limit
Effects on Recipients
Concerns Regarding Concurrent Law Enforcement Activity
Alternative Proposals
Clarification Requests
Section 106.45(b)(1)(vi) Describe Range or List of Possible Sanctions and Remedies
Section 106.45(b)(1)(vii) Describe Standard of Evidence
Section 106.45(b)(1)(viii) Procedures and Bases for Appeal
Section 106.45(b)(1)(ix) Describe Range of Supportive Measures
Section 106.45(b)(1)(x) Privileged Information
Written Notice of Allegations
Section 106.45(b)(2) Written Notice of Allegations
Retaliation
Warning Against False Statements
Investigative Process
Administrative Burden on Schools
Elementary and Secondary Schools
Confidentiality and Anonymity for Complainants
General Modification Suggestions
General Clarification Requests
Dismissal and Consolidation of Formal Complaints
Section 106.45(b)(3)(i) Mandatory Dismissal of Formal Complaints
Section 106.45(b)(3)(ii)-(iii) Discretionary Dismissals/Notice of Dismissal
Section 106.45(b)(4) Consolidation of Formal Complaints
Investigation
Section 106.45(b)(5)(i) Burdens of Proof and Gathering Evidence Rest on the Recipient
Section 106.45(b)(5)(ii) Equal Opportunity To Present Witnesses and Other Inculpatory/Exculpatory Evidence
Section 106.45(b)(5)(iii) Recipients Must Not Restrict Ability of Either Party To Discuss Allegations or Gather and Present Relevant Evidence
Section 106.45(b)(5)(iv) Advisors of Choice
Supporting Presence and Participation of Advisors
Fairness Considerations
Conflicts of Interest, Confidentiality, and Union Issues
Modification Requests
Section 106.45(b)(5)(v) Written Notice of Hearings, Meetings, and Interviews
Section 106.45(b)(5)(vi) Inspection and Review of Evidence Directly Related to the Allegations, and Directed Question 7
Section 106.45(b)(5)(vii) An Investigative Report that Fairly Summarizes Relevant Evidence
Hearings
Cross-Examination Generally
Support for Cross-Examination
Retraumatizing Complainants
Reducing Truth-Seeking
Demeanor Evaluation Is Unreliable
Trauma Responses
Reliance on Rape Myths
Cross-Examination as a Due Process Requirement
Discourages Participation
Financial Inequities
Changes the Nature of the Grievance Process
Section 106.45(b)(6)(ii) Should Apply to Postsecondary Institutions
False Accusations Occur Infrequently
Excluding Cross-Examination Questions
Section 106.45(b)(6)(i) Postsecondary Institution Recipients Must Provide Live Hearing With Cross-Examination
Self-Representation Versus Cross-Examination Conducted by Advisors
Explain Decision to Exclude Questions
No Reliance on Statements of a Party Who Does Not Submit to Cross-Examination
Rape Shield Protections
Separate Rooms for Cross-Examination Facilitated by Technology; Directed Question 9
Discretion To Hold Live Hearings and Control Conduct of Hearings
Section 106.45(b)(6)(ii) Elementary and Secondary School Recipients May Require Hearing and Must Have Opportunity To Submit Written Questions
Determinations Regarding Responsibility
Section 106.45(b)(7)(i) Single Investigator Model Prohibited
Benefits of Ending the Single Investigator Model
Consistency with Case Law
Alternative Approaches to Ending Single Investigator Model
Chilling Reporting and Other Harmful Effects
Respecting the Roles of Title IX Coordinators and Investigators
Preserving Recipient Autonomy
Consistency With Federal Law and Employment Practices
Limiting the Prohibition of the Single Investigator Model
Requests for Clarification
Section 106.45(b)(7)(i) Standard of Evidence and Directed Question 6
Mandating a Higher Standard of Evidence
Supporting § 106.45(b)(7)(i)
One-Sided Condition on Choice of Evidentiary Standard
Same Evidentiary Standard in Student and Faculty Cases
Requiring the Preponderance of the Evidence Standard
Improving Accuracy of Outcomes
Safety Concerns
Consistency of Standards of Evidence Across Recipients
Standards of Evidence Below the Preponderance of the Evidence
Questioning the Department's Legal Authority
Alternative Approaches and Clarification Requests
Section 106.45(b)(7)(ii) Written Determination Regarding Responsibility Must Include Certain Details
Section 106.45(b)(7)(iii) Timing of When the Decision Becomes Final
[§ 106.45(b)(7)(iv) Title IX Coordinator Responsible for Effective Implementation of Remedies: Addressed Under § 106.45(b)(7)(iii)]
Transcript Notations
Appeals
Section 106.45(b)(8) Appeals
Informal Resolution
Section 106.45(b)(9) Informal Resolution
Supporting and Expanding Informal Resolution
Terminology Clarifications
Written Notice Implications
Voluntary Consent
Safety Concerns Based on Confidentiality
Consistency With Other Law and Practice
Training Requirements
Non-Binding Informal Resolution
Survivor-Oriented Protections
Restorative Justice
Avoiding Formal Process
Electronic Disclosures
Expulsion Through Informal Resolution
Clarification Requests
Recordkeeping
Section 106.45(b)(10) Recordkeeping and Directed Question 8
Clarifying Amendments to Existing Regulations
Section 106.3(a) Remedial Action
Section 106.6(d)(1) First Amendment
Section 106.6(d)(2) Due Process
Section 106.6(d)(3) Other Constitutional Rights
Section 106.6(e) FERPA
Background
Comments, Discussion, and Changes
Section 106.6(f) Title VII and Directed Question 3 (Application to Employees)
Section 106.6(g) Exercise of Rights by Parents/Guardians
Section 106.6(h) Preemptive Effect
Section 106.8(a) Designation of Coordinator
Section 106.8(b) Dissemination of Policy
Removal of 34 CFR 106.9(c)
List of Publications
Professional Organizations
Parents of Elementary and Secondary School Students
Subjectivity in Publications' Implication of Discrimination
Judicial Requirements for Sex Discrimination
Implicit Forms of Sex Discrimination
Analogous Provisions in Other Laws
Suggested Modifications
Section 106.8(c) Adoption and Publication of Grievance Procedures
Section 106.8(d) Application Outside the United States
Section 106.12 Educational Institutions Controlled by a Religious Organization
Directed Questions
Directed Question 1: Application to Elementary and Secondary Schools
Directed Question 2: Application Based on Type of Recipient or Age of Parties
Directed Question 5: Individuals With Disabilities
Miscellaneous
Executive Orders and Other Requirements
Length of Public Comment Period/Requests for Extension
Conflicts With First Amendment, Constitutional Confirmation, International Law
Clery Act
Background
Comments, Discussion, and Changes
Different Standards for Other Harassment
Spending Clause
Litigation Risk
Effective Date
Retaliation
Section 106.71 Retaliation Prohibited
Severability
Regulatory Impact Analysis (RIA)
Costs of Sexual Harassment and Assault
Overall Net Effects/Characterization of Savings
Motivation for Rulemaking
The Department's Model and Baseline Assumptions
Data Sources
Other
Section 106.44(a) Supportive Measures
Section 106.45(b)(1)(iii) Title IX Coordinators, Investigators, and Decision-Makers Must Be Properly Trained
Section 106.45(b)(5) Investigation of Formal Complaints
Section 106.45(b)(6) Hearings
Section 106.45(b)(7) Determinations Regarding Responsibility
Section 106.45(b)(8) Appeals
Section 106.45(b)(9) Informal Resolution
Executive Orders 12866, 13563, and 13771
Regulatory Impact Analysis
Need for Regulatory Action
Discussion of Costs, Benefits, and Transfers
Regulatory Alternatives Considered
Accounting Statement
Regulatory Flexibility Act
Paperwork Reduction Act of 1995
Accessible Format
Electronic Access to This Document
Effective Date
On March 13, 2020, the President of the United States declared that a national emergency concerning the novel coronavirus disease (COVID-19) outbreak began on March 1, 2020, as stated in “Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak,” Proclamation 9994 of March 13, 2020,
Federal Register
Vol. 85, No. 53 at 15337-38. The Department appreciates that exigent circumstances exist as a result of the COVID-19 national emergency, and that these exigent circumstances require great attention and care on the part of States, local governments, and recipients of Federal financial assistance. The Department recognizes the practical necessity of allowing recipients of Federal financial assistance time to plan for implementing these final regulations, including to the extent necessary, time to amend their policies and procedures necessary to comply. Taking into account this national emergency, as well as consideration of public comments about an effective date as discussed in the “Effective Date” subsection of the “Miscellaneous” section of this preamble, the Department has determined that these final regulations are effective August 14, 2020.
Executive Summary
Purpose of This Regulatory Action
Enacted in 1972, Title IX prohibits discrimination on the basis of sex in education programs and activities that receive Federal financial assistance.
1
In its 1979 opinion
Cannon
v.
University of Chicago,
2
the Supreme Court stated that the objectives of Title IX are two-fold: first, to “avoid the use of Federal resources to support discriminatory practices” and second, to “provide individual citizens effective protection against those practices.”
3
The U.S. Department of Education (the “Department” or “we”) may issue rules effectuating the dual purposes of Title IX.
4
We refer herein to Title IX's prohibition on sex discrimination and purposes as described by the Supreme Court as Title IX's non-discrimination mandate.
1
20 U.S.C. 1681 (“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .”).
2
441 U.S. 677 (1979).
3
Cannon
v.
Univ. of Chicago,
441 U.S. 677, 704 (1979).
4
20 U.S.C. 1682 (“Each Federal department and agency which is empowered to extend Federal financial assistance to any education program or activity . . . is authorized and directed to effectuate the provisions of section 1681 of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken.”).
The Department's predecessor, the Department of Health, Education, and Welfare (HEW), first promulgated regulations under Title IX, effective in 1975.
5
Those regulations reinforced Title IX's non-discrimination mandate, addressing prohibition of sex discrimination in hiring, admissions, athletics, and other aspects of recipients' education programs or activities. The 1975 regulations also required recipients to designate an employee to coordinate the recipient's efforts to comply with Title IX and to adopt and publish grievance procedures providing for prompt and equitable resolution of complaints that a recipient is discriminating based on sex.
5
40 FR 24128 (June 4, 1975) (codified at 45 CFR part 86). In 1980, Congress created the United States Department of Education. Public Law 96-88, sec. 201, 93 Stat. 669, 671 (1979); Exec. Order No. 12212, 45 FR 29557 (May 2, 1980). By operation of law, all of HEW's determinations, rules, and regulations continued in effect and all functions of HEW's Office for Civil Rights, with respect to educational programs, were transferred to the Secretary of Education. 20 U.S.C. 3441(a)(3). The regulations implementing Title IX were recodified without substantive change in 34 CFR part 106. 45 FR 30802, 30955-65 (May 9, 1980).
When HEW issued its regulations in 1975, the Federal courts had not yet addressed recipients' Title IX obligations with respect to sexual harassment as a form of sex discrimination. In the decades since HEW issued the 1975 regulations, the Department has not promulgated any Title IX regulations to address sexual harassment as a form of sex discrimination. Beginning in 1997, the Department addressed this subject through a series of guidance documents, most notably the 2001 Guidance
6
(which revised similar guidance issued in 1997
7
), the withdrawn 2011 Dear Colleague Letter,
8
the withdrawn 2014 Q&A,
9
and the 2017 Q&A.
10
The Department understands that agency guidance is not intended to represent legal obligations; however, we also acknowledge that in part because the Title IX statute and the Department's implementing regulations have (until these final regulations) not addressed sexual harassment, recipients and the Department have relied on the Department's guidance to set expectations about how recipients should respond to sexual harassment and how the Department investigates recipients for possible Title IX violations with respect to responding to sexual harassment.
11
These final regulations impose, for the first time, legally binding rules on recipients with respect to responding to sexual harassment, and the nature of the legal obligations imposed under these final regulations is similar in some ways, and different in some ways, to the way the Department approached this subject in its guidance documents. Those similarities and differences are explained throughout this preamble, including in the “Adoption and Adaption of the Supreme Court's Framework to Address Sexual Harassment” and “Role of Due Process in the Grievance Process” sections of this preamble.
6
U.S. Dep't. of Education, Office for Civil Rights,
Revised Guidance on Sexual Harassment: Harassment of Students by School Employees, Other Students, or Third Parties
(Jan. 19, 2001) (hereinafter, “2001 Guidance”),
https://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf
.
7
U.S. Dep't. of Education, Office for Civil Rights,
Sexual Harassment Guidance: Harassment of Students By School Employees, Other Students, or Third Parties,
62 FR 12034 (Mar. 13, 1997) (hereinafter, “1997 Guidance”),
https://www2.ed.gov/about/offices/list/ocr/docs/sexhar01.html#skipnav2
.
8
U.S. Dep't. of Education, Office for Civil Rights,
Dear Colleague Letter: Sexual Violence
(April 4, 2011) (hereinafter “2011 Dear Colleague Letter”),
https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf
,
withdrawn by,
U.S. Dep't. of Education, Office for Civil Rights,
Dear Colleague Letter
(Sept. 22, 2017),
https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf
.
9
U.S. Dep't. of Education, Office for Civil Rights,
Questions and Answers on Title IX and Sexual Violence
(April 29, 2014) (hereinafter “2014 Q&A”),
https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf
,
withdrawn by,
U.S. Dep't. of Education, Office for Civil Rights,
Dear Colleague Letter
(Sept. 22, 2017),
https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf
.
10
U.S. Dep't. of Education, Office for Civil Rights,
Q&A on Campus Sexual Misconduct
(Sept. 22, 2017) (hereinafter, “2017 Q&A”),
https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf
.
11
For example, OCR found numerous institutions in violation of Title IX for failing to adopt the preponderance of the evidence standard in its investigations of sexual harassment, even though the notion that the preponderance of the evidence standard is the only standard that might be applied under Title IX is set forth in the 2011 Dear Colleague Letter and not in the Title IX statute, current regulations, or other guidance.
E.g.,
U.S. Dep't. of Education, Office for Civil Rights, Letter of Findings to Harvard Law School 7 (Dec. 10, 2014) (“Harvard Law Letter”),
https://www2.ed.gov/documents/press-releases/harvard-law-letter.pdf
(“[I]n order for a recipient's grievance procedures to be consistent with the Title IX evidentiary standard, the recipient must use a preponderance of the evidence standard for investigating allegations of sexual harassment, including sexual assault/violence.”) OCR in its letter of findings against Harvard Law School noted that Harvard's procedures provide that “formal disciplinary sanctions shall be imposed only upon clear and convincing evidence.” Harvard Law Letter at 10. OCR found the following: “This higher standard of proof was inconsistent with the preponderance of the evidence standard required by Title IX for investigating allegations of sexual harassment or violence.”
