Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance

Federal RegisterJul 12, 2022

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DEPARTMENT OF EDUCATION

34 CFR Part 106

[Docket ID ED-2021-OCR-0166]

RIN 1870-AA16

Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance

AGENCY:

Office for Civil Rights, Department of Education.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The U.S. Department of Education (Department) proposes to amend the regulations implementing Title IX of the Education Amendments of 1972 (Title IX). The purpose of the proposed regulations is to better align the Title IX regulatory requirements with Title IX's nondiscrimination mandate, and to clarify the scope and application of Title IX and the obligation of all schools, including elementary schools, secondary schools, postsecondary institutions, and other recipients that receive Federal financial assistance from the Department (referred to below as recipients or schools) to provide an educational environment free from discrimination on the basis of sex, including through responding to incidents of sex discrimination. The Department recognizes that schools vary in size, student populations, and administrative structure. The proposed regulations would enable all schools to meet their obligations to comply fully with Title IX while providing them appropriate discretion and flexibility to account for these variations.

DATES:

Comments must be received on or before September 12, 2022.

ADDRESSES:

Comments must be submitted via the Federal eRulemaking Portal at

http://www.regulations.gov

. However, if you require an accommodation or cannot otherwise submit your comments via

http://www.regulations.gov

, please contact the program contact person listed under

FOR FURTHER INFORMATION CONTACT

. The Department will not accept comments by fax or by email, or comments submitted after the comment period closes. To ensure that the Department does not receive duplicate copies, please submit your comments only once. Additionally, please include the Docket ID at the top of your comments.

The Department strongly encourages you to submit any comments or attachments in Microsoft Word format. If you must submit a comment in Adobe Portable Document Format (PDF), the Department strongly encourages you to convert the PDF to “print-to-PDF” format, or to use some other commonly used searchable text format. Please do not submit the PDF in a scanned format. Using a print-to-PDF format allows the Department to electronically search and copy certain portions of your submissions to assist in the rulemaking process.

•

Federal eRulemaking Portal:

Please go to

http://www.regulations.gov

to submit your comments electronically. Information on using

http://www.regulations.gov

, including instructions for finding a rule on the site and submitting comments, is available on the site under “FAQ.”

Note:

The Department's policy is to generally make comments received from members of the public available for public viewing on the Federal eRulemaking Portal at

http://www.regulations.gov

. Therefore, commenters should include in their comments only information about themselves that they wish to make publicly available. Commenters should not include in their comments any information that identifies other individuals or that permits readers to identify other individuals. If, for example, your comment describes an experience of someone other than yourself, please do not identify that individual or include information that would allow readers to identify that individual. The Department will not make comments that contain personally identifiable information (PII) about someone other than the commenter publicly available on

http://www.regulations.gov

for privacy reasons. This may include comments where the commenter refers to a third-party individual without using their name if the Department determines that the comment provides enough detail that could allow one or more readers to link the information to the third party. If your comment refers to a third-party individual, to help ensure that your comment is posted, please consider submitting your comment anonymously to reduce the chance that information in your comment about a third party could be linked to the third party. The Department will also not make comments that contain threats of harm to another person or to oneself available on

http://www.regulations.gov

FOR FURTHER INFORMATION CONTACT:

Alejandro Reyes, U.S. Department of Education, 400 Maryland Ave. SW, PCP-6125, Washington, DC 20202. Telephone: 202-245-7705. You may also email your questions to

T9NPRM@ed.gov

, but as described above, comments must be submitted via the Federal eRulemaking Portal at

http://www.regulations.gov

If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1.

SUPPLEMENTARY INFORMATION:

Executive Summary

Purpose of This Regulatory Action

The Department's review of the current regulations and of information received during and pursuant to a week-long public hearing as well as stakeholder listening sessions and meetings suggest that the current regulations do not best fulfill the requirement of Title IX of the Education Amendments of 1972 (Title IX) that schools and institutions that receive Federal financial assistance eliminate discrimination on the basis of sex in their education programs or activities. The Department therefore proposes that the current regulations should be amended to provide greater clarity regarding the scope of sex discrimination, including recipients' obligations not to discriminate based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. Further, the Department proposes that the current regulations could better account for the variety of education programs or activities covered by Title IX, which include recipients' education programs or activities serving students in elementary schools, secondary schools, and postsecondary institutions.

The Department makes these proposals based on an extensive review of its regulations implementing Title IX, as well as the live and written comments received during a nationwide virtual public hearing on Title IX held in June 2021. In addition, in 2021, the Office for Civil Rights held numerous listening sessions with a wide array of stakeholders on various issues related to Title IX and considered input from stakeholders during meetings held in 2022 under Executive Order 12866, after the NPRM was submitted to OMB.

Executive Order on Regulatory Planning and Review,

E.O. 12866, 58 FR 51735 (Oct. 4, 1993),

https://www.govinfo.gov/content/pkg/FR-1993-10-04/pdf/FR-1993-10-04.pdf

. To address these concerns, the Department proposes amending the Title IX regulations to:

• Require recipients to adopt grievance procedures that provide for the prompt and equitable resolution of complaints of sex discrimination and take other necessary steps to provide an educational environment free from sex discrimination;

Throughout this preamble, the term “sex discrimination” means “discrimination on the basis of sex” as that language is used in the statutory text of Title IX.