Id.; see also
U.S. Dep't. of Education, Office for Civil Rights, Letter of Findings to S. Methodist Univ. 4 (Dec. 11, 2014),
https://www2.ed.gov/documents/press-releases/southern-methodist-university-letter.pdf
; U.S. Dep't. of Education, Office for Civil Rights, Letter of Findings to Princeton Univ. 6, 11, 18 (Nov. 5, 2014),
https://www2.ed.gov/documents/press-releases/princeton-letter.pdf
; U.S. Dep't. of Education, Office for Civil Rights, Letter of Findings to Tufts Univ. 5 (Apr. 28, 2014),
https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/01102089-a.pdf
; U.S. Dep't. of Education, Office for Civil Rights, Letter of Findings to Yale Univ. 4-5 (June 15, 2012),
https://www2.ed.gov/about/offices/list/ocr/docs/investigations/01112027-a.pdf
. Many recipients changed their Title IX policies and procedures to conform to the 2001 Guidance, and then to the 2011 Dear Colleague Letter, in part based on OCR enforcement actions that found recipients in violation for failing to comport with interpretations of Title IX found only in guidance.
E.g.,
Blair A. Baker,
When Campus Sexual Misconduct Policies Violate Due Process Rights,
26 Cornell J. of Law & Pub. Pol'y 533, 542 (2016) (The 2011 Dear Colleague Letter has “forced universities to change their former policies drastically, with regards to their specific procedures as well as the standard of proof, out of fear that the Department of Education will pursue their school for a violation of Title IX. In sum, the Dear Colleague Letter applied pressure on colleges to maintain a victim-friendly environment, which is admirable and necessary, but in turn has created a situation that can be insensitive to the accused and `tilted in favor of the alleged victim.' These situations do not have to be mutually exclusive; and there must be a solution in which victim-friendly is not synonymous with procedurally adverse to respondents.”) (internal citations omitted); Lauren P. Schroeder,
Cracks in the Ivory Tower: How the Campus Sexual Violence Elimination Act Can Protect Students from Sexual Assault,
45 Loy. Univ. Chi. L. J. 1195, 1202 (2014) (“[Because] Title IX is such a short statute with little direction, schools look to specific guidance materials provided by the Department of Education to determine the specific requirements of Title IX.”).
Prior to these final regulations, the Department's last policy statement on Title IX sexual harassment was its withdrawal of the 2011 Dear Colleague Letter
12
and concomitant issuance of the 2017 Q&A. The 2017 Q&A along with the 2001 Guidance represent the “status quo” or “baseline” against which these final regulations make further changes to the Department's enforcement of Title IX obligations.
13
However, the withdrawal of the 2011 Dear Colleague Letter and issuance of the 2017 Q&A did not require or result in wholesale changes to the set of expectations guiding recipients' responses to sexual harassment or to many recipients' Title IX policies and procedures. The Department understands from public comments and media reports that many (if not most) recipients chose not to change their Title IX policies and procedures following the withdrawal of the 2011 Dear Colleague Letter and issuance of the 2017 Q&A.
14
This lack of change by recipients is a reasonable response to the following facts: Guidance is not legally enforceable;
15
the 2017 Q&A expressly stated to recipients that the 2017 Q&A was issued as an interim, non-binding interpretation of Title IX sexual harassment responsibilities while the Department conducted rulemaking to arrive at legally binding regulations addressing this subject;
16
and both the 2017 Q&A and the withdrawn 2011 Dear Colleague Letter relied heavily on the 2001 Guidance.
17
The 2017 Q&A along with the 2001 Guidance, and not the withdrawn 2011 Dear Colleague Letter, remain the baseline against which these final regulations make further changes to enforcement of Title IX obligations.
12
The 2014 Q&A (withdrawn at the same time as the 2011 Dear Colleague Letter was withdrawn) expounded on the same approach taken by the Department in the withdrawn 2011 Dear Colleague Letter; throughout this preamble, references to and discussion of the 2011 Dear Colleague Letter may be understood to assume that the same or similar approach was taken in the 2014 Q&A unless otherwise noted.
13
2017 Q&A at 1 (“[T]hese questions and answers—along with the [2001 Guidance] previously issued by the Office for Civil Rights—provide information about how OCR will assess a school's compliance with Title IX” in “the interim” while the Department “engage[s] in rulemaking on the topic of schools' Title IX responsibilities concerning complaints of sexual misconduct, including peer-on-peer sexual harassment and sexual violence.”).
14
E.g.,
Alice B. Lloyd,
Colleges Stick With Obama-Era Title IX Guidance,
Washington Examiner (Aug. 2, 2018) (describing the 2017 Q&A and withdrawal of the 2011 Dear Colleague Letter as giving recipients “the option to adjust their procedures” for example with respect to which standard of evidence to use in sexual harassment cases, and designating a longer investigation time frame than the 60 calendar day time frame specified in the 2011 Dear Colleague Letter, and describing reasons why most recipients have chosen not to change Title IX policies and procedures).
15
Perez
v.
Mortgage Bankers Ass'n,
575 U.S. 92, 96-98 (2015).
16
2017 Q&A at 1.
17
Compare
2017 Q&A at 1-4, 6-7
with
2011 Dear Colleague Letter at 2, 3-9, 11, 13.
These final regulations largely address the same topics addressed in the Department's current and past guidance, including withdrawn guidance. Throughout this preamble we explain points of difference, and similarity, between these final regulations, and the Department's guidance. As such discussion makes clear, some of the Title IX policies and procedures that
recipients have in place due to following the 2001 Guidance and the withdrawn 2011 Dear Colleague Letter remain viable policies and procedures for recipients to adopt while complying with these final regulations. Because these final regulations represent the Department's interpretation of a recipient's legally binding obligations, rather than best practices, recommendations, or guidance, these final regulations focus on precise legal compliance requirements governing recipients. In many regards, as discussed throughout this preamble, these final regulations leave recipients the flexibility to choose to follow best practices and recommendations contained in the Department's guidance or, similarly, best practices and recommendations made by non-Department sources, such as Title IX consultancy firms, legal and social science scholars, victim advocacy organizations, civil libertarians and due process advocates, and other experts.
Based on extensive review of the critical issues addressed in this rulemaking, the Department has determined that current regulations do not provide clear direction for how recipients must respond to allegations of sexual harassment because current regulations do not reference sexual harassment at all. Similarly, the Department has determined that Department guidance is insufficient to provide clear direction on this subject because it is not legally enforceable,
18
has created confusion and uncertainty among recipients,
19
and has not adequately advised recipients as to how to uphold Title IX's non-discrimination mandate while at the same time meeting requirements of constitutional due process and fundamental fairness.
20
Therefore, the Department issues these final regulations addressing sexual harassment, to better align the Department's Title IX regulations with the text and purpose of Title IX, the U.S. Constitution, Supreme Court precedent and other case law, and to address the practical challenges facing students, employees, and recipients with respect to sexual harassment allegations in education programs and activities.
18
For further discussion, see the “Notice and Comment Rulemaking Rather Than Guidance” section of this preamble.
19
Janet Napolitano,
“Only Yes Means Yes”: An Essay on University Policies Regarding Sexual Violence and Sexual Assault,
33 Yale L. & Pol'y Rev. 387, 393-97 (2015) (The Honorable Janet Napolitano, the President of the University of California, who is a former Governor and Attorney General of Arizona and a former United States Secretary of Homeland Security, writing that OCR's guidance documents “left [campuses] with significant uncertainty and confusion about how to appropriately comply after they were implemented” and specifically noted that the “2011 Dear Colleague Letter generated significant compliance questions for campuses.”);
see also
Task Force on Fed. Regulation of Higher Education,
Recalibrating Regulation of Colleges and Universities
at 12 (2015) (the Task Force on Federal Regulation of Higher Education, appointed by a bipartisan group of U.S. Senators, noting: “[A] guidance document meant to clarify uncertainty only led to more confusion. A 2011 `Dear Colleague' letter on Title IX responsibilities regarding sexual harassment contained complex mandates and raised a number of questions for institutions. As a result, the Department was compelled to issue further guidance clarifying its letter. This took the form of a 53-page `Questions and Answers' document [the withdrawn 2014 Q&A] that took three years to complete. Still, that guidance has raised further questions. Complexity begets more complexity.”).
20
See
the “Role of Due Process in the Grievance Process” section of this preamble.
The final regulations define and apply the following terms, as discussed in the “Section 106.30 Definitions” section of this preamble: “actual knowledge,” “complainant,” “elementary and secondary schools,” “formal complaint,” “postsecondary institution,” “respondent,” “sexual harassment,” and “supportive measures”; each term has a specific meaning under these final regulations. For clarity of understanding when reading this preamble, “complainant” means any individual who is alleged to be the victim of sexual harassment, and “respondent” means any individual who is reported to be the perpetrator of sexual harassment. A person may be a complainant, or a respondent, even where no formal complaint has been filed and no grievance process is pending. A “formal complaint” is a document that initiates a recipient's grievance process, but a formal complaint is not required in order for a recipient to have actual knowledge of sexual harassment, or allegations of sexual harassment, that activates the recipient's legal obligation to respond promptly, including by offering supportive measures to a complainant. References in this preamble to a complainant, respondent, or other individual with respect to exercise of rights under Title IX should be understood to include situations in which a parent or guardian has the legal right to act on behalf of the individual.
21
21
For further discussion see the “Section 106.6(g) Exercise of Rights by Parents/Guardians” subsection of the “Clarifying Amendments to Existing Regulations” section of this preamble.
Alleged victims of sexual harassment often have options to pursue legal action through civil litigation or by pressing criminal charges. Title IX does not replace civil or criminal justice systems. However, the way in which a school, college, or university responds to allegations of sexual harassment in an education program or activity has serious consequences for the equal educational access of complainants and respondents. These final regulations require recipients to offer supportive measures to every complainant, irrespective of whether the complainant files a formal complaint. Recipients may not treat a respondent as responsible for sexual harassment without providing due process protections. When a recipient determines a respondent to be responsible for sexual harassment after following a fair grievance process that gives clear procedural rights to both parties, the recipient must provide remedies to the complainant.
Summary of the Major Provisions of This Regulatory Action
These final regulations are premised on setting forth clear legal obligations that require recipients to: Promptly respond to individuals who are alleged to be victims of sexual harassment by offering supportive measures; follow a fair grievance process to resolve sexual harassment allegations when a complainant requests an investigation or a Title IX Coordinator decides on the recipient's behalf that an investigation is necessary; and provide remedies to victims of sexual harassment.
Regarding sexual harassment, the final regulations:
Define the conduct constituting sexual harassment for Title IX purposes;
Specify the conditions that activate a recipient's obligation to respond to allegations of sexual harassment and impose a general standard for the sufficiency of a recipient's response, and specify requirements that such a response much include, such as offering supportive measures in response to a report or formal complaint of sexual harassment;
Specify conditions that require a recipient to initiate a grievance process to investigate and adjudicate allegations of sexual harassment; and
Establish procedural due process protections that must be incorporated into a recipient's grievance process to ensure a fair and reliable factual determination when a recipient investigates and adjudicates a formal complaint of sexual harassment.
Additionally, the final regulations: Affirm that the Department's Office for Civil Rights (“OCR”) may require recipients to take remedial action for discriminating on the basis of sex or otherwise violating the Department's regulations implementing Title IX, consistent with 20 U.S.C. 1682; clarify that in responding to any claim of sex discrimination under Title IX, recipients are not required to deprive an individual of rights guaranteed under
the U.S. Constitution; acknowledge the intersection of Title IX, Title VII, and FERPA, as well as the legal rights of parents or guardians to act on behalf of individuals with respect to Title IX rights; update the requirements for recipients to designate a Title IX Coordinator, disseminate the recipient's non-discrimination policy and the Title IX Coordinator's contact information, and notify students, employees, and others of the recipient's grievance procedures and grievance process for handling reports and complaints of sex discrimination, including sexual harassment; eliminate the requirement that religious institutions submit a written statement to the Assistant Secretary for Civil Rights to qualify for the Title IX religious exemption; and expressly prohibit retaliation against individuals for exercising rights under Title IX.
Timing, Comments, and Changes
On November 29, 2018, the Secretary published a notice of proposed rulemaking (NPRM) for these parts in the
Federal Register
.
22
The final regulations contain changes from the NPRM (interchangeably referred to in this preamble as the “NPRM,” the “proposed rules,” or the “proposed regulations”), and these changes are fully explained in the “Analysis of Comments and Changes” and other sections of this preamble.
22
83 FR 61462 (Nov. 29, 2018) (to be codified at 34 CFR pt. 106).
Throughout this preamble, the Department uses the terms “institutions of higher education” (or “IHEs”) interchangeably with “postsecondary institutions” (or “PSEs”). The Department uses the phrase “elementary and secondary schools” (or “ESEs”) interchangeably with “local educational agencies” (or “LEAs” or “K-12”).
Throughout this preamble, the Department refers to Title IX of the Education Amendments of 1972, as amended, as “Title IX,”
23
to the Individuals with Disabilities Education Act as the “IDEA,”
24
to Section 504 of the Rehabilitation Act of 1973 as “Section 504,”
25
to the Americans with Disabilities Act as the “ADA,”
26
to Title VI of the 1964 Civil Rights Act as “Title VI,”
27
to Title VII of the 1964 Civil Rights Act as “Title VII,”
28
to section 444 of the General Education Provisions Act (GEPA), which is commonly referred to as the Family Educational Rights and Privacy Act of 1974, as “FERPA,”
29
to the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act as the “Clery Act,”
30
and to the Violence Against Women Reauthorization Act of 2013 as “VAWA.”
31
23
20 U.S.C. 1681
et seq.
24
20 U.S.C. 1400
et seq.
25
29 U.S.C. 701
et seq.
26
42 U.S.C. 12101
et seq.
27
42 U.S.C. 2000d
et seq.
28
42 U.S.C. 2000e
et seq.
29
20 U.S.C. 1232g.
30
20 U.S.C. 1092(f).
31
34 U.S.C. 12291
et seq.
(formerly codified at 42 U.S.C. 13925).
The Department uses the phrase “Title IX sexual harassment” to refer to the conduct defined in § 106.30 to be sexual harassment as well as the conditions described in § 106.44(a) that require a recipient to respond to sexual harassment under Title IX and these final regulations.
32
When the Department uses the term “victim” (or “survivor”) or “perpetrator” to discuss these final regulations, the Department assumes that a reliable process, namely the grievance process described in § 106.45, has resulted in a determination of responsibility, meaning the recipient has found a respondent responsible for perpetrating sexual harassment against a complainant.
33
32
Section 106.44(a) requires a recipient with actual knowledge of sexual harassment in an education program or activity of the recipient against a person in the United States to respond promptly in a manner that is not deliberately indifferent, meaning not clearly unreasonable in light of the known circumstances.
33
As noted in the “Executive Summary” section of this preamble, “respondent,” “sexual harassment,” and “complainant” are defined terms in § 106.30.