• Clarify the Department's view of the scope of Title IX's prohibition on sex discrimination, including related to a

hostile environment under the recipient's education program or activity, as well as discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity; and

• Clarify a recipient's obligations to students and employees who are pregnant or experiencing pregnancy-related conditions.

Summary of the Major Provisions of This Regulatory Action

With regard to sex-based harassment (as defined in proposed § 106.2), the proposed regulations would:

• Define sex-based harassment to include but not be limited to sexual harassment;

• Provide and clarify, as appropriate, definitions of various terms related to a recipient's obligations to address sex discrimination, including sex-based harassment;

• Clarify how a recipient is required to take action to end any sex discrimination that has occurred in its education program or activity, prevent its recurrence, and remedy its effects; and

• Clarify a recipient's obligations related to the grievance procedures and other necessary steps when it receives a complaint of sex discrimination.

With regard to discrimination against individuals who are pregnant or parenting, the proposed regulations would:

• Define the term “pregnancy or related conditions” and the term “parental status,” and prohibit discrimination against students and applicants for admission or employment on the basis of current, potential, or past pregnancy or related conditions; and

• Clarify a recipient's obligations to students and employees who are pregnant or experiencing related conditions.

In addition, the proposed regulations would:

• Articulate the Department's understanding that sex discrimination includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity;

• Clarify and streamline administrative requirements with respect to designating a Title IX Coordinator, disseminating a nondiscrimination notice, adopting grievance procedures, and recordkeeping;

• Specify that a recipient must train a range of relevant persons on the recipient's obligations under Title IX;

• Clarify that, unless otherwise provided by Title IX or the regulations, a recipient must not carry out any otherwise permissible different treatment or separation on the basis of sex in a way that would cause more than de minimis harm, including by adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity; and

• Clarify a recipient's obligation to address retaliation.

Costs and Benefits

As further detailed in the

Regulatory Impact Analysis,

the Department estimates that the total monetary cost savings to recipients of the proposed regulations over ten years would be in the range of $9.8 million to $28.2 million. Although the Department cannot quantify, in monetary terms, the benefits of the proposed regulations to those who have been subjected to sex discrimination, the Department recognizes that sex discrimination, including sex-based harassment, can have profound and long-lasting economic costs for students, employees, and other members of a recipient's surrounding community.

See, e.g.,

Centers for Disease Control and Prevention,

Fast Facts: Preventing Sexual Violence, https://www.cdc.gov/violenceprevention/sexualviolence/fastfact.html

(last visited June 16, 2022) (describing the economic impact of sexual violence involving physical contact on male and female victims within their lifetimes); Cora Peterson et al.,

Lifetime Economic Burden of Intimate Partner Violence Among U.S. Adults,

55 a.m. J. Preventative Med. 433 (2018) (estimating the economic impact of intimate partner violence on male and female victims within their lifetimes). The Department now believes that these proposed regulations more effectively fulfill Title IX's guarantee that a recipient's education program or activity is free from sex discrimination. As proposed, the Department's preliminary view is that these amendments would lower the costs associated with sex discrimination, thereby producing a demonstrable benefit for students, employees, and others participating in a recipient's education program or activity. In the

Regulatory Impact Analysis,

the Department estimates the likely monetary costs of this regulatory action for recipients. The clarification of grievance procedures required for all forms of sex discrimination and adoption of new reporting and notification framework for employees will carry some costs. The Department notes that although it cannot fully quantify the economic impact of the proposed regulations, the Department believes that these benefits are substantial and would significantly outweigh the estimated costs of the proposed regulations.

The Department also acknowledges that the proposed regulations deviate from some past agency statements on Title IX's coverage of discrimination based on sexual orientation and gender identity. As explained in the

Regulatory Impact Analysis,

the Department believes that any costs associated with the shift away from its most recent prior interpretation would be minimal. For example, the proposed requirement to permit students to participate in a recipient's education program or activity consistent with their gender identity may require updating of policies or training materials, but would not require significant expenditures, such as construction of new facilities. The Department proposes that the benefits associated with this change—increased protection of students from sex discrimination and better alignment of the regulations with Title IX's nondiscrimination mandate—far outweigh any costs.

Invitation to Comment:

The Department invites you to submit comments regarding the proposed regulations. To ensure that your comments have the maximum effect on developing the final regulations, you should identify clearly the specific section or sections of the proposed regulations that each of your comments addresses and arrange your comments in the same order as the proposed regulations.

The Department invites you to assist us in complying with the specific requirements of Executive Orders 12866 and 13563 (explained further below) and their overall goal of reducing the regulatory burden that might result from the proposed regulations. Please let the Department know of any further ways that it may reduce potential costs or increase potential benefits, while preserving the effective and efficient administration of the Department's programs and activities. The Department also welcomes comments on any alternative approaches to the subjects addressed by the proposed regulations.

During and after the comment period, you may inspect public comments about the proposed regulations by accessing

Regulations.gov

. You may also inspect the comments in person. Please contact the person listed under

FOR FURTHER INFORMATION CONTACT

to make

arrangements to inspect the comments in person.

Assistance to Individuals With Disabilities in Reviewing the Rulemaking Record:

Upon request, the Department will provide an appropriate accommodation or auxiliary aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for the proposed regulations. To schedule an appointment for this type of accommodation or auxiliary aid, please contact the person listed under

FOR FURTHER INFORMATION CONTACT

Table of Contents

Background

• History of Title IX's Nondiscrimination Mandate and Related Regulations

• The Department's Review of the Title IX Regulations

• Significant Proposed Regulations

I. Provisions of General Applicability

II. Recipient's Obligation to Operate Its Education Program or Activity Free from Sex Discrimination

III. Pregnancy and Parental Status

IV. Title IX's Coverage of All Forms of Sex Discrimination

V. Retaliation

VI. Outdated Regulatory Provisions

VII. Directed Questions

• Regulatory Impact Analysis

Background

The mission of the Department's Office for Civil Rights (OCR) is to ensure equal access to education and to promote educational excellence through vigorous enforcement of civil rights in our nation's schools. One of the Federal civil rights laws that OCR enforces is Title IX, which prohibits discrimination on the basis of sex under education programs or activities that receive Federal financial assistance. 20 U.S.C. 1681-1688. Unfortunately, sex discrimination—sometimes overlapping with other forms of discrimination, such as race discrimination and disability discrimination—remains a serious problem, keeping affected students from benefiting fully from their school's education programs and activities.

In March 2021, President Joseph R. Biden, Jr. issued the Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity, and directed the Secretary of Education, in consultation with the Attorney General, to review all existing regulations, orders, guidance documents, policies and any other similar agency actions for consistency with Title IX and other governing laws. The goal of the Executive Order was to ensure “that all students [are] guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity.”

Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity,

E.O. 14021, 86 FR 13803 (Mar. 11, 2021),

https://www.govinfo.gov/content/pkg/FR-2021-03-11/pdf/2021-05200.pdf

Also, as set out in the Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, issued in January 2021, this Administration's policy is “to prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII [of the Civil Rights Act of 1964] and other laws that prohibit discrimination on the basis of gender identity or sexual orientation.”

Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation,

E.O. 13988, 86 FR 7023 (Jan. 25, 2021),

https://www.govinfo.gov/content/pkg/FR-2021-01-25/pdf/2021-01761.pdf

. That Executive Order further noted that under the reasoning of

Bostock

Clayton County,

140 S. Ct. 1731 (2020), “[l]aws that prohibit sex discrimination—including Title IX of the Education Amendments Act of 1972, as amended (20 U.S.C. 1681

et seq.

) . . . along with their respective implementing regulations—prohibit discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.”

Id.

Like Executive Order 14021, Executive Order 13988 directed the Secretary of Education, in consultation with the Attorney General, to “review all existing orders, regulations, guidance documents, policies, programs, or other agency actions” promulgated under any statute or regulation that prohibits sex discrimination for their consistency with the stated policy.

Id.

As these Executive Orders directed, the Department conducted an extensive review of its Title IX regulations and policy documents for consistency with Title IX's statutory prohibition on sex discrimination in federally funded education programs or activities. This review included careful consideration of the comments and feedback received during a nationwide virtual public hearing on Title IX that OCR held in June 2021, OCR's numerous listening sessions in 2021 with a wide array of individuals and organizations on various Title IX issues, and meetings with stakeholders held in 2022 under Executive Order 12866, after the NPRM was submitted to the Office of Management and Budget (OMB). Office of Management and Budget, Office of Information and Regulatory Affairs, Reginfo.gov,

http://reginfo.gov/public

(last visited June 2, 2022). Based on that review and input, the Department proposes that the current regulations should be amended to support full implementation of Title IX's prohibition on sex discrimination under a recipient's education program or activity.

In its review, the Department heard two overarching concerns from students, parents, recipients, advocates, and other concerned stakeholders, namely that: (1) there is a need for greater clarity on how to ensure that complaints of sex-based harassment are resolved in a prompt and equitable manner; and (2) the current regulations do not adequately clarify or specify the scope of sex discrimination prohibited by Title IX, including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, or gender identity. The Department has determined that more clarity and greater specificity would better equip recipients of Federal funding

to create and maintain school environments free from sex discrimination. This, in turn, will help recipients ensure that all persons have equal access to educational opportunities in accordance with Title IX's nondiscrimination mandate.

The text of Title IX states that the statute applies to “any education program or activity receiving Federal financial assistance.” 20 U.S.C. 1681(a). The definition of the term “Federal financial assistance” under the Title IX regulations is not limited to monetary assistance, but encompasses various types of in-kind assistance, such as a grant or loan of real or personal property, or provision of the services of Federal personnel.

See

34 CFR 106.2(g)(2) and (3). Throughout this preamble, terms such as “Federal funding,” “Federal funds,” and “federally funded” are used to refer to “Federal financial assistance,” and are not meant to limit application of the statute or its implementing regulations to recipients of certain types of Federal financial assistance.

The goal of the Department's proposed regulations is thus to fully effectuate Title IX by clarifying and specifying the scope and application of Title IX protections and recipients' obligation not to discriminate on the basis of sex. Specifically, this proposed regulatory action focuses on ensuring that recipients prevent and address sex discrimination, including but not limited to sex-based harassment, in their education programs or activities;

clarifying the scope of Title IX's protection for students and others who are participating or attempting to participate in a recipient's education program or activity; defining important terms related to a recipient's obligations under Title IX; ensuring the provision of supportive measures, as appropriate to restore or preserve a complainant's or respondent's access to the recipient's education program or activity; clarifying a recipient's responsibilities toward students who are pregnant or experiencing pregnancy-related conditions; and clarifying that Title IX's prohibition on sex discrimination encompasses discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. In addressing confusion about coverage of sex-based harassment in the current regulations, the Department's proposed regulations also set out requirements that enable recipients to meet their obligations in settings that vary in size, student populations, and administrative structure. The proposed regulatory action would strengthen the current framework, clarify the scope and application of Title IX, and fully align the Title IX regulations with the nondiscrimination mandate of Title IX.