Throughout the preamble, the Department references and summarizes statistics, data, research, and studies that commenters submitted. The Department's reference to or summarization of these items, however, does not speak to their level of accuracy. Whether specifically cited or not, we considered all relevant information submitted to us in our analysis and promulgation of these final regulations.
The Department references statistics, data, research, and studies throughout this preamble. Such reference to or summarization of these items does not indicate that the Department independently has determined that the entirety of each item is accurate.
Many commenters referenced the impact of sexual harassment or the proposed rules on individuals who belong to, or identify with, certain demographic groups, and used a variety of acronyms and phrases to describe such individuals; for example, various commenters referred to “LGBT” or “LGBTQ+” and “persons of color” or “racial minorities.” For consistency, throughout this preamble we use the acronym “LGBTQ” while recognizing that other terminology may be used or preferred by certain groups or individuals, and our use of “LGBTQ” should be understood to include lesbian, gay, bisexual, transgender, queer, questioning, asexual, intersex, nonbinary, and other sexual orientation or gender identity communities. We use the phrase “persons of color” to refer to individuals whose race or ethnicity is not white or Caucasian. We emphasize that every person, regardless of demographic or personal characteristics or identity, is entitled to the same protections against sexual harassment under these final regulations, and that every individual should be treated with equal dignity and respect.
Finally, several provisions in the NPRM have been renumbered in the final regulations.
34
In response to commenters who asked for clarification as to whether the definitions in § 106.30 apply to a term in a specific regulatory provision, some of the regulatory provisions specifically refer to a term “as defined in § 106.30” to provide additional clarity.
35
Notwithstanding these points of additional clarification in certain regulatory provisions, the definitions in § 106.30 apply to the entirety of 34 CFR part 106. For consistency, references in this preamble are to the provisions as numbered in the final, and not the proposed, regulations.
Citations to “34 CFR 106.__” in the body of the preamble and the footnotes are citations to the Department's current regulations and not the final regulations.
34
Provisions proposed in the NPRM, as renumbered in these final regulations, are:
Proposed § 106.44(b)(2)
eliminated in the final regulations.
Proposed § 106.44(b)(3)
eliminated in the final regulations.
Proposed § 106.44(b)(4)
eliminated in the final regulations.
Proposed § 106.44(b)(5)
in the final regulations as
§ 106.44(b)(2).
Proposed § 106.45(b)(3)(i)
in the final regulations as
§ 106.45(b)(5)(i).
Proposed § 106.45(b)(3)(ii)
in the final regulations as
§ 106.45(b)(5)(ii).
Proposed § 106.45(b)(3)(iii)
in the final regulations as
§ 106.45(b)(5)(iii).
Proposed § 106.45(b)(3)(iv)
in the final regulations as
§ 106.45(b)(5)(iv).
Proposed § 106.45(b)(3)(v)
in the final regulations as
§ 106.45(b)(5)(v).
Proposed § 106.45(b)(3)(vi)
in the final regulations as
§ 106.45(b)(6)(ii).
Proposed § 106.45(b)(3)(vii)
in the final regulations as
§ 106.45(b)(6)(i).
Proposed § 106.45(b)(3)(viii)
in the final regulations as
§ 106.45(b)(5)(vi).
Proposed § 106.45(b)(3)(ix)
in the final regulations as
§ 106.45(b)(5)(vii).
Proposed § 106.45(b)(4)
in the final regulations as
§ 106.45(b)(7).
Proposed § 106.45(b)(5)
in the final regulations as
§ 106.45(b)(8).
Proposed § 106.45(b)(6)
in the final regulations as
§ 106.45(b)(9).
Proposed § 106.45(b)(7)
in the final regulations as
§ 106.45(b)(10).
35
E.g.,
§§ 106.8(c), 106.44(a), 106.45(b) (introductory sentence), 106.45(b)(1)(i), 106.45(b)(2), 106.45(b)(3)(i), 106.45(b)(7).
Adoption and Adaption of the Supreme Court's Framework To Address Sexual Harassment
Seven years after the passage of Title IX, the Supreme Court in
Cannon
v.
University of Chicago
36
held that a judicially implied private right of action exists under Title IX. Thirteen years after that, in
Franklin
v.
Gwinnett County Public Schools
37
the Supreme Court held that money damages are an available remedy in a private lawsuit alleging a school's intentional discrimination in violation of Title IX. The
Cannon
Court explained that Title IX has two primary objectives: Avoiding use of Federal funds to support discriminatory practices and providing individuals with effective protection against discriminatory practices.
38
Those two purposes are enforced both by administrative agencies that disburse Federal financial assistance to recipients, and by courts in private litigation. These two avenues of enforcement (administrative enforcement by agencies, and judicial enforcement by courts) have different features: For instance, administrative enforcement places a recipient's Federal funding at risk,
39
while judicial enforcement does not.
40
But the goal of both avenues of enforcement (administrative and judicial) is the same: To further the non-discrimination mandate of Title IX.
36
441 U.S. 677, 717 (1979).
37
503 U.S. 60, 76 (1992).
38
Cannon
v.
Univ. of Chicago,
441 U.S. 677, 704 (1979) (“Title IX, like its model Title VI, sought to accomplish two related, but nevertheless somewhat different, objectives. First, Congress wanted to avoid the use of federal resources to support discriminatory practices; second, it wanted to provide individual citizens effective protection against those practices.”).
39
20 U.S.C. 1682.
40
Franklin,
503 U.S. at 76.
In deciding whether to recognize a judicially implied right of private action, the
Cannon
Court considered whether doing so would conflict with administrative enforcement of Title IX. The
Cannon
Court concluded that far from conflicting with administrative enforcement, judicial enforcement would complement administrative enforcement because some violations of Title IX may lend themselves to the administrative remedy of terminating Federal financial assistance, while other violations may lend themselves to a judicial remedy in private litigation.
41
The
Cannon
Court recognized that judicial and administrative enforcement both help ensure “the orderly enforcement of the statute” to achieve Title IX's purposes.
42
41
Cannon,
441 U.S. at 704-06.
42
Id.
at 705-06 (“The award of individual relief to a private litigant who has prosecuted her own suit is not only sensible but is also fully consistent with—and in some cases even necessary to—the orderly enforcement of the statute.”);
see also id.
at 707 (“the individual remedy will provide effective assistance to achieving the statutory purposes.”).
In
Franklin,
the Supreme Court acknowledged that sexual harassment and sexual abuse of a student by a teacher may mean the school itself engaged in intentional sex discrimination.
43
The
Franklin
Court held that money damages is an available remedy in a private lawsuit under Title IX, reasoning that even though Title IX is a Spending Clause statute, schools have been on notice since enactment of Title IX that intentional sex discrimination is prohibited under Title IX.
44
43
Franklin,
503 U.S. at 74-75 (holding intentional discrimination by the school is alleged where the school's employee sexually harassed a student).
44
Id.
at 74 (noting that under
Pennhurst State Sch. & Hosp.
v.
Halderman,
451 U.S. 1 (1981), monetary damages may be appropriate to remedy an intentional violation of a Spending Clause statute because entities subject to the statute are on notice that intentional violations of a statute may subject the entity to monetary damages);
see also Gebser
v.
Lago Vista Indep. Sch. Dist.,
524 U.S. 274, 281 (1998) (noting that in
Franklin,
the plaintiff alleged that “school administrators knew about the harassment but took no action, even to the point of dissuading her from initiating charges”).
In 1998, six years after
Franklin,
in
Gebser
v.
Lago Vista Independent School District
45
the Supreme Court analyzed the conditions under which a school district will be liable for money damages for an employee sexually harassing a student. The
Gebser
Court began its analysis by stating that while
Franklin
acknowledged that a school employee sexually harassing a student may constitute the school itself committing intentional discrimination on the basis of sex, it was necessary to craft standards defining “the contours of that liability.”
46
The
Gebser
Court held that where a school has actual knowledge of an employee sexually harassing a student but responds with deliberate indifference to such knowledge, the school itself has engaged in discrimination, subjecting the school to money damages in a private lawsuit under Title IX.
47
The following year, in 1999, in
Davis
v.
Monroe County Board of Education,
48
the Supreme Court held that where sexual harassment is committed by a peer rather than an employee, the same standards of actual knowledge and deliberate indifference apply.
49
The
Davis
Court additionally crafted a definition of when sex-based conduct becomes actionable sexual harassment, defining the conduct as “so severe, pervasive, and objectively offensive” that it denies its victims equal access to education.
50
45
524 U.S. 274 (1998).
46
Id.
at 281 (“
Franklin
thereby establishes that a school district can be held liable in damages in cases involving a teacher's sexual harassment of a student; the decision, however, does not purport to define the contours of that liability. We face that issue squarely in this case.”).
47
Id.
at 290.
48
526 U.S. 629 (1999).
49
Id.
at 650 (holding that “funding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”).
50
See id.
The Supreme Court's
Gebser
and
Davis
cases built upon the Supreme Court's previous Title IX decisions in
Cannon
and
Franklin
to establish a three-part framework describing when a school's response to sexual harassment constitutes the school itself committing discrimination. The three parts of this framework are: Conditions that must exist to trigger a school's response obligations (actionable sexual harassment, and the school's actual knowledge) and the deliberate indifference liability standard evaluating the sufficiency of the school's response. We refer herein to the “
Gebser/Davis
framework,” consisting of a definition of actionable sexual harassment, the school's actual knowledge, and the school's deliberate indifference.
The
Gebser/Davis
framework is the appropriate starting point for ensuring that the Department's Title IX regulations recognize the conditions under which a school's response to sexual harassment violates Title IX. Whether the available remedy is money damages (in private litigation) or termination of Federal financial assistance (in administrative enforcement), the Department's regulations must acknowledge that when a school itself commits sex discrimination, the school has violated Title IX.
In crafting the
Gebser
/
Davis
framework, the Supreme Court emphasized that because a private lawsuit under Title IX subjects a school to money damages, it was important for the Court to set standards for a school's liability premised on the school's knowledge and deliberate choice to permit sexual harassment, analogous to the way that the Title IX statute provides that a school's Federal
financial assistance is terminated by the Department only after the Department first advises the school of a Title IX violation, attempts to secure voluntary compliance, and the school refuses to come into compliance.
51
Nothing in
Gebser
or
Davis
purports to restrict the
Gebser/Davis
framework only to private lawsuits for money damages.
52
Rather, the Supreme Court justified that framework as appropriate for recognizing when a school's response to sexual harassment constitutes intentional discrimination by the school, warranting exposure to money damages in a private Title IX lawsuit. Neither
Gebser
nor
Davis
opined as to what the appropriate conditions (
e.g.,
definition of sexual harassment, actual knowledge) and liability standard (
e.g.,
deliberate indifference) must or should be for the Department's administrative enforcement.
51
See, e.g., Gebser,
524 U.S. at 288-90 (examining the administrative enforcement scheme set forth in the Title IX statute, 20 U.S.C. 1682, and concluding that “[b]ecause the express remedial scheme under Title IX is predicated upon notice to an `appropriate person' and an opportunity to rectify any violation, 20 U.S.C. 1682, we conclude, in the absence of further direction from Congress, that the implied damages remedy should be fashioned along the same lines” and adopting the actual knowledge and deliberate indifference standards).
52
The Department notes that courts also have used the
Gebser/Davis
framework in awarding injunctive relief, not only in awarding monetary damages.
E.g., Fitzgerald
v.
Barnstable Sch. Dist.,
555 U.S. 246, 255 (2009) (“In addition, this Court has recognized an implied private right of action . . . In a suit brought pursuant to this private right,
both injunctive relief and damages are available.”
) (internal citations omitted; emphasis added);
Hill
v.
Cundiff,
797 F.3d 948, 972-73 (11th Cir. 2015) (reversing summary judgment against plaintiff's claims for injunctive relief because a jury could find that the alleged conduct was “severe, pervasive, and objectively offensive” under
Davis
);
B.H. ex rel. Hawk
v.
Easton Area Sch. Dist.,
725 F.3d 293, 322-23 (3d Cir. 2013) (upholding preliminary injunction against school for banning students from wearing bracelets because the school failed to show that the “bracelets would breed an environment of pervasive and severe harassment” under
Davis
);
Haidak
v.
Univ. of Mass. at Amherst,
299 F. Supp. 3d 242, 270 (D. Mass. 2018) (denying plaintiff's request for a preliminary injunction because he failed to show that the school was deliberately indifferent to an environment of severe and pervasive discriminatory conduct under
Davis
),
aff'd in part, vacated in part, remanded by Haidak
v.
Univ. of Mass.
-Amherst,
933 F.3d 56 (1st Cir. 2019).
The Department has regulatory authority to select conditions and a liability standard different from those used in the
Gebser/Davis
framework, because the Department has authority to issue rules that require recipients to take administrative actions to effectuate Title IX's non-discrimination mandate. For example, longstanding Department regulations require recipients to designate an employee to coordinate the recipient's efforts to comply with Title IX,
53
to file an assurance of compliance with the Department,
54
and to adopt and publish grievance procedures for handling complaints of sex discrimination.
55
Failure to do any of the foregoing does not, by itself, mean the school has committed sex discrimination, but the Department lawfully may enforce such administrative requirements because the Department has authority to issue and enforce rules that effectuate the purpose of Title IX.
56
53
34 CFR 106.8(a).
54
34 CFR 106.4(a).
55
34 CFR 106.8(b).
56
See, e.g., Gebser,
524 U.S. at 292 (“And in any event, the failure to promulgate a grievance procedure does not itself constitute `discrimination' under Title IX. Of course, the Department of Education could enforce the requirement administratively: Agencies generally have authority to promulgate and enforce requirements that effectuate the statute's non-discrimination mandate, 20 U.S.C. 1682, even if those requirements do not purport to represent a definition of discrimination under the statute.
E.g., Grove City
[v.
Bell,
465 U.S. 555, 574-575 (1984), superseded by statute on a different point by the Civil Rights Restoration Act of 1987] (permitting administrative enforcement of regulation requiring college to execute an `Assurance of Compliance' with Title IX). We have never held, however, that the implied private right of action under Title IX allows recovery in damages for violation of those sorts of administrative requirements.”).
These final regulations begin with the
Gebser/Davis
framework, so that when a school itself commits sex discrimination by subjecting its students or employees to sexual harassment, that form of discrimination is clearly prohibited by these final regulations. The Department adopts the
Gebser/Davis
framework in these final regulations by defining “sexual harassment,” defining “actual knowledge,” and describing “deliberate indifference,” consistent with
Gebser
and
Davis.
The Department does not simply codify the
Gebser/Davis
framework. Under the Department's statutory authority to issue rules to effectuate the purpose of Title IX, the Department reasonably expands the definitions of sexual harassment and actual knowledge, and the deliberate indifference standard, to tailor the
Gebser/Davis
framework to the administrative enforcement context.