I. History of Title IX's Nondiscrimination Mandate and Related Regulations

Enacted in 1972, Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. 1681(a).

Title IX is cast in broad terms. It imposes, as a condition on receipt of Federal funds for education programs or activities, a blanket prohibition on sex-based discrimination, with a small number of “specific, narrow exceptions to that broad prohibition.”

Jackson

Birmingham Bd. of Educ.,

544 U.S. 167, 175 (2005). Congress did not limit Title IX's nondiscrimination condition to conduct engaged in “by” the recipient or its agents, but rather extended it to any “exclu[sion] from participation in,” “deni[al of] the benefits of,” or “subject[ion] to discrimination under,” any recipient's education program or activity. Congress drafted Title IX “with an unmistakable focus on the benefited class,” and did not “writ[e] it simply as a ban on discriminatory conduct by recipients of federal funds or as a prohibition against the disbursement of public funds to educational institutions engaged in discriminatory practices.”

Cannon

Univ. of Chi.,

441 U.S. 677, 691-93 (1979).

Eliminating sex discrimination rooted in stereotypical perceptions of women's abilities, competence, and worthiness to participate in educational programs—as both student and employee—was also fundamental to Title IX.

See generally

118 Cong. Rec. 5803-12 (1972) (statement of Sen. Birch Bayh). According to Senator Birch Bayh, Title IX's sponsor in the U.S. Senate, discrimination in postsecondary education was driven by the widespread, but false, perception that the duty or desire of women to get married and bear children made them disinterested in pursuing education or professional achievement.

Id.

at 5804. Because of this stereotype, many American schools did not wish to “waste a `man's place' on a woman.”

Id.

Thus, Senator Bayh said sex discrimination in “admissions, scholarship programs, faculty, hiring and promotion, professional staffing, and pay scales,” was “one of the great failings of the American educational system.”

Id.

at 5803.

Title IX authorizes and directs the Department, as well as other agencies “to effectuate the provisions of section 1681 of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken.” 20 U.S.C. 1682.

In 1979, the Supreme Court explained in

Cannon

University of Chicago

that the objectives of Title IX are two-fold: first, to “avoid the use of federal resources to support discriminatory practices” and second, to “provide individual citizens effective protection against those practices.” 441 U.S. at 704. In 1982, the Court clarified the broad scope of Title IX in

North Haven Board of Education

Bell,

stating: “[I]f we are to give Title IX the scope that its origins dictate, we must accord it a sweep as broad as its language.” 456 U.S. 512, 521 (1982) (citations and internal alterations omitted). Throughout this preamble, when the Department refers to Title IX's nondiscrimination mandate or requirement, it means the directive of the statutory text, including Title IX's purposes and prohibition on sex discrimination as set out in

Cannon

and

North Haven Board of Education.

In 1975, the Department's predecessor, the Department of Health, Education, and Welfare (HEW), first promulgated regulations under Title IX

after multiple Congressional hearings. 121 Cong. Rec. 20467 (1975) (statement of Sen. Birch Bayh). They were also subject to a statutory “laying before” provision, designed to afford Congress an opportunity to examine the proposed regulations and disapprove them by resolution within 45 days if deemed inconsistent with Title IX.

N. Haven Bd. of Educ.,

456 U.S. at 531-32. The Supreme Court has held that the fact that no such resolution succeeded “strongly implies” Congress' agreement with the Title IX regulations.

Grove City Coll.

Bell,

465 U.S. 555, 568 (1984);

N. Haven Bd. of Educ.,

456 U.S. at 533-35.

45 CFR part 86 (1975). In 1980, Congress created the United States Department of Education. Public Law 96-88, sec. 201, 93 Stat. 669, 671 (1979); Exec. Order No. 12212, 45 FR 29557 (May 5, 1980). By operation of law, all of HEW's determinations, rules, and regulations continued in effect and all functions of HEW's Office for Civil Rights, with respect to educational programs, were transferred to the Secretary of Education. 20 U.S.C. 3441(a)(3). The regulations implementing Title IX were recodified without substantive change in 34 CFR part 106.

See

45 FR 30802, 30955-65 (May 9, 1980).

The regulations were promulgated to effectuate the purposes of Title IX, specifically to “eliminate (with certain exceptions) discrimination on the basis of sex in any education program or activity receiving Federal financial assistance.” 34 CFR 106.1. The regulations implemented Title IX's nondiscrimination mandate through provisions that addressed sex discrimination in hiring, admissions, athletics, and other aspects of a recipient's education program or activity.

See generally

34 CFR part 106. Since 1975, the Department's Title IX regulations have required a recipient to take actions important for the prevention and elimination of sex discrimination, including by designating an employee to coordinate the recipient's efforts to comply with Title IX (34 CFR 106.8(a)), adopting a nondiscrimination policy (34 CFR 106.8(b)), adopting and publishing grievance procedures providing for prompt and equitable resolution of sex discrimination complaints (34 CFR 106.8(c)), and prohibiting discrimination against students and employees based on pregnancy and childbirth (34 CFR 106.40(b); 34 CFR 106.57). At that time, Federal courts had not yet addressed a recipient's Title IX obligations with respect to sex-based harassment (including sexual harassment), sex stereotyping, or discrimination based on sexual orientation and gender identity.

Since then, the understanding of Title IX has evolved through judicial

interpretation, with relevant case law supporting the broad reach of its nondiscrimination mandate, and OCR guidance and subsequent regulations evolving accordingly. In 1992, the Supreme Court held that, in some circumstances, a school district could be liable for monetary damages under Title IX if a teacher sexually harasses a student.

Franklin

Gwinnett Cnty. Pub. Sch.,

503 U.S. 60 (1992);

see also Wort

Vierling,

Case No. 82-3169, slip op. (C.D. Ill. Sept. 4, 1984),

aff'd on other grounds,

778 F.2d 1233 (7th Cir. 1985);

Muro

Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll.,

No. CV 19-10812, 2019 WL 5810308, at *3 (E.D. La. Nov. 7, 2019) (“Courts have held that discrimination on the basis of pregnancy, childbirth, or related medical conditions is a form of sex discrimination prohibited by Title IX.”);

Varlesi

Wayne State Univ.,

909 F. Supp. 2d 827, 854 (E.D. Mich. 2012) (“[P]regnancy discrimination . . . is unquestionably covered as a subset of sex discrimination under Title IX . . . .”).

Title IX regulations regarding pregnancy, which were part of the 1975 HEW regulations, prohibit recipients from discriminating against students or employees based on “pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom,” 34 CFR 106.40(b)(1), 106.57(b), and prohibit sex-based distinctions on the basis of “parental, family, or marital status,” 34 CFR 106.40(a), 106.57(a). In guidance documents from 1991 and 2013, OCR emphasized that discrimination against pregnant students is a form of sex discrimination that may have significant adverse consequences for educational attainment and long-term economic stability, but the Department's regulations regarding pregnancy have remained unchanged since 1975. The Department proposes updated regulations to ensure full implementation of Title IX with respect to pregnancy and related conditions. Although the proposed regulations are based exclusively on Title IX, the Department notes that later-enacted statutes provide additional context and considerations related to discrimination based on pregnancy and or related conditions. In 1978, for example, Congress enacted the Pregnancy Discrimination Act (PDA), which amended the prohibition on sex discrimination in Title VII of the Civil Rights Act of 1964 (Title VII) to prohibit employers from discriminating against employees “on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. 2000e. The PDA requires that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.”

Id.

In 2015, the Equal Employment Opportunity Commission (EEOC) issued enforcement guidance on pregnancy discrimination and related issues clarifying that Title VII, as amended by the PDA, prohibits discrimination based on current pregnancy, past pregnancy, potential or intended pregnancy, and medical conditions related to pregnancy or childbirth, including lactation. U.S. Equal Emp. Opportunity Comm'n, Enforcement Guidance on Pregnancy Discrimination and Related Issues (June 25, 2015) (2015 EEOC Pregnancy Guidance),

https://www.eeoc.gov/laws/guidance/enforcement-guidance-pregnancy-discrimination-and-related-issues

. Breastfeeding employees also have protections under the Affordable Care Act (ACA), which amended the Fair Labor Standards Act to require employers to provide reasonable break times and a private place, other than a bathroom, for covered employees who are breastfeeding to express milk for one year after the child's birth, 29 U.S.C. 207(r)(1). In addition, Section 188 of the Workforce Innovation and Opportunity Act (WIOA), enforced by the Department of Labor (DOL), prohibits WIOA Title I-financially assisted programs, activities, training, and services from discriminating based on pregnancy, childbirth, or related medical conditions, including lactation and pregnancy-related disorders, as a form of sex discrimination. U.S. Dep't of Labor, Implementation of the Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity Act, 29 CFR 38.7(a), 38.8 (2017). Because both Title VII and Title IX prohibit sex discrimination, the Supreme Court and lower Federal courts often rely on interpretations of Title VII to inform interpretations of Title IX, and both laws apply to employees in the educational context.

See, e.g., Franklin,

503 U.S. at 75;

Jennings

Univ. of N.C.,

482 F.3d 686, 695 (4th Cir. 2007);

Frazier

Fairhaven Sch. Comm.,

276 F.3d 52, 65-66 (1st Cir. 2002);

Gossett

Oklahoma ex rel. Bd. of Regents for Langston Univ.,

245 F.3d 1172, 1176 (10th Cir. 2001). Consequently, the treatment of pregnancy-related discrimination under the PDA, the ACA, and other statutes enacted since 1975 informs, though does not dictate, the Department's understanding of discrimination on the basis of sex under Title IX.