The Department believes that adapting the
Gebser/Davis
framework is appropriate for administrative enforcement, because the adapted conditions (definitions of sexual harassment and actual knowledge) and liability standard (deliberate indifference) reflected in these final regulations promote important policy objectives with respect to a recipient's legal obligations to respond to sexual harassment. As explained in more detail in the “Actual Knowledge” and “Sexual Harassment” subsections of the “Section 106.30 Definitions” section of this preamble, and the “Section 106.44(a) Deliberate Indifference Standard” subsection of the “Section 106.44(a) Recipient's Response to Sexual Harassment, Generally” section of this preamble, the Department believes that:
• Including the
Davis
definition of sexual harassment for Title IX purposes as “severe, pervasive, and objectively offensive” conduct that effectively denies a person equal educational access helps ensure that Title IX is enforced consistent with the First Amendment. At the same time, the Department adapts the
Davis
definition of sexual harassment in these final regulations by also expressly including
quid pro quo
harassment and Clery Act/VAWA sex offenses. This expanded definition of sexual harassment
57
ensures that
quid pro quo
harassment and Clery Act/VAWA sex offenses trigger a recipient's response obligations, without needing to be evaluated for severity, pervasiveness, offensiveness, or denial of equal access, because prohibiting such conduct presents no First Amendment concerns and such serious misconduct causes denial of equal educational access;
57
The final regulations define sexual harassment in § 106.30 as follows: 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 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).
• Using the
Gebser/Davis
concept of actual knowledge, adapted in these final regulations by including notice to any recipient's Title IX Coordinator,
58
or notice to any elementary and secondary school employee,
59
furthers the Department's policy goals of ensuring that elementary and secondary schools
respond whenever a school employee knows of sexual harassment or allegations of sexual harassment, while respecting the autonomy of students at postsecondary institutions to decide whether or when to report sexual harassment; and
58
As discussed throughout this preamble, the final regulations ensure that every recipient gives its educational community clear, accessible options for reporting sexual harassment to the recipient's Title IX Coordinator.
See, e.g.,
§ 106.8.
59
The final regulations define “actual knowledge” in § 106.30 as 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 or secondary school.
• Using the deliberate indifference standard, adapted in these final regulations by specifying actions that every recipient must take in response to every instance of actual knowledge of sexual harassment,
60
ensures that recipients respond to sexual harassment by offering supportive measures designed to restore or preserve a complainant's equal educational access without treating a respondent as responsible until after a fair grievance process. The deliberate indifference standard achieves these aims without unnecessarily second guessing a recipient's decisions with respect to appropriate supportive measures, disciplinary sanctions, and remedies when the recipient responds to sexual harassment incidents, which inherently present fact-specific circumstances.
61
60
The final regulations require recipients to respond promptly by: offering supportive measures to every complainant (
i.e.,
an individual who is alleged to be the victim of sexual harassment); refraining from imposing disciplinary sanctions on a respondent without first following a prescribed grievance process; investigating every formal complaint filed by a complainant or signed by a Title IX Coordinator; and effectively implementing remedies designed to restore or preserve a complainant's equal educational access any time a respondent is found responsible for sexual harassment. § 106.44(a); § 106.44(b)(1); § 106.45(b)(3)(i); § 106.45(b)(1)(i); § 106.45(b)(7)(iv).
61
As explained below in the “Deliberate Indifference” subsection of the preamble, the final regulations apply a deliberate indifference standard for evaluating a recipient's decisions with respect to selection of supportive measures and remedies, and these final regulations do not mandate or scrutinize a recipient's decisions with respect to disciplinary sanctions imposed on a respondent after a respondent has been found responsible for sexual harassment.
The Department chooses to build these final regulations upon the foundation established by the Supreme Court, to provide consistency between the rubrics for judicial and administrative enforcement of Title IX, while adapting that foundation for the administrative process, in a manner that achieves important policy objectives unique to sexual harassment in education programs or activities.
Differences Between Standards in Department Guidance and These Final Regulations
The Department's guidance on schools' responses to sexual harassment recommended conditions triggering a school's response obligations, and a liability standard, that differed in significant ways from the
Gebser/Davis
framework and from the approach taken in these final regulations. With respect to the three-part
Gebser/Davis
framework (
i.e.,
a definition of sexual harassment, actual knowledge condition, and deliberate indifference standard), the Department's guidance recommended a broader definition of actionable sexual harassment, a constructive notice condition, and a standard closer to strict liability than to deliberate indifference.
The Department's 1997 Guidance used a definition of sexual harassment described as “sexually harassing conduct (which can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature) by an employee, by another student, or by a third party” and indicated that a school's response was necessary whenever sexual harassment became “sufficiently severe, persistent, or pervasive to limit a student's ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment.”
62
The 1997 Guidance recommended that schools take action on the basis of constructive notice rather than actual knowledge.
63
Instead of a deliberate indifference standard, the 1997 Guidance indicated that the Department would find a school in violation where the school's response failed to stop the harassment and prevent its recurrence.
64
62
1997 Guidance (“Sexually harassing conduct (which can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature) by an employee, by another student, or by a third party that is sufficiently severe, persistent, or pervasive to limit a student's ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment.”).
63
1997 Guidance (“[A] school will always be liable for even one instance of
quid pro quo
harassment by a school employee . . . whether or not it knew, should have known, or approved of the harassment at issue.”);
id.
(“a school will be liable under Title IX if its students sexually harass other students if . . . the school knows or should have known of the harassment”).
64
1997 Guidance (“Once a school has notice of possible sexual harassment of students—whether carried out by employees, other students, or third parties—it should take immediate and appropriate steps to investigate or otherwise determine what occurred and take steps reasonably calculated to end any harassment, eliminate a hostile environment if one has been created, and prevent harassment from occurring again.”).
The 2001 Guidance acknowledged that in the time period between the Department issuing the 1997 Guidance and the 2001 Guidance, the Supreme Court's
Gebser
and
Davis
cases addressed the subject of school responses to sexual harassment under Title IX.
65
The 2001 Guidance reasoned that because those Supreme Court cases were decided in the context of private lawsuits for money damages under Title IX, the Department was not obligated to adopt the same standards for administrative enforcement.
66
The 2001 Guidance noted that the
Gebser
and
Davis
decisions analogized to Title IX's statutory administrative enforcement scheme, which provides that a school receives notice and an opportunity to correct a violation before an agency terminates Federal financial assistance.
67
The 2001 Guidance reasoned that because a school always receives notice of a violation and opportunity to voluntarily correct a violation before the Department may terminate Federal financial assistance, the Department was not required to use the actual knowledge condition or deliberate indifference standard, and the 2001 Guidance continued the 1997 Guidance's approach to constructive notice and strict liability.
68
65
2001 Guidance at iii-iv.
66
Id.
at ii, iv.
67
Id.
at iii-iv (“The
Gebser
Court recognized and contrasted lawsuits for money damages with the incremental nature of administrative enforcement of Title IX. In
Gebser,
the Court was concerned with the possibility of a money damages award against a school for harassment about which it had not known. In contrast, the process of administrative enforcement requires enforcement agencies such as OCR to make schools aware of potential Title IX violations and to seek voluntary corrective action before pursuing fund termination or other enforcement mechanisms.”).
68
Id.
at 10 (a “school has notice of harassment if a responsible school employee actually knew or, in the exercise of reasonable care, should have known about the harassment.”) (“Schools are responsible for taking prompt and effective action to stop the harassment and prevent its recurrence” and the recipient is “also responsible for remedying any effects of the harassment on the victim . . . .”).
The 2001 Guidance nonetheless asserted that consistency between the judicial and administrative rubrics was desirable, and with respect to a definition of sexual harassment, the 2001 Guidance stated that a multiplicity of definitions (
i.e.,
one definition for private lawsuits and another for administrative enforcement) would not serve the purpose of consistency between judicial and administrative enforcement.
69
The 2001 Guidance asserted that the
Davis
definition of actionable sexual harassment used different words (
i.e.,
severe, pervasive, and objectively offensive) but was consistent with the definition of sexual harassment used in the 1997 Guidance (
i.e.,
severe, persistent, or pervasive).
70
The 2001 Guidance proceeded to describe sexual harassment as “unwelcome conduct of a sexual nature”
71
that is “severe, persistent, or pervasive”
72
and asserted that this definition was consistent with the
Davis
definition because both definitions “are contextual descriptions intended to capture the same concept—that under Title IX, the conduct must be sufficiently serious that it adversely affects a student's ability to participate in or benefit from the school's program.”
73
69
Id.
at vi (“schools benefit from consistency and simplicity in understanding what is sexual harassment for which the school must take responsive action. A multiplicity of definitions would not serve this purpose.”).
70
Id.
at v-vi.
71
2001 Guidance at 2. The 2001 Guidance, like the 1997 Guidance, emphasized that sexual harassment can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature, by an employee, student, or third party. Similarly, “sexual harassment” defined in these final regulations in § 106.30, includes the foregoing conduct of a sexual nature, as well as other unwelcome conduct “on the basis of sex” even if the conduct is devoid of sexual content.
72
2001 Guidance at vi.
73
Id.
The withdrawn 2011 Dear Colleague Letter continued to define sexual harassment as “unwelcome conduct of a sexual nature” and added that “[s]exual violence is a form of sexual harassment prohibited by Title IX” without defining sexual violence.
74
The withdrawn 2011 Dear Colleague Letter continued the approach from the 2001 Guidance that sexual harassment must be “sufficiently serious that it interferes with or limits a student's ability to participate in or benefit from the school's program” but omitted the description of actionable sexual harassment as “severe, persistent, or pervasive” that had been utilized in the 1997 Guidance and the 2001 Guidance.
75
The withdrawn 2011 Dear Colleague Letter continued to recommend that schools act upon constructive notice (rather than actual knowledge) and to hold schools accountable under a strict liability standard rather than deliberate indifference.
76
74
2011 Dear Colleague Letter at 3.
75
2011 Dear Colleague Letter at 3 (“As explained in OCR's 2001 Guidance, when a student sexually harasses another student, the harassing conduct creates a hostile environment if the conduct is sufficiently serious that it interferes with or limits a student's ability to participate in or benefit from the school's program. The more severe the conduct, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the harassment is physical. Indeed, a single or isolated incident of sexual harassment may create a hostile environment if the incident is sufficiently severe. For instance, a single instance of rape is sufficiently severe to create a hostile environment.”).
76
2011 Dear Colleague Letter at 4 (“If a school knows or reasonably should know about student-on-student harassment that creates a hostile environment, Title IX requires the school to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects.”);
id.
at 4 fn. 12 (“This is the standard for administrative enforcement of Title IX and in court cases where plaintiffs are seeking injunctive relief. . . . The standard in private lawsuits for monetary damages is actual knowledge and deliberate indifference.
See Davis
v.
Monroe Cnty. Bd. of Educ.,
526 U.S. 629, 643, 648 (1999).”).
The 2017 Q&A used the definition of actionable sexual harassment as described in the 2001 Guidance, stating that “when sexual misconduct is so severe, persistent, or pervasive as to deny or limit a student's ability to participate in or benefit from the school's programs or activities, a hostile environment exists and the school must respond.”
77
The 2017 Q&A relied on the 2001 Guidance's condition of constructive notice rather than actual knowledge.
78
Although the 2017 Q&A did not expressly address the deliberate indifference versus strict liability standard, it directed recipients to the 2001 Guidance for topics not addressed in the 2017 Q&A,
79
including what it means for a school to “respond appropriately” when the school “knows or reasonably should know”
80
of a sexual misconduct incident, thereby retaining the 2001 Guidance's reliance on constructive notice and strict liability.
77
2017 Q&A at 1.
78
2017 Q&A at 2 (citing to the 2001 Guidance for the proposition that “where the school
knows or reasonably should know of an incident
of sexual misconduct, the school must take steps to understand what occurred and to respond appropriately”) (emphasis added).
79
See
2017 Q&A at 1 (“The Department of Education intends to engage in rulemaking on the topic of schools' Title IX responsibilities concerning complaints of sexual misconduct, including peer-on-peer sexual harassment and sexual violence. The Department will solicit input from stakeholders and the public during that rulemaking process.
In the interim, these questions and answers—along with the [2001] Revised Sexual Harassment Guidance previously issued by the Office for Civil Rights—provide information about how OCR will assess a school's compliance
with Title IX.”) (emphasis added).
80
Id.
To the extent that the Department intended for schools to understand the 1997 Guidance, the 2001 Guidance, the withdrawn 2011 Dear Colleague Letter, or the 2017 Q&A as descriptions of a school's legal obligations under Title IX, those guidance documents directed schools to apply standards that failed to adequately address the unique challenges presented by sexual harassment incidents in a school's education program or activity.
The Department believes that sexual harassment affects “the equal access to education that Title IX is designed to protect”
81
and this problem warrants legally binding regulations addressing sexual harassment as a form of sex discrimination under Title IX, instead of mere guidance documents which are not binding and do not have the force and effect of law.
82
The starting place for describing such legal obligations is adoption of the
Gebser/Davis
framework because that framework describes when sexual harassment constitutes a school itself discriminating on the basis of sex in violation of Title IX. At the same time, the Department adapts the three-part
Gebser/Davis
framework to further the purposes of Title IX in the context of administrative enforcement, holding schools responsible for taking more actions than what the
Gebser/Davis
framework requires.
81
Davis,
526 U.S. at 652.
82
Perez
v.
Mortgage Bankers' Ass'n,
575 U.S. 92, 97 (2015).
The Department's adaptions of the three-part
Gebser/Davis
framework achieve important policy objectives that arise in the context of a school's response to reports, allegations, or incidents of sexual harassment in a school's education program or activity, including respect for freedom of speech and academic freedom,
83
respect for complainants' autonomy,
84
protection of complainants' equal educational access while respecting the decisions of State and local educators to determine appropriate supportive measures, remedies, and disciplinary sanctions,
85
consistency with constitutional due process and fundamental fairness, and clear legal obligations that enable robust administrative enforcement of Title IX violations.
86
The adaptions of the
Gebser/Davis
framework in these final regulations do not codify the Department's guidance yet provide recipients with flexibility, subject to the legal requirements in these final regulations, to respond to a greater range of misconduct, operate on a condition of constructive notice, or respond under a strict liability standard, if the recipient chooses to adopt those guidance-based standards for itself, or if the recipient is
required under State or other laws to adopt those standards.
83
For further discussion see the “Sexual Harassment” subsection of the “Section 106.30 Definitions” section of this preamble.
84
For discussion of the way that an actual knowledge standard, and a requirement for recipients to investigate upon receipt of a formal complaint, respect complainant's autonomy, see the “Actual Knowledge” and “Formal Complaint” subsections of the “Section 106.30 Definitions” section of this preamble.
85
For further discussion, see the “Deliberate Indifference” subsection of this “Adoption and Adaption of the Supreme Court's Framework to Address Sexual Harassment” section and the “Section 106.44(a) Deliberate Indifference Standard” subsection of the “Section 106.44 Recipient's Response to Sexual Harassment, Generally” section of this preamble.
86
For further discussion, see the “Role of Due Process in the Grievance Process” section of this preamble.
Definition of Sexual Harassment
Importantly, the final regulations continue the 1997 Guidance and 2001 Guidance approach of including as sexual harassment unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature by an employee, by another student, or by a third party.
87
Section 106.30 provides that “sexual harassment” is conduct “on the basis of sex” including “unwelcome conduct.” This definition therefore includes unwelcome conduct of a sexual nature, or other unwelcome conduct on the basis of sex, consistent with Department guidance. Equally as important is recognizing that these final regulations continue the withdrawn 2011 Dear Colleague Letter's express acknowledgment that sexual violence is a type of sexual harassment; the difference is that these final regulations expressly define sex-based violence, by reference to the Clery Act and VAWA.
87
2001 Guidance at 2; 1997 Guidance.
The way in which these final regulations differ from guidance in defining actionable sexual harassment is by returning to the 2001 Guidance's premise that a consistent definition of sexual harassment used in both judicial and administrative enforcement is appropriate. Despite the 2001 Guidance's assertion that using “different words” from the
Davis
definition of actionable sexual harassment did not result in inconsistent definitions for use in judicial and administrative enforcement, the Department has reconsidered that assertion because that assertion did not bear out over time.
88
These final regulations thus use (as one of three categories of conduct that constitutes sexual harassment) the
Davis
Court's phrasing verbatim: unwelcome conduct that a reasonable person would determine is “so severe, pervasive, and objectively offensive” that it effectively denies a person equal access to education.
89
The Department chooses to return to the premise expressed in the 2001 Guidance: The Department has an interest in providing recipients with “consistency and simplicity in understanding what is sexual harassment for which the school must take responsive action. A multiplicity of definitions would not serve this purpose.”
90
88
The “Sexual Harassment” subsection of the “Section 106.30 Definitions” section of this preamble discusses in greater detail how the
Davis
definition of sexual harassment as “severe, pervasive, and objectively offensive” comports with First Amendment protections, and the way in which a broader definition, such as severe, persistent, or pervasive (as used in the 1997 Guidance and 2001 Guidance), has led to infringement of rights of free speech and academic freedom of students and faculty.
89
Davis,
526 U.S. at 650 (“We thus conclude that funding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”); § 106.30 (defining “sexual harassment” to include conduct “on the basis of sex” including “unwelcome conduct” that a reasonable person would determine to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient's education program or activity).
90
2001 Guidance at vi.
In addition to using the
Davis
definition verbatim (
i.e.,
conduct that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education), the proposed regulations defined “sexual harassment” to also include sexual assault as defined in the Clery Act. In these final regulations, the Department retains reference to sexual assault under the Clery Act, and additionally incorporates the definitions of dating violence, domestic violence, and stalking in the Clery Act as amended by VAWA.
91
Incorporating these four Clery Act/VAWA offenses clarifies that sexual harassment includes a single instance of sexual assault, dating violence, domestic violence, or stalking. Such incorporation is consistent with the Supreme Court's observation in
Davis
that a single instance of sufficiently severe harassment on the basis of sex
may
have the systemic effect of denying the victim equal access to an education program or activity.
92
However, the Department's inclusion of sexual assault, dating violence, domestic violence, and stalking in the § 106.30 definition of sexual harassment, without requiring those sex offenses to meet the
Davis
elements of severity, pervasiveness, and objective offensiveness, appropriately guards against, for instance, some sexual assaults or incidents of dating violence or domestic violence being covered under Title IX while other sexual assaults or incidents of dating violence or domestic violence are deemed not to be “pervasive” enough to meet the
Davis
standard. Similarly, this approach guards against a pattern of sex-based stalking being deemed “not severe” even though the pattern of behavior is “pervasive.” Such incorporation also provides consistency and clarity with respect to the intersection among Title IX, the Clery Act, and VAWA.
93
91
Section 106.30 (defining “sexual harassment” to include sexual assault, dating violence, domestic violence or stalking as defined in the Clery Act and VAWA statutes).
92
See Davis,
526 U.S. at 652-53 (noting that with respect to “severe, gender-based mistreatment” even “a single instance of sufficiently severe one-on-one peer harassment could be said to” have “the systemic effect of denying the victim equal access to an educational program or activity.”). Although the withdrawn 2011 Dear Colleague Letter expressly disclaimed reliance on
Davis,
that guidance also stated that “The more severe the conduct, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the harassment is physical. Indeed, a single or isolated incident of sexual harassment may create a hostile environment if the incident is sufficiently severe. For instance, a single instance of rape is sufficiently severe to create a hostile environment.” 2011 Dear Colleague Letter at 3.
93
Although elementary and secondary schools are not subject to the Clery Act, elementary and secondary school recipients must look to the definitions of sexual assault, dating violence, domestic violence, and stalking as defined in the Clery Act and VAWA in order to address those forms of sexual harassment under Title IX. These final regulations do not, however, alter the regulations implemented under the Clery Act or an institution of higher education's obligations, if any, under regulations implementing the Clery Act.
The final regulations retain the proposed rules' definition of “
quid pro quo”
harassment in the definition of sexual harassment.
94
The Department recognized
quid pro quo
sexual harassment in its 1997 Guidance and 2001 Guidance, and cited to court cases that recognized
quid pro quo
sexual harassment under Title IX.
95
94
Section 106.30 defines “sexual harassment” to include: An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on the individual's participation in unwelcome sexual conduct. This type of harassment is commonly referred to as
quid pro quo
sexual harassment.
95
See, e.g.,
2001 Guidance at 5, 10 (citing
Alexander
v.
Yale University,
459 F. Supp. 1, 4 (D. Conn. 1977),
aff'd,
631 F.2d 178 (2d Cir. 1980) (stating that a claim “that academic advancement was conditioned upon submission to sexual demands constitutes [a claim of] sex discrimination in education . . .”));
see also Crandell
v.
New York Coll., Osteopathic Med.,
87 F. Supp. 2d 304, 318 (S.D.N.Y. 2000) (finding that allegations that a supervisory physician demanded that a student physician spend time with him and have lunch with him or receive a poor evaluation, in light of the totality of his alleged sexual comments and other inappropriate behavior, constituted a claim of
quid pro quo
harassment);
Kadiki
v.
Va. Commonwealth Univ.,
892 F. Supp. 746, 752 (E.D. Va. 1995). The 2011 Dear Colleague Letter focused on peer harassment but expressly referred to the 2001 Guidance for the appropriate approach to sexual harassment by employees (
i.e., quid pro quo
harassment). 2011 Dear Colleague Letter at 2, fn. 8 (“This letter focuses on peer sexual harassment and violence. Schools' obligations and the appropriate response to sexual harassment and violence committed by employees may be different from those described in this letter. Recipients should refer to the 2001 Guidance for further information about employee harassment of students.”);
see also
2017 Q&A at 1 (not referencing
quid pro quo
sexual harassment, but directing recipients to look to the 2001 Guidance regarding matters not specifically addressed in the 2017 Q&A).
Quid pro quo
sexual harassment also is recognized under Title VII.
E.g., Burlington Indus., Inc.
v.
Ellerth,
524 U.S. 742, 752-53 (1998).
The Honorable Janet Napolitano, the President of the University of California, who is a former Governor and Attorney General of Arizona and a former United States Secretary of Homeland Security, observed that under the Department's guidance recipients had to grapple with “a broad continuum of conduct, from offensive statements to gang rape”
96
and the Department's guidance, especially after the 2001 Guidance was supplemented and altered by the withdrawn 2011 Dear Colleague Letter, caused recipients “uncertainty and confusion about how to appropriately comply.”
97
By utilizing precise definitions of conduct that constitutes sexual harassment, the Department aims to reduce uncertainty and confusion for recipients, students, and employees, while ensuring conduct that jeopardizes equal educational access remains conduct to which a recipient must respond under Title IX.
96
Janet Napolitano,
“Only Yes Means Yes”: An Essay on University Policies Regarding Sexual Violence and Sexual Assault,
33 Yale L. & Pol'y Rev. 387, 388 (2015).
97
Id.
Some commenters requested that the Department more closely align its definition of actionable sexual harassment with the definition that the Supreme Court uses in the context of discrimination because of sex in the workplace under Title VII. Specifically, commenters urged the Department to use a definition of sexual harassment that is “severe
or
pervasive” because that definition is used under Title VII
98
and the 1997 Guidance and 2001 Guidance relied on Title VII case law in using the definition of sexual harassment that is “severe, persistent, or pervasive.”
99
However, in
Davis,
a case concerning sexual harassment of a fifth-grade student by another student, the Supreme Court did not adopt the Title VII definition of sexual harassment for use under Title IX, defining actionable sexual harassment for Title IX purposes as conduct that is “severe, pervasive,
and
objectively offensive.”
100
98
Meritor Sav. Bank, FSB
v.
Vinson,
477 U.S. 57, 67 (1986) (“For sexual harassment to be actionable, it must be sufficiently severe
or
pervasive to alter the conditions of [the victim's] employment and create an abusive working environment.”) (internal quotation marks and citation omitted) (emphasis added).
99
2001 Guidance at vi (stating that “the definition of hostile environment sexual harassment found in OCR's 1997 guidance . . . derives from Title VII caselaw”).
100
Davis,
526 U.S. at 652 (“Rather, in the context of student-on-student harassment, damages are available only where the behavior is so severe, pervasive,
and
objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect.”) (emphasis added).
The Department is persuaded by the Supreme Court's reasoning that elementary and secondary “schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable among adults.”
101
These final regulations also are consistent with the Equal Access Act, requiring that public secondary schools provide equal access to limited public forums without discriminating against the students “on the basis of the religious, political, philosophical, or other content of speech.”
102
101
Davis,
526 U.S. at 651-52 (citing
Meritor,
477 U.S. at 67).
102
20 U.S.C. 4071(a).
Similarly, an institution of higher education differs from the workplace. In this regard, these final regulations are consistent with the sense of Congress in the Higher Education Act of 1965, as amended, that “an institution of higher education should facilitate the free and open exchange of ideas.”
103
The sense of Congress is that institutions of higher education should facilitate the free and robust exchange of ideas,
104
but such an exchange may prove disruptive, undesirable, or impermissible in the workplace. Moreover, workplaces are generally expected to be free from conduct and conversation of a sexual nature, and it is common for employers to prohibit or discourage employees from engaging in romantic interactions at work.
105
By contrast, it has become expected that college and university students enjoy personal freedom during their higher education experience,
106
and it is not common for an institution to prohibit or discourage students from engaging in romantic interactions in the college environment.
107
103
20 U.S.C. 1101a(a)(2)(C).
104
20 U.S.C. 1101a(a)(2)(C).
105
See, e.g.,
Vicki Schultz,
The Sanitized Workplace,
112 Yale L. J. 2061, 2191 (2003) (examining the trend through the twentieth century toward a societal expectation that workplaces must be rational environments “devoid of sexuality and other distracting passions” in which employers “increasingly ban or discourage employee romance” and observing that both feminist theory and classical-management theory supported this trend, the former on equality grounds and the latter on efficiency grounds, but arguing that workplaces should instead focus on sex equality without “chilling intimacy and solidarity among employees of both a sexual and nonsexual variety.”);
cf.
Rebecca K. Lee,
The Organization as a Gendered Entity: A Response to Professor Schultz's “The Sanitized Workplace”,
15 Columbia J. of Gender & Law 609 (2006) (rebutting the notion that a sexualized workplace culture would be beneficial for sex equality, arguing that the “probable harms” would “outweigh the possible benefits of allowing sexuality to prosper in the work organization” and defending the “sexuality-constrained organizational paradigm in light of concerns regarding the role of work, on-the-job expectations, and larger workplace dynamics.”).
106
Kristen Peters,
Protecting the Millennial College Student,
16 S. Cal. Rev. of L. & Social Justice 431, 437 (2007) (noting that the doctrine of
in loco parentis
in the higher education context diminished in the 1960s and “[b]y the early 1970s, college students had successfully vindicated their contractual and civil rights, redefining the college-student relationship to emphasize student freedom and abrogate college authority.”) (internal citations omitted).
107
Justin Neidig,
Sex, Booze, and Clarity: Defining Sexual Assault on a College Campus,
16 William & Mary J. of Women & the L. 179, 180-81 (2009) (“College is an exciting and often confusing time for students. This new experience is defined by coed dorms, near constant socializing that often involves alcohol, and the ability to retreat to a private room with no adult supervision. The environment creates a socialization process where appropriate behavior is defined by the actions of peers, particularly when it comes to sexual behavior.”) (internal citations omitted).
The Department does not wish to apply the same definition of actionable sexual harassment under Title VII to Title IX because such an application would equate workplaces with educational environments, whereas both the Supreme Court and Congress have noted the unique differences of educational environments from workplaces and the importance of respecting the unique nature and purpose of educational environments. As discussed further in the “Sexual Harassment” subsection of the “Section 106.30 Definitions” section of this preamble, applying the same definition of actionable sexual harassment under Title VII to Title IX may continue to cause recipients to chill and infringe upon the First Amendment freedoms of students, teachers, and faculty by broadening the scope of prohibited speech and expression.
The Department's use of the
Davis
definition of sexual harassment in these final regulations returns to the Department's intent stated in the 2001 Guidance: That the Department's definition of sexual harassment should be consistent with the definition of sexual harassment in
Davis.
The
Davis
definition of sexual harassment adopted in these final regulations, adapted by the Department's inclusion of
quid pro quo
harassment and the four Clery Act/VAWA offenses, will help prevent infringement of First Amendment freedoms, clarify confusion by precisely defining sexual violence independent from the
Davis
definition, clarify the intersection among Title IX, the Clery Act, and VAWA with respect to sex-based offenses, and ensure that recipients must respond to students and employees victimized by sexual harassment that jeopardizes a person's equal educational access.
Recipients may continue to address harassing conduct that does not meet the § 106.30 definition of sexual harassment, as acknowledged by the Department's change to § 106.45(b)(3)(i)
to clarify that dismissal of a formal complaint because the allegations do not meet the Title IX definition of sexual harassment, does not preclude a recipient from addressing the alleged misconduct under other provisions of the recipient's own code of conduct.
108
108
Section 106.45(b)(3). Similarly, nothing in these final regulations prevents a recipient from addressing conduct that is outside the Department's jurisdiction due to the conduct constituting sexual harassment occurring outside the recipient's education program or activity, or occurring against a person who is not located in the United States.
Actual Knowledge
The Department adopts and adapts the
Gebser/Davis
framework's condition of “actual knowledge.”
109
The Supreme Court held that a recipient with actual knowledge of sexual harassment commits intentional discrimination (if the recipient responds in a deliberately indifferent manner).