The Department's Title IX regulations have never directly addressed the application of Title IX to discrimination based on sexual orientation or gender identity. OCR first issued guidance on the rights of gay and lesbian students in its 1997 Sexual Harassment Guidance, recognizing that harassment of a sexual nature directed at gay or lesbian students may constitute sexual harassment prohibited by Title IX. U.S. Dep't of Educ., Office for Civil Rights, Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third

Parties, 62 FR 12034, 12039 (Mar. 13, 1997) (1997 Sexual Harassment Guidance) (revised in 2001),

https://www.govinfo.gov/content/pkg/FR-1997-03-13/pdf/97-6373.pdf

. OCR reinforced Title IX's coverage of this form of harassment in 2001. U.S. Dep't of Educ., Office for Civil Rights, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties at 3, noticed at 66 FR 5512 (Jan. 19, 2001) (rescinded upon effective date of 2020 amendments, Aug. 14, 2020) (2001 Revised Sexual Harassment Guidance),

www.ed.gov/ocr/docs/shguide.pdf

. Since then, OCR has recognized that Title IX prohibits discrimination based on gender identity.

See, e.g.,

U.S. Dep't of Educ., Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence at 5 (Apr. 29, 2014) (rescinded in 2017) (2014 Q&A on Sexual Violence),

www.ed.gov/ocr/docs/qa-201404-title-ix.pdf

; U.S. Dep't of Justice and U.S. Dep't of Educ., Office for Civil Rights, Dear Colleague Letter on Title IX and Transgender Students (May 13, 2016) (rescinded in 2017) (2016 Dear Colleague Letter on Title IX and Transgender Students),

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf

. Most recently, in 2021, OCR published a Notice of Interpretation in the

Federal Register

to state explicitly that Title IX's prohibition on sex discrimination encompasses discrimination on the basis of sexual orientation and gender identity, consistent with the Supreme Court's reasoning in

Bostock.

140 S. Ct. 1731; U.S. Dep't of Educ., Office for Civil Rights, Notice of Interpretation—Enforcement of Title IX with Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County, 86 FR 32637 (June 22, 2021) (2021 Bostock Notice of Interpretation),

https://www.govinfo.gov/content/pkg/FR-2021-06-22/pdf/2021-13058.pdf

Against this backdrop and for reasons described in this preamble, the Secretary proposes to amend the Title IX regulations at 34 CFR 106.1, 106.2, 106.6, 106.8, 106.11, 106.21, 106.30, 106.31, 106.40, 106.41, 106.44, 106.45, 106.46, 106.51, 106.57, 106.60, 106.71, and 106.81, as well as add new 106.10 and 106.47 and redesignate current 106.16 as 106.18 in subpart B and current 106.46 to 106.48 within subpart D. The Secretary also proposes to delete 34 CFR 106.3(c) and (d), 106.16, 106.17, 106.30, and 106.41(d) in their entirety, and delete portions of 34 CFR 106.15 and 106.21 to the extent they refer to 34 CFR 106.16 and 106.17.

II. The Department's Review of the Title IX Regulations

On April 6, 2021, OCR issued a letter to students, educators, and other stakeholders that provided information about the steps the Department was taking to review its regulations, orders, guidance, policies, and other similar agency actions under Title IX. U.S. Dep't of Educ., Office for Civil Rights, Letter from Acting Assistant Secretary Suzanne B. Goldberg to Students, Educators, and other Stakeholders re Exec. Order 14021 (Apr. 6, 2021),

http://www.ed.gov/ocr/correspondence/stakeholders/20210406-titleix-eo-14021.pdf

. This comprehensive review, as directed by Executive Order 14021, includes OCR's review of all agency actions, including the 2020 amendments, to determine whether changes to the Department's Title IX regulations are necessary to fulfill Title IX and OCR's commitment to ensuring equal and nondiscriminatory access to education for students at all educational levels.

Id.

at 2. OCR explained that its review would be guided by “our responsibility to ensure that schools are providing students with a nondiscriminatory educational environment, including appropriate supports for students who have experienced sexual harassment, including sexual violence, and other forms of sex discrimination.”

Id.

OCR also explained that “[t]his responsibility includes ensuring that schools have grievance procedures that provide for the fair, prompt, and equitable resolution of reports of sexual harassment and other sex discrimination, cognizant of the sensitive issues that are often involved.”

Id.

On May 20, 2021, OCR published a notice in the

Federal Register

announcing a nationwide virtual public hearing to gather information for the purpose of improving enforcement of Title IX. U.S. Dep't of Educ., Office for Civil Rights, Announcement of Public Hearing; Title IX of the Education Amendments of 1972, 86 FR 27429 (May 20, 2021),

https://www.govinfo.gov/content/pkg/FR-2021-05-20/pdf/2021-10629.pdf

. OCR expressed a particular interest in comments on the Title IX regulations related to sexual harassment, including the 2020 amendments, and comments on discrimination based on sexual orientation and gender identity in educational environments.

Id.

OCR requested live comments through the virtual hearing platform and written comments via email. The virtual hearing was held from June 7, 2021, to June 11, 2021. Over 280 students, parents, teachers, faculty members, school staff, administrators, and other members of the public provided live comments during the virtual public hearing. The transcript from the June 2021 Title IX Public Hearing is available at

https://www2.ed.gov/about/offices/list/ocr/docs/202106-titleix-publichearing-complete.pdf

. OCR received over 30,000 written comments via email. The written comments may be viewed at

https://www2.ed.gov/about/offices/list/ocr/public-hearing.html

In addition to soliciting live and written comments as part of the June 2021 Title IX Public Hearing, OCR also conducted listening sessions with stakeholders expressing a variety of views on the 2020 amendments and other aspects of Title IX, including advocates for survivors of sexual violence, students accused of sexual misconduct, and LGBTQI+

students; organizations focused on Title IX and athletics; organizations focused on free speech and due process; organizations representing elementary schools, secondary schools, and postsecondary institutions, teachers, administrators, and parents; attorneys representing survivors, accused students, and schools; State attorneys general offices; Title IX Coordinators and other school administrators; individuals who provide training on Title IX to schools; individuals who work in campus law enforcement; and individuals who have participated in school-level Title IX proceedings.