110
Because Title IX is a statute “designed primarily to prevent recipients of Federal financial assistance from using the funds in a discriminatory manner,”
111
it is a recipient's
own
misconduct—not the sexually harassing behavior of employees, students, or other third parties—that subjects the recipient to liability in a private lawsuit under Title IX, and the recipient cannot commit its own misconduct unless the recipient first knows of the sexual harassment that needs to be addressed.
112
Because Congress enacted Title IX under its Spending Clause authority, the obligations it imposes on recipients are in the nature of a contract.
113
The Supreme Court held that “a damages remedy will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf has actual knowledge of discrimination in the recipient's programs and fails adequately to respond.”
114
The Supreme Court reasoned that it would be “unsound” for the Court to allow a private lawsuit (with the potential for money damages) against a recipient when the statute's administrative enforcement scheme imposes a requirement that before an agency may terminate Federal funds the agency must give notice to “an appropriate person” with the recipient who then may decide to voluntarily take corrective action to remedy the violation.
115
The Supreme Court reasoned that a “central purpose of requiring notice of the violation `to the appropriate person' and an opportunity for voluntary compliance before administrative enforcement proceedings can commence is to avoid diverting education funding from beneficial uses where a recipient was unaware of discrimination in its programs and is willing to institute prompt corrective measures.”
116
109
Davis,
526 U.S. at 642 (stating that actual knowledge ensures that liability arises from “an official decision by the recipient not to remedy the violation”) (citing
Gebser,
524 U.S. at 290) (internal quotation marks omitted).
110
Gebser,
524 U.S. at 287-88 (“If a school district's liability for a teacher's sexual harassment rests on principles of constructive notice or
respondeat superior,
it will likewise be the case that the recipient of funds was unaware of the discrimination. It is sensible to assume that Congress did not envision a recipient's liability in damages in that situation.”).
111
Gebser,
524 U.S. at 292;
Cannon,
441 U.S. at 704 (noting that the primary congressional purposes behind Title IX were “to avoid the use of Federal resources to support discriminatory practices” and to “provide individual citizens effective protection against those practices.”).
112
E.g.,
Julie Davies,
Assessing Institutional Responsibility for Sexual Harassment in Education,
77 Tulane L. Rev. 387, 402 (2002) (analyzing the
Gebser/Davis
framework and noting, “The Court concluded that a funding recipient's contract with the federal government encompassed only a promise not to discriminate, not an agreement to be held liable when employees discriminate.”).
113
Gebser,
524 U.S. at 286;
Davis,
526 U.S. at 640.
114
Gebser,
524 U.S. at 290.
115
Id.
at 289-90 (“Because the express remedial scheme under Title IX is predicated upon notice to an `appropriate person' and an opportunity to rectify any violation, 20 U.S.C. 1682, we conclude, in the absence of further direction from Congress, that the implied damages remedy should be fashioned along the same lines. An `appropriate person' under § 1682 is, at a minimum, an official of the recipient entity with authority to take corrective action to end the discrimination.”).
116
Id.
at 289. The Court continued, “When a teacher's sexual harassment is imputed to a school district or when a school district is deemed to have `constructively' known of the teacher's harassment, by assumption the district had no actual knowledge of the teacher's conduct. Nor, of course, did the district have an opportunity to take action to end the harassment or to limit further harassment.”
Id.
The Supreme Court thus rejected theories of vicarious liability (
e.g., respondeat superior
) and constructive notice as the basis for a recipient's Title IX liability in private Title IX lawsuits.
117
The Supreme Court noted that the Department's 1997 Guidance held schools responsible under vicarious liability and constructive notice theories.
118
Neither
Gebser
nor
Davis
indicated whether the Department's administrative enforcement of Title IX should continue to rely on vicarious liability and constructive notice as conditions triggering a recipient's response obligations.
117
Id.; Davis,
526 U.S. at 650.
118
Gebser,
524 U.S. at 282 (plaintiffs in
Gebser
advocated for private lawsuit liability based on vicarious liability and constructive notice in part by looking at the Department's 1997 Guidance which relied on both theories).
These final regulations adopt the actual knowledge condition from the
Gebser/Davis
framework so that these final regulations clearly prohibit a recipient's own intentional discrimination,
119
but adapt the
Gebser/Davis
condition of actual knowledge to include notice to more recipient employees than what is required under the
Gebser/Davis
framework,
120
in a way that takes into account the different needs and expectations of students in elementary and secondary schools, and in postsecondary institutions, with respect to sexual harassment and sexual harassment allegations.
121
These final regulations apply an adapted condition of actual knowledge in ways that are similar to, and different from, the Department's approach in guidance as to when notice of sexual harassment triggers a recipient's response obligations. In other words, we tailor the Supreme Court's condition of actual knowledge to the unique context of administrative enforcement.
119
Section 106.30 (defining “actual knowledge” to include notice to any recipient's officials with authority to institute corrective measures on behalf of the recipient, thereby mirroring the
Gebser/Davis
condition of actual knowledge).
120
Section 106.30 (defining “actual knowledge” to include notice to any recipient's Title IX Coordinator, a position each recipient must designate and authorize for the express purpose of coordinating a recipient's compliance with Title IX obligations, including specialized training for the Title IX Coordinator, requirements not found in the
Gebser/Davis
framework); § 106.8(a); § 106.45(b)(1)(iii).
121
Section 106.30 (defining “actual knowledge” to include notice to “any employee” in an elementary and secondary school, a condition not found in the
Gebser/Davis
framework).
The Department's guidance used a “responsible employees” rubric to describe the pool of employees to whom notice triggered the recipient's response obligations. The “responsible employees” rubric in guidance did not differentiate between elementary and secondary schools, and postsecondary institutions. For all recipients, Department guidance stated that a “responsible employee” was an employee who “has the authority to take action to redress the harassment,” or “who has the duty to report to appropriate school officials sexual harassment or any other misconduct by students or employees,” or an individual “who a student could reasonably believe has this authority or responsibility.”
122
Under the
responsible employees rubric in guidance, the recipient was liable when a responsible employee “knew,” or when a responsible employee “should have known,” about possible harassment.
123
122
2001 Guidance at 13-14; 1997 Guidance (while not using the same three-part definition of “responsible employees” as the 2001 Guidance, giving examples of a “responsible employee” to include “a principal, campus security, bus driver, teacher, an affirmative action officer, or staff in the office of student affairs”); 2011 Dear Colleague Letter at 4 (while not using the term “responsible employees,” stating that a school must respond whenever it “knows or reasonably should know” about sexual harassment);
id.
at 2 (stating that “This
letter supplements the 2001 Guidance by providing additional guidance and practical examples regarding the Title IX requirements as they relate to sexual violence” thus indicating that the 2011 Dear Colleague Letter did not alter the 2001 Guidance's approach to responsible employees); 2014 Q&A at 14 (“According to OCR's 2001 Guidance, a responsible employee includes any employee: who has the authority to take action to redress sexual violence; who has been given the duty of reporting incidents of sexual violence or any other misconduct by students to the Title IX coordinator or other appropriate school designee; or whom a student could reasonably believe has this authority or duty.”); 2017 Q&A 1-2 (citing to the 2001 Guidance for the proposition that a school must respond whenever the school “knows or reasonably should know” of a sexual misconduct incident and that in addition to a Title IX Coordinator other employees “may be responsible employees”).
123
1997 Guidance (a school is liable where it “knows or should have known”); 2001 Guidance at 13 (“A school has notice if a responsible employee knew, or in the exercise of reasonable care should have known, about the harassment.”) (internal quotation marks omitted); 2011 Dear Colleague Letter at 4; 2014 Q&A at 2 (“OCR deems a school to have notice of student-on-student sexual violence if a responsible employee knew, or in the exercise of reasonable care should have known, about the sexual violence.”); 2017 Q&A at 1.
For reasons discussed below, these final regulations do not use the “responsible employees” rubric, although these final regulations essentially retain the first of the three categories of the way guidance described “responsible employees.”
124
As discussed below, these final regulations depart from the “should have known” condition that guidance indicated would trigger a recipient's response obligations.
124
The § 106.30 definition of “actual knowledge” including notice to “any official of the recipient who has authority to institute corrective measures on behalf of the recipient” is the equivalent of the first portion of the definition of “responsible employees” in Department guidance (
e.g.,
2001 Guidance at 13), that included any employee who “has the authority to take action to redress the harassment.”
See also
Merle H. Weiner,
A Principled and Legal Approach to Title IX Reporting,
85 Tenn. L. Rev. 71, 140 (2017) (“The Supreme Court's definition of an `appropriate person' ” as an `official who at a minimum has authority to address the alleged discrimination and to institute corrective measures' is “very close to the first category [of responsible employees] in OCR's guidance.”) (citing
Gebser,
524 U.S. at 290).
Rather than using the phrase “responsible employees,” these final regulations describe the pool of employees to whom notice triggers the recipient's response obligations. That pool of employees is different in elementary and secondary schools than in postsecondary institutions. For all recipients, notice to the recipient's Title IX Coordinator or to “any official of the recipient who has authority to institute corrective measures on behalf of the recipient” (referred to herein as “officials with authority”) conveys actual knowledge to the recipient and triggers the recipient's response obligations. Determining whether an individual is an “official with authority” is a legal determination that depends on the specific facts relating to a recipient's administrative structure and the roles and duties held by officials in the recipient's own operations. The Supreme Court viewed this category of officials as the equivalent of what 20 U.S.C. 1682 calls an “appropriate person” for purposes of the Department's resolution of Title IX violations with a recipient.
125
Lower Federal courts applying the
Gebser/Davis
actual knowledge condition have reached various results with respect to whether certain employees in an elementary and secondary school, or in a postsecondary institution, are officials with authority to whom notice conveys actual knowledge to the recipient.
126
Because these final regulations adopt the
Gebser/Davis
condition describing a recipient's actual knowledge as resulting from notice to an official with authority, but also include the recipient's Title IX Coordinator and any elementary and secondary school employee, the fact-specific nature of whether certain officials of the recipient qualify as officials with authority does not present a barrier to reporting sexual harassment and requiring schools, colleges, and universities to respond promptly.
125
Gebser,
524 U.S. at 290 (“Because the express remedial scheme under Title IX is predicated upon notice to an `appropriate person' and an opportunity to rectify any violation, 20 U.S.C. 1682, we conclude, in the absence of further direction from Congress, that the implied damages remedy should be fashioned along the same lines. An `appropriate person' under § 1682 is, at a minimum, an official of the recipient entity with authority to take corrective action to end the discrimination.”).
126
With respect to elementary and secondary schools,
see
Julie Davies,
Assessing Institutional Responsibility for Sexual Harassment in Education,
77 Tulane L. Rev. 387, 398, 424-26 (2002) (reviewing cases decided under the
Gebser/Davis
framework and noting that courts reached different results regarding teachers, principals, school boards, and superintendents, and concluding that “The legal authority of individuals to receive notice is clearly relevant and a basis for their inclusion as parties to whom notice may be given, but courts must also evaluate the factual reality.”) With respect to postsecondary institutions,
see
Merle H. Weiner,
A Principled and Legal Approach to Title IX Reporting,
85 Tenn. L. Rev. 71, 139 (2017) (“Overall, this category is rather narrow and the identity of the relevant employees rests on an institution's own policies regarding who has the authority to take action to redress sexual violence.”).
Under these final regulations, in elementary and secondary schools, notice to “any employee” (in addition to notice to the Title IX Coordinator or to any official with authority) triggers the recipient's response obligations, so there is no longer a need to use the responsible employees rubric. Under these final regulations, an elementary and secondary school must respond whenever
any
employee has notice of sexual harassment or allegations of sexual harassment, so there is no need to distinguish among employees who have “authority to redress the harassment,” have the “duty to report” misconduct to appropriate school officials, or employees who “a student could reasonably believe” have that authority or duty.
127
In the elementary and secondary school setting where school administrators, teachers, and other employees exercise a considerable degree of control and supervision over their students, the Department believes that requiring a school district to respond when its employees know of sexual harassment (including reports or allegations of sexual harassment) furthers Title IX's non-discrimination mandate in a manner that best serves the needs and expectations of students.
128
The Department is persuaded by commenters who asserted that students in elementary and secondary schools often talk about sexual harassment experiences with someone other than their teacher, and that it is unreasonable to expect young students to differentiate among employees for the purpose of which employees' knowledge triggers the school's response obligations and which do not. Elementary and secondary schools generally operate under the doctrine of
in loco parentis,
under which the school stands “in the place of” a parent with respect to certain authority over, and responsibility for, its students.
129
Further, employees at
elementary and secondary schools typically are mandatory reporters of child abuse under State laws for purposes of child protective services.
130
The Department is persuaded that employees at elementary and secondary schools stand in a unique position with respect to students and that a school district should be held accountable for responding to sexual harassment under Title IX when the school district's employees have notice of sexual harassment or sexual harassment allegations.
127
See
2001 Guidance at 13.
128
Davis,
526 U.S. at 646 (noting that a public school's power over its students is “custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults”) (citing
Veronica Sch. Dist.
v.
Acton,
515 U.S. 646, 655 (1995)).
129
Todd A. Demitchell,
The Duty to Protect: Blackstone's Doctrine of In Loco Parentis: A Lens for Viewing the Sexual Abuse of Students,
2002 BYU Educ. & L. J. 17, 19-20 (2002) (“Acting in the place of parents is an accepted and expected role assumed by educators and their schools. This doctrine has been recognized in state statutes and court cases. For example, the United States Supreme Court noted that there exists an `obvious concern on the part of parents, and school authorities acting
in loco parentis,
to protect children—especially in a captive audience—from exposure to sexually explicit, indecent, or lewd speech. [Citing to
Bethel Sch. Dist. No. 403
v.
Fraser ex rel. Fraser,
478 U.S. 675, 684 (1986).] According to the Supreme Court, school officials have
authority over students by virtue of
in loco parentis
and a concomitant duty of protection. It has been asserted that
in loco parentis
is a sub-set of government's broad common law power of
parens patriae.”
) (internal citations omitted).
130
See
Ala. Code § 26-14-3; Alaska Stat. § 47.17.020; Ariz. Rev. Stat. § 13-3620; Ark. Code Ann. § 12-18-402; Cal. Penal Code § 11165.7; Colo. Rev. Stat. § 19-3-304; Conn. Gen. Stat. § 17a-101; Del. Code Ann. tit. 16, § 903; DC Code § 4-1321.02; Fla. Stat. § 39.201; Ga. Code Ann. § 19-7-5; Haw. Rev. Stat. § 350-1.1; Idaho Code Ann. § 16-1605; 325 Ill. Comp. Stat. § 5/4; Ind. Code § 31-33-5-1; Iowa Code § 232.69; Kan. Stat. Ann. § 38-2223; Ky. Rev. Stat. Ann. § 620.030; La. Child Code Ann. art. 603(17); Me. Rev. Stat. tit. 22, § 4011-A; Md. Code Ann., Fam. Law § 5-704; Mass. Gen. Laws ch. 119, § 21; Mich. Comp. Laws § 722.623; Minn. Stat. § 626.556; Miss. Code. Ann. § 43-21-353; Mo. Ann Stat. § 210.115; Mont. Code Ann. § 41-3-201; Neb. Rev. Stat. § 28-711; Nev. Rev. Stat. § 432B.220; N.H. Rev. Stat. Ann. § 169-C:29; N.J. Stat. Ann. § 9:6-8.10; N.M. Stat. Ann. § 32A-4-3; N.Y. Soc. Serv. Law § 413; N.C. Gen. Stat. Ann. § 7B-301; N.D. Cent. Code Ann. § 50-25.1-03; Ohio Rev. Code Ann. § 2151.421; Okla. Stat. tit. 10A, § 1-2-101; Or. Rev. Stat. § 419B.010; 23 Pa. Cons. Stat. Ann § 6311; R.I. Gen. Laws § 40-11-3(a); S.C. Code Ann. § 63-7-310; S.D. Codified Laws § 26-8A-3; Tenn. Code Ann. § 37-1-403; Tex. Fam. Code § 261.101; Utah Code Ann. § 62A-4a-403; Vt. Stat. Ann. tit. 33, § 4913; Va. Code Ann. § 63.2-1509; Wash. Rev. Code § 26.44.030; W. Va. Code § 49-2-803; Wis. Stat. § 48.981; Wyo. Stat. Ann. § 14-3-205.
In postsecondary institutions, where
in loco parentis
does not apply,
131
notice to the Title IX Coordinator or any official with authority conveys actual knowledge to the recipient. Triggering a recipient's response obligations only when the Title IX Coordinator or an official with authority has notice respects the autonomy of a complainant in a postsecondary institution better than the responsible employee rubric in guidance. As discussed below, the approach in these final regulations allows postsecondary institutions to decide which of their employees must, may, or must only with a student's consent, report sexual harassment to the recipient's Title IX Coordinator (a report to whom always triggers the recipient's response obligations, no matter who makes the report). Postsecondary institutions ultimately decide which officials to authorize to institute corrective measures on behalf of the recipient. The Title IX Coordinator and officials with authority to institute corrective measures on behalf of the recipient fall into the same category as employees whom guidance described as having “authority to redress the sexual harassment.”
132
In this manner, in the postsecondary institution context these final regulations continue to use one of the three categories of “responsible employees” described in guidance.
131
E.g., Wagner
v.
Holtzapple,
101 F. Supp. 3d 462, 472-73 (M.D. Penn. 2015) (noting that “the law surrounding the student-university relationship has changed considerably in a relatively short period of time. `The early period of American higher education, prior to the 1960s, was exclusively associated with the doctrine of
in loco parentis.' ”
) (citing to Jason A. Zwara,
Student Privacy, Campus Safety, and Reconsidering the Modern Student-University Relationship,
38 Journal of Coll. & Univ. L. 419, 432-33, 436 (2012) (“
In loco parentis
was applied in the early period of higher education law to prevent courts or legislatures from intervening in the student-university relationship, thus insulating the institution from criminal or civil liability or regulation . . . . Courts began to shift away from
in loco parentis
beginning in the civil rights era of the 1960s through a number of cases addressing student claims for constitutional rights, in particular due process rights and free speech” and courts now generally view the student-university relationship as one governed by contract) (internal quotation marks and citations omitted)).
132
The § 106.30 definition of “actual knowledge” as including notice to “any official of the recipient who has authority to institute corrective measures on behalf of the recipient” is the equivalent of the portion of the definition of “responsible employees” in Department guidance (
e.g.,
2001 Guidance at 13) that included any employee who “has the authority to take action to redress the harassment.”
See also
Merle H. Weiner,
A Principled and Legal Approach to Title IX Reporting,
85 Tenn. L. Rev. 71, 140 (2017) (“The Supreme Court's definition of an `appropriate person'” as an `official who at a minimum has authority to address the alleged discrimination and to institute corrective measures' is “very close to the first category [of responsible employees] in OCR's guidance.”) (citing
Gebser,
524 U.S. at 290).
With respect to postsecondary institutions, these final regulations depart from using the other two categories of “responsible employees” described in guidance (those who have a “duty to report” misconduct, and those whom a “student could reasonably believe” have the requisite authority or duty). As discussed below, in the postsecondary institution context, requiring the latter two categories of employees to be mandatory reporters (as Department guidance has) may have resulted in college and university policies that have unintentionally discouraged disclosures or reports of sexual harassment by leaving complainants with too few options for disclosing sexual harassment to an employee without automatically triggering a recipient's response. Elementary and secondary school students cannot be expected to distinguish among employees to whom disclosing sexual harassment results in a mandatory school response, but students at postsecondary institutions may benefit from having options to disclose sexual harassment to college and university employees who may keep the disclosure confidential. These final regulations ensure that all students and employees are notified of the contact information for the Title IX Coordinator and how to report sexual harassment for purposes of triggering a recipient's response obligations, and the Department believes that students at postsecondary institutions benefit from retaining control over whether, and when, the complainant wants the recipient to respond to the sexual harassment that the complainant experienced.
In both the elementary and secondary school context and the postsecondary institution context, the final regulations use the same broad conception of what might constitute “notice” as the Department's guidance used. Notice results whenever any elementary and secondary school employee, any Title IX Coordinator, or any official with authority: Witnesses sexual harassment; hears about sexual harassment or sexual harassment allegations from a complainant (
i.e.,
a person alleged to be the victim) or a third party (
e.g.,
the complainant's parent, friend, or peer); receives a written or verbal complaint about sexual harassment or sexual harassment allegations; or by any other means.
133
These final regulations emphasize that any person may always trigger a recipient's response obligations by reporting sexual harassment to the Title IX Coordinator using contact information that the recipient must post on the recipient's website.
134
The person who reports does not need to be the complainant (
i.e.,
the person alleged to be the victim); a report may be made by “any person”
135
who believes that sexual harassment may have occurred and requires a recipient's response.
133
E.g.,
2001 Guidance at 13.
134
Section 106.30 (defining “actual knowledge” to mean notice, where “notice” includes but is not limited to a report to the Title IX Coordinator as described in § 106.8(a)); § 106.8(b) (requiring the Title IX Coordinator's contact information to be displayed prominently on the recipient's website); § 106.8(a) (stating that any person may report sexual harassment (whether or not the person reporting is the person alleged to be the victim) using the contact information listed for the Title IX Coordinator or any other means that results in the Title IX Coordinator receiving the person's verbal or written report, and that a report may be made at any time, including during non-business hours, by using the listed telephone number or email address, or by mail to the listed office address, for the Title IX Coordinator).
135
Section 106.8(a) (specifying that “any person may report” sexual harassment).
The final regulations depart from the constructive notice condition described in Department guidance that stated that
a recipient must respond if a recipient's responsible employees “should have known” about sexual harassment. The Department's guidance gave only the following examples of circumstances under which a recipient “should have known” about sexual harassment: When “known incidents should have triggered an investigation that would have led to discovery of [ ] additional incidents,” or when “the pervasiveness” of the harassment leads to the conclusion that the recipient “should have known” of a hostile environment.
136
136
2001 Guidance at 13-14 (“[A] school has a duty to respond to harassment about which it reasonably should have known,
i.e.,
if it would have learned of the harassment if it had exercised reasonable care or made a reasonably diligent inquiry. For example, in some situations if the school knows of incidents of harassment, the exercise of reasonable care should trigger an investigation that would lead to a discovery of additional incidents. In other cases, the pervasiveness of the harassment may be enough to conclude that the school should have known of the hostile environment—if the harassment is widespread, openly practiced, or well-known to students and staff (such as sexual harassment occurring in the hallways, graffiti in public areas, or harassment occurring during recess under a teacher's supervision.”) (internal citations omitted); 1997 Guidance (same); 2014 Q&A at 2 (same). The 2011 Dear Colleague Letter at 1-2, and the 2017 Q&A at 1, did not describe the circumstances under which a school “should have known” but referenced the 2001 Guidance on this topic.
The Department has reconsidered the position that a recipient's response obligations are triggered whenever employees “should have known” because known incidents “should have triggered an investigation that would have led to discovery” of additional incidents.
137
The final regulations impose clear obligations as to when a recipient must investigate allegations. Unlike the Department's guidance, which did not specify the circumstances under which a recipient must investigate and adjudicate sexual harassment allegations, the final regulations clearly obligate a recipient to investigate and adjudicate whenever a complainant files, or a Title IX Coordinator signs, a formal complaint.
138
The Department will hold recipients responsible for a recipient's failure or refusal to investigate a formal complaint.
139
However, the Department does not believe it is feasible or necessary to speculate on what an investigation “would have” revealed if the investigation had been conducted. Even if there are additional incidents of which a recipient “would have” known had the recipient conducted an investigation into a known incident, each of the additional incidents involve complainants who also have the clear option and right under these final regulations to file a formal complaint that requires the recipient to investigate, or to report the sexual harassment and trigger the recipient's obligation to respond by offering supportive measures (and explaining to the complainant the option of filing a formal complaint).
140
If a recipient fails to meet its Title IX obligations with respect to any complainant, the Department will hold the recipient liable under these final regulations, and doing so does not necessitate speculating about what an investigation “would have” revealed.
137
2001 Guidance at 13.
138
Section 106.44(b)(1) (stating a recipient must investigate in response to a formal complaint); § 106.30 (defining “formal complaint” as a written document filed by a complainant or signed by a Title IX Coordinator requesting that the recipient investigate allegations of sexual harassment against a respondent, where “document filed by a complainant” also includes an electronic submission such as an email or use of an online portal if the recipient provides one for filing formal complaints).
139
Section 106.44(b)(1).
140
Section 106.8(a) (stating any person may report sexual harassment using the Title IX Coordinator's listed contact information); § 106.8(b) (stating recipients must prominently display the Title IX Coordinator's contact information on their websites); § 106.44(a) (stating recipients must respond promptly to actual knowledge of sexual harassment by, among other things, offering supportive measures to the complainant regardless of whether a formal complaint is filed, and by explaining to the complainant the process for filing a formal complaint).
The Department has reconsidered the position that a recipient's response obligations are triggered whenever employees “should have known” due to the “pervasiveness” of sexual harassment.
141
In elementary and secondary schools, the final regulations charge a recipient with actual knowledge whenever any employee has notice. Thus, if sexual harassment is “so pervasive” that some employee “should have known” about it (
e.g.,
sexualized graffiti scrawled across lockers that meets the definition of sexual harassment in § 106.30), it is highly likely that at least one employee did know about it and the school is charged with actual knowledge. There is no reason to retain a separate “should have known” standard to cover situations that are “so pervasive” in elementary and secondary schools. In postsecondary institutions, when sexual harassment is “so pervasive” that some employees “should have known” it is highly likely that at least one employee did know about it. However, in postsecondary institutions, for reasons discussed below, the Department believes that complainants will be better served by allowing the postsecondary institution recipient to craft and apply the recipient's own policy with respect to which employees must, may, or must only with a complainant's consent, report sexual harassment and sexual harassment allegations to the Title IX Coordinator. With respect to whether a Title IX Coordinator or official with authority in a postsecondary institution “should have known” of sexual harassment, the Department believes that imposing a “should have known” standard unintentionally creates a negative incentive for Title IX Coordinators and officials with authority to inquire about possible sexual harassment in ways that invade the privacy and autonomy of students and employees at postsecondary institutions, and such a negative consequence is not necessary because the final regulations provide every student, employee, and third party with clear, accessible channels for reporting to the Title IX Coordinator,
142
which gives the Title IX Coordinator notice and triggers the recipients' response obligations,
143
without the need to require Title IX Coordinators and officials with authority to potentially invade student and employee privacy or autonomy.
144
141
2001 Guidance at 13-14.
142
Section 106.8(a) (requiring every recipient to list the office address, telephone number, and email address for the Title IX Coordinator and stating that any person may report sexual harassment by using the listed contact information, and that a report may be made at any time (including during non-business hours) by using the telephone number or email address, or by mail to the office address, listed for the Title IX Coordinator); § 106.8(b) (requiring recipients to list the Title IX Coordinator's contact information on recipient websites).
143
Section 106.30 (defining “actual knowledge” to mean notice to the Title IX Coordinator and stating that “notice” includes but is not limited to a report to the Title IX Coordinator as described in § 106.8(a)).
144
The 2014 Q&A acknowledged one of the drawbacks of a condition that triggers a postsecondary institution's response obligations whenever a Title IX Coordinator or official with authority “should have known” about a student's disclosure of sexual harassment: Under such a condition, whenever the Title IX Coordinator or other officials with authority know about public awareness events (such as “Take Back the Night” events) where survivors are encouraged to safely talk about their sexual assault experiences, those recipient officials would be obligated to (a) attend such events and (b) respond to any sexual harassment disclosed at such an event by contacting each survivor, offering them supportive measures, documenting the institution's response to the disclosure, and all other recipient's response obligations, including an investigation. 2014 Q&A at 24. Failure to do so would be avoiding having learned about campus sexual assault incidents that could have been discovered with due diligence (
i.e.,
the Title IX Coordinator and other university officials “should have known” about the experiences disclosed by survivors at such events).
Id.
Understanding the drawbacks of this kind of rule, the 2014 Q&A carved out an exception, but without explaining how or why the exception would apply only to “public awareness events” and
not, for example, also extend to Title IX Coordinators and other postsecondary institution officials with authority needing to inquire into students' (and employees') private affairs whenever there was any indication that a student or employee
may
be suffering the impact of sexual harassment.
Id.
(“OCR wants students to feel free to participate in preventive education programs and access resources for survivors. Therefore, public awareness events such as `Take Back the Night' or other forums at which students disclose experiences with sexual violence are not considered notice to the school for the purpose of triggering an individual investigation unless the survivor initiates a complaint.”).
The Department's guidance did not use the term “mandatory reporters” but the 2001 Guidance expected responsible employees to report sexual harassment to “appropriate school officials”
145
and the withdrawn 2014 Q&A specified that responsible employees must report to the Title IX Coordinator.
146
As of 2017 many (if not most) postsecondary institutions had policies designating nearly all their employees as “responsible employees” and “mandatory reporters.”
147
The “explosion” in postsecondary institution policies making nearly all employees mandatory reporters (sometimes referred to as “wide-net” or universal mandatory reporting) was due in part to the broad, vague way that “responsible employees” were defined in Department guidance.
148
The extent to which a wide-net or universal mandatory reporting system for employees in postsecondary institutions is beneficial, or detrimental, to complainants, is difficult to determine,
149
and research (to date) is inconclusive.
150
What research does demonstrate is that respecting an alleged victim's autonomy,
151
giving alleged victims control over how official systems respond to an alleged victim,
152
and offering clear options to alleged victims
153
are critical aspects of helping an alleged victim recover from sexual harassment. Unsupportive institutional responses increase the effects of trauma on complainants,
154
and institutional betrayal may occur when an institution's mandatory reporting policies require a complainant's intended private conversation about sexual assault to result in a report to the Title IX Coordinator.