The Department generally uses the term “LGBTQI+” to refer to students who are lesbian, gay, bisexual, transgender, queer, questioning, asexual, intersex, nonbinary, or describe their sex characteristics, sexual orientation, or gender identity in another similar way. When referring to some outside resources or past OCR guidance documents, this preamble also uses variations of this acronym to track the content of those documents, as appropriate.

Responses to OCR's request for comments for the June 2021 Title IX Public Hearing and listening sessions with stakeholders revealed to OCR areas of concern and confusion following the implementation of the 2020 amendments. OCR heard from stakeholders that aspects of the new requirements were not well-suited to some or all educational environments or to effectively advancing Title IX's nondiscrimination mandate. More specifically, at the June 2021 Title IX Public Hearing and in listening sessions, elementary school and secondary school recipients expressed concern that certain requirements impeded their successful management of the day-to-

day school environment. At the postsecondary level, recipients expressed concern regarding the new requirement to provide a live hearing with advisor-conducted cross-examination (current § 106.45(b)(6)), both because of the increased administrative burden and because of the requirement's effect on students' willingness to bring forward complaints and participate in the grievance process. Other stakeholders also expressed that this requirement is unnecessarily adversarial, retraumatizing, chilling to students' willingness to report incidents, and not more effective than other means of determining whether a violation of the school's prohibition on sexual harassment occurred. Still other stakeholders urged the Department to preserve the live hearing and adversarial cross-examination requirements. These stakeholders stated that the hearing and cross-examination requirements ensured fundamental fairness in a high-stakes process in a way that is consistent with the tenets of the American justice system.

Some postsecondary recipients expressed concern that the requirements in the 2020 amendments intruded on their professional judgment and expertise about how best to respond to allegations of student misconduct in their educational environment. A variety of stakeholders, including some recipients, also expressed concerns about the limitations on a recipient's obligation to respond to notice of sexual harassment and the narrowing of the definition of “sexual harassment” from the Department's previous position (current §§ 106.30, 106.44). They suggested the limitations in the 2020 amendments allowed recipients to ignore conduct that could or would limit or deny access to their learning environment based on sex. Similarly, stakeholders expressed concerns that recipients refused to respond to complaints of a hostile environment based on sex in a program or activity because the initial sexually harassing conduct occurred off-campus or outside the United States (current § 106.44). OCR also heard from stakeholders who were concerned that the deliberate indifference standard was an inappropriately narrow standard of responsibility for the administrative enforcement context in light of Title IX's nondiscrimination mandate.

Stakeholders also requested that the Department clarify Title IX's application to issues not currently addressed, or not viewed by the stakeholders as addressed adequately, by the current regulations. In particular, stakeholders requested that the Department specify protections related to discrimination based on sexual orientation and gender identity. These requests noted the historical and ongoing discrimination experienced by LGBTQI+ students, the recent enactment of State laws restricting transgender students from participating in school consistent with their gender identity, and the void created by OCR's withdrawal of its 2016 Dear Colleague Letter on Title IX and Transgender Students. Other stakeholders urged that transgender students must not be permitted to participate in school consistent with their gender identity, either in all or certain circumstances. Stakeholders also requested that the Department clarify that discrimination based on sex characteristics is a form of sex discrimination and, in particular, that Title IX protects intersex students from discrimination. OCR also heard from stakeholders requesting clarification on Title IX's protections against pregnancy discrimination and its prohibition on rules that treat parents differently based on sex. The Department heard more from stakeholders in 2022 in meetings held under Executive Order 12866, after the NPRM was submitted to OMB.

Having considered the comments and other information received in connection with the June 2021 Title IX Public Hearing, 2021 listening sessions, and the 2022 meetings held under Executive Order 12866, the Department's proposed regulations aim to strengthen the current framework, improve clarity for recipients to facilitate their compliance, and better align the Title IX regulations with the nondiscrimination mandate of Title IX, particularly its goal of “provid[ing] individual citizens effective protection against [discriminatory] practices.”

Cannon,

441 U.S. at 704. The Department's goals are to clarify the scope of Title IX's protection from sex discrimination for students participating or attempting to participate in an education program or activity; to state in greater detail and with greater clarity than in the current regulations a recipient's responsibilities toward pregnant students; to ensure the provision of supportive measures, as available and appropriate, to those who experience any form of sex discrimination, including but not limited to sex-based harassment; and to ensure that recipients understand their obligation to address sex discrimination in their education programs or activities. The overarching goal is to ensure that no person experiences sex discrimination in education. To that end, the Department aims to ensure that all recipients can implement Title IX's nondiscrimination mandate fully and fairly in their educational environments, including with procedures for responding to complaints of sex discrimination that are prompt and equitable for all participants.

In reviewing the 2020 amendments, the Department also considered its regulations implementing other laws with requirements that parallel or overlap with a recipient's obligations under Title IX. For example, the Department considered the requirements for postsecondary institutions under the 2013 reauthorization of the Violence Against Women Act (VAWA 2013), Public Law 113-4, 304, 127 Stat. 54, 89-92, which amended the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act), 20 U.S.C. 1092(f) (2018). The Clery Act requires institutions of higher education participating in Federal financial aid programs under the Higher Education Act of 1965, 20 U.S.C. 1001

et seq.

(1965), to comply with certain campus safety- and security-related requirements. The 2013 VAWA amended the Clery Act to require higher education institutions to compile statistics for incidents of dating violence, domestic violence, sexual assault, and stalking and disclose that information in their annual security reports. 20 U.S.C. 1092(f)(1)(F)(iii). The Clery Act also requires disclosure of certain policies, procedures, and programs, including programs to prevent domestic violence, dating violence, sexual assault, and stalking and programs to promote the awareness of rape, acquaintance rape, domestic violence, dating violence, sexual assault, and stalking among students and employees. 20 U.S.C. 1092(f)(8)(A), (B). The Department issued regulations in 2014 to implement those changes to the statute. Final Rule, Violence Against Women Act: Institutional security policies and crime statistics, 79 FR 62752 (Oct. 20, 2014).

https://www.govinfo.gov/content/pkg/FR-2014-10-20/pdf/2014-24284.pdf

. The Violence Against Women Act Reauthorization Act of 2022 did not amend the Clery Act, but it did update the definitions of “dating violence,” “domestic violence,” and “stalking” in VAWA, which are incorporated into the Clery Act and the current and proposed Title IX regulations. Public Law 117-103, Division W, Consolidated Appropriations Act, 2022. The Department proposes updates to the 2020 amendments as necessary to account for these changes.

The Department acknowledges that recipients and other stakeholders may have made changes to their policies or procedures to align with the 2020 amendments. For example, schools have been required to revise existing policies and procedures, or adopt new policies and procedures, for the 2020-2021 school year and the current 2021-2022 school year in reliance on the 2020 amendments. Recipients' changes may include—among others—policies and procedures based on the 2020 amendments' adoption of a new definition of “sexual harassment” and “notice” as well as the deliberate indifference standard, mandatory dismissals, the requirement for postsecondary recipients to hold live hearings with cross-examination, and the training of Title IX Coordinators, investigators, decisionmakers, and other staff regarding the new requirements. However, stakeholder feedback from the June 2021 Public Hearing, the 2021 listening sessions, and the 2022 meetings held under Executive Order 12866 indicated that many recipients did not agree with the 2020 definition of “sexual harassment” and had found that some of the procedural requirements issued in 2020 made compliance more difficult for them. Recipients expressed concern that the mandatory dismissal requirements and live hearing and cross-examination requirements were having a chilling effect on students who might otherwise report sex-based harassment. The Department therefore has good reason to believe that many recipients would appreciate the flexibility the proposed regulations would afford them to better fulfill their obligation not to discriminate based on sex in their education programs or activities. For example, the proposed regulations would enable recipients to tailor procedures to be effective at addressing sex discrimination in their educational environment by providing an option to conduct live hearings with cross-examination or have the parties meet separately with the decisionmaker and answer questions submitted by the other party when a credibility assessment is necessary; an option to provide the parties an opportunity to review all relevant evidence instead of being obligated to produce a written investigative report; an option to offer informal resolution when appropriate without having to wait for a complaint to be filed; and an option to dismiss complaints when appropriate rather than an obligation to dismiss in specific circumstances. In addition, some stakeholders indicated that because the current regulations do not cover many forms of conduct that may cause a hostile environment based on sex in their program or activity, they created or repurposed alternative disciplinary policies to address such conduct. Such stakeholders would have discretion under the proposed regulations to keep in place policies and procedures they adopted in reliance on the 2020 amendments or to change course so long as they meet their obligations.

In addition, while the Department recognizes that there may be reliance interests related to the current regulations, the Department's tentative view is that the value of better aligning the regulations with the objectives of Title IX, as reflected in proposed revisions to the regulations, substantially outweighs those interests. The proposed changes would strengthen implementation of Title IX and reduce the occurrence of sex discrimination within federally funded education programs or activities. Sex discrimination remains a serious problem that can derail students from participating and thriving in school. The Department's proposed changes would clarify Title IX's coverage of all forms of sex discrimination, strengthen existing protections, and better position schools to meet their obligation not to discriminate based on sex. The proposed changes would better ensure that schools take prompt and effective action to end sex discrimination, including sex-based harassment, with support for affected students and fair procedures for all. In short, the proposed regulations would reflect the statute's text and case law establishing that Title IX protects students from all forms of sex discrimination, including discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. Moreover, as discussed in the

Regulatory Impact Analysis,

compliance with the proposed regulations would result in cost savings to recipients.

The Department has considered the interests that stakeholders may have in avoiding further changes to recipient policies and procedures or additional costs that may be required to comply with the proposed regulations. At the same time, the Department has also considered stakeholders' interests in having Title IX regulations that are sufficiently clear to allow for effective implementation and that provide recipients with flexibility and discretion to meet their Title IX obligations and to maintain any policies and procedures that do not conflict with Title IX or the proposed regulations. Based on the information OCR received during the June 2021 Title IX Public Hearing and additional