155
145
2001 Guidance at 13.
146
2014 Q&A at 14;
cf. id.
at 22 (exempting responsible employees who have counseling roles from being obligated to report sexual harassment to the Title IX Coordinator in a way that identifies the student).
147
Merle H. Weiner,
A Principled and Legal Approach to Title IX Reporting,
85 Tenn. L. Rev. 71, 77-78 (2017) (“Today the overwhelming majority of institutions of higher education designate virtually all of their employees as responsible employees and exempt only a small number of `confidential' employees. Kathryn Holland, Lilia Cortina, and Jennifer Freyd recently examined reporting policies at 150 campuses and found that policies at 69 percent of the institutions made all employees mandatory reporters, policies at 19 percent of the institutions designated nearly all employees as mandatory reporters, and only 4 percent of institutional policies named a limited list of reporters. The authors concluded, `[T]hese findings suggest that the great majority of U.S. colleges and universities—regardless of size or public vs. private nature—have developed policies designating most if not all employees (including faculty, staff, and student employees) as mandatory reporters of sexual assault.' At some institutions, these reporting obligations have even been incorporated into employees' contracts.”) (citing an “accepted for publication” version of Kathryn Holland
et al., Compelled disclosure of college sexual assault,
73 Am. Psychologist 3, 256 (2018)).
148
Merle H. Weiner,
A Principled and Legal Approach to Title IX Reporting,
85 Tenn. L. Rev. 71, 79-80 (2017) (analyzing the “explosion” of universal or near-universal mandatory reporting policies, which the author calls “wide-net reporting policies” and finding a root of that trend in Department guidance: “The question was raised whether this language [in Department guidance] meant all employees had to be made responsible employees. For example, John Gaal and Laura Harshbarger, writing in the
Higher Education Law Report
asked, `And does OCR really mean that any employee who has any `misconduct' reporting duty is a `responsible employee' ? . . . We simply do not know.' Administrators started concluding, erroneously, that any employee who has an obligation to report any other misconduct at the institution must be labeled a responsible employee. Several OCR resolution letters issued at the end of 2016 bolstered this broad interpretation.”) (internal citations omitted; ellipses in original).
149
Merle H. Weiner,
A Principled and Legal Approach to Title IX Reporting,
85 Tenn. L. Rev. 71, 82-83 (2017) (stating institutions with “wide-net reporting policies” defend such policies by “claiming that they are best for survivors” for reasons such as enabling institutions to “identify victims in order to offer them resources and support” and allowing institutions “to collect data on the prevalence of sexual assault and to ensure that perpetrators are identified and disciplined.”) (internal citations omitted);
cf. id.
at 83-84 (stating institutional justifications “make wide-net reporting policies appear consistent with the spirit of Title IX, insofar as they seem consistent with institutional commitments to reduce campus sexual violence . . . . Even if wide-net policies were once thought beneficial to help break a culture of silence around sexual violence in the university setting, the utilitarian calculus has now changed and these policies do more harm than good.”) (internal citations omitted);
id.
at 84 (summarizing the “harm survivors experience when they are involuntarily thrust into a system designed to address their victimization” and arguing that “wide-net” mandatory reporting policies “undermine [survivors'] autonomy and sense of institutional support, aggravating survivors' psychological and physical harm. These effects can impede survivors' healing, directly undermining Title IX's objective of ensuring equal access to educational opportunities and benefits regardless of gender. In addition, . . . because of the negative consequences of reporting, wide-net reporting policies discourage students from talking to any faculty or staff on campus. Fewer disclosures result in fewer survivors being connected to services and fewer offenders being held accountable for their acts. Holding perpetrators accountable is critical for creating a climate that deters acts of violence. Because wide-net policies chill reporting, these policies violate the spirit of Title IX.”) (internal citations omitted).
150
Merle H. Weiner,
A Principled and Legal Approach to Title IX Reporting,
85 Tenn. L. Rev. 71, 78-79 (2017) (“The number of institutions with broad policies, sometimes known as universal mandatory reporting or required reporting, and hereafter called `wide-net' reporting policies, has grown over time. Approximately fifteen years ago, in 2002, only 45 percent of schools identified some mandatory reporters on their campuses, and these schools did not necessarily categorize almost every employee in that manner. The trend since then is notable, particularly because it contravenes the advice from a [study published in 2002 using funds provided by the National Institute of Justice, Heather M. Karjane
et al., Campus Sexual Assault: How America's Institutions of Higher Education Respond
120, Final Report, NIJ Grant #1999-WA-VX-0008 (Education Development Center, Inc. 2002)]. The authors of that study suggested that wide-net reporting policies were unwise. After examining almost 2,500 institutions of higher education, they warned: `Any policy or procedure that compromises, or worse, eliminates the student victim's ability to make her or his own informed choices about proceeding through the reporting and adjudication process—such as mandatory reporting requirements that do not include an anonymous reporting option or require the victim to participate in the adjudication process if the report is filed—not only reduces reporting rates but may be counterproductive to the victim's healing process.'”) (internal citations omitted);
id.
at 102 (concluding that wide-net reporting policies “clearly inhibit the willingness of some students to talk to a university employee about an unwanted sexual experience. This effect is not surprising in light of studies on the effect of mandatory reporting in other contexts. Studies document that women sometimes refuse to seek medical care when their doctors are mandatory reporters, or forego calling the police when a state has a mandatory arrest law.”) (internal citations omitted);
id.
at 104-05 (citing to “conflicting research” about whether college and university mandatory reporting policies chill reporting, concluding that available research has not empirically demonstrated the alleged benefits of mandatory reporting policies in colleges and universities, and arguing that without further research, colleges and universities should carefully design reporting policies that “can accommodate both the students who would be more inclined and less inclined to report with a mandatory reporting policy.”) (internal citations omitted).
151
Margaret Garvin & Douglas E. Beloof,
Crime Victim Agency: Independent Lawyers for Sexual Assault Victims,
13 Ohio St. J. of Crim. Law 67, 69-70 (2015) (explaining that “autonomy” has come to mean “the capacity of an individual for self-governance combined with the actual condition of self-governance in an absolute state of freedom to choose unconstrained by external influence” and the related concept of “agency” has emerged to mean “self-definition” (“fundamental determination of how one conceives of oneself both as an individual and as a community member”) and “self-direction” (“the charting of one's direction in life”)) (internal citations omitted);
id.
at 71-72 (agency “is critically important for crime victims. Research reveals that for some victims who interact with the criminal justice system, participation is beneficial. It can allow them to experience improvement in depression and quality of life, provide a sense of safety and protection, and validate the harm done by the offender. For other victims, interaction with the criminal justice system leads to a harm beyond that of the original crime, a harm that is often referred to as `secondary victimization' and which is recognized to have significant negative impacts on victims. . . . A significant part of what accounts for the difference in experience is whether victims have the ability to meaningfully choose whether, when, how, and to what extent to meaningfully participate in the system and exercise their rights. In short, the difference in experience is explained by the existence—or lack of—agency.”) (internal citations omitted).
152
E.g.,
Patricia A. Frazier
et al., Coping Strategies as Mediators of the Relations Among Perceived Control and Distress in Sexual Assault Survivors,
52 Journal of Counseling Psychol. 3 (2005) (control over the recovery process was associated with less emotional distress for sexual assault victims, partly because that kind of “present control” was associated with less social withdrawal and more cognitive restructuring.); Ryan M. Walsh & Steven E. Bruce,
The Relationships Between Perceived Levels of Control, Psychological Distress, and Legal System Variables in a Sample of Sexual Assault Survivors,
17 Violence Against Women 603, 611 (2011) (finding that “a perception by victims that they are in control of their recovery process” is an “important factor” reducing post-traumatic stress and depression).
153
E.g.,
Nancy Chi Cantalupo,
For the Title IX Civil Rights Movement: Congratulations and Cautions,
125 Yale J. of L. & Feminism. 281, 291 (2016) (arguing against State law proposals that would require mandatory referral to law enforcement of campus sexual assault incidents in part because such laws would limit “the number and diversity of reporting options that victims can use”); Merle H. Weiner,
A Principled and Legal Approach to Title IX Reporting,
85 Tenn. L. Rev. 71, 117 (2017) (“Schools expose survivors to harm when they turn a disclosure into either an involuntary report to law enforcement or an involuntary report to the Title IX office.”).
154
Lindsey L. Monteith
et al., Perceptions of Institutional Betrayal Predict Suicidal Self-Directed Violence Among Veterans Exposed to Military Sexual Trauma,
72 J. of Clinical Psychol. 743, 750 (2016);
see also
Rebecca Campbell
et al., An Ecological Model of the Impact of Sexual Assault on Women's Mental Health,
10 Trauma, Violence & Abuse 225, 234 (2009) (survivors of sexual violence already feel powerless, and policies that increase a survivor's lack of power over their situation contribute to the trauma they have already experienced).
155
Merle H. Weiner,
Legal Counsel for Survivors of Campus Sexual Violence,
29 Yale J. of L. & Feminism 123, 140-141 (2017) (identifying one type of institutional betrayal as the harm that occurs when “the survivor thinks she is speaking to a confidential resource, but then finds out the advocate cannot keep their conversations private”); Michael A. Rodriguez,
Mandatory Reporting Does Not Guarantee Safety,
173 W. J. of Med. 225, 225 (2000) (mandatory reporting by doctors of patient intimate partner abuse may negatively impact victims by making them less likely to seek medical care and compromising the patient's autonomy).
Throughout these final regulations the Department aims to respect the autonomy of complainants and to recognize the importance of a complainant retaining as much control as possible over their own circumstances following a sexual harassment experience, while also ensuring that complainants have clear information about how to access the supportive measures a recipient has available (and how to file a formal complaint initiating a grievance process against a respondent if the complainant chooses to do so) if and when the complainant desires for a recipient to respond to the complainant's situation.
156
The Department recognizes the complexity involved in determining best practices with respect to which employees of postsecondary institutions should be mandatory reporters versus which employees of postsecondary institutions should remain resources in whom students may confide without automatically triggering a report of the student's sexual harassment situation to the Title IX Coordinator or other college or university officials.
157
156
Section 106.44(a) (describing a recipient's general response obligations).
157
E.g.,
Merle H. Weiner,
A Principled and Legal Approach to Title IX Reporting,
85 Tenn. L. Rev. 71, 188 (2017) (“The classification of employees as [mandatory] reporters should include those who students expect to have the authority to redress the violence or the obligation to report it, and should exclude those who students turn to for support instead of for reporting. Faculty should not be designated reporters, but high-level administrators should be. Schools should carefully consider how to classify employees who are resident assistants, campus police, coaches, campus security authorities, and employment supervisors. A well-crafted policy will be the product of thoughtful conversations about online reporting, anonymous reporting, third-party reports, and necessary exceptions for situations involving minors and imminent risks of serious harm.”).
Through the actual knowledge condition as defined and applied in these final regulations, the Department intends to ensure that every complainant in a postsecondary institution knows that if or when the complainant desires for the recipient to respond to a sexual harassment experience (by offering supportive measures, by investigating allegations, or both), the complainant has clear, accessible channels by which to report and/or file a formal complaint.
158
The Department also intends to leave postsecondary institutions wide discretion to craft and implement the recipient's own employee reporting policy to decide (as to employees who are not the Title IX Coordinator and not officials with authority) which employees are mandatory reporters (
i.e.,
employees who must report sexual harassment to the Title IX Coordinator), which employees may listen to a student's or employee's disclosure of sexual harassment without being required to report it to the Title IX Coordinator, and/or which employees must report sexual harassment to the Title IX Coordinator but only with the complainant's consent. No matter how a college or university designates its employees with respect to mandatory reporting to the Title IX Coordinator, the final regulations ensure that students at postsecondary institutions, as well as employees, are notified of the Title IX Coordinator's contact information and have clear reporting channels, including options accessible even during non-business hours,
159
for reporting sexual harassment in order to trigger the postsecondary institution's response obligations.
158
Section 106.8(a) (requiring recipients to notify students, employees, and others of the contact information for their Title IX Coordinators and stating that any person may report sexual harassment by using that contact information, and that reports can be made during non-business hours by mail to the listed office address or by using the listed telephone number or email address); § 106.8(b) (requiring a recipient to post the Title IX Coordinator's contact information on the recipient's website); § 106.30 (defining “formal complaint” and providing that any complainant may file a formal complaint by using the email address, or by mail to the office address, listed for the Title IX Coordinator, or by any additional method designated by the recipient).
159
Section 106.8 (stating that a report of sexual harassment may be made at any time, including during non-business hours, by using the telephone number or email address, or by mail to the office address, listed for the Title IX Coordinator, and requiring recipients to prominently display the Title IX Coordinator's contact information on the recipient's website).
As to all recipients, these final regulations provide that 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 (such as a volunteer parent, or alumnus) as an official with authority to institute corrective measures on behalf of the recipient.
160
The Department does not wish to discourage recipients from training individuals who interact with the recipient's students about how to report sexual harassment, including informing students about how to report sexual harassment. Accordingly, the Department will not assume that a person is an official with authority solely based on the fact that the person has received training on how to report sexual harassment or has the ability or obligation to report sexual harassment. Similarly, the Department will not conclude that volunteers and independent contractors are officials with authority, unless the recipient has granted the volunteers or independent contractors authority to institute corrective measures on behalf of the recipient.
160
Section 106.30 (defining “actual knowledge”).
Deliberate Indifference
Once a recipient is charged with actual knowledge of sexual harassment in its education program or activity, it becomes necessary to evaluate the recipient's response. Although the Department is not required to adopt the deliberate indifference standard articulated in the
Gebser/Davis
framework, we believe that deliberate indifference, with adaptions for administrative enforcement, constitutes the best policy approach to further Title IX's non-discrimination mandate.
As the Supreme Court explained in
Davis,
a recipient acts with deliberate indifference only when it responds to
sexual harassment in a manner that is “clearly unreasonable in light of the known circumstances”
161
because for a recipient with actual knowledge to respond in a clearly unreasonable manner constitutes the recipient committing intentional discrimination.
162
The deliberate indifference standard under the
Gebser/Davis
framework is the starting point under these final regulations, so that the Department's regulations clearly prohibit instances when the recipient chooses to permit discrimination. The Department tailors this standard for administrative enforcement, to hold recipients accountable for responding meaningfully every time the recipient has actual knowledge of sexual harassment through a general obligation to not act clearly unreasonably in light of the known circumstances, and specific obligations that each recipient must meet as part of its response to sexual harassment.
161
Davis,
526 U.S. at 648-49.
162
Gebser,
524 U.S. at 290 (deliberate indifference ensures that the recipient is liable for “its own official decision” to permit discrimination).
Based on consideration of the text and purpose of Title IX, the reasoning underlying the Supreme Court
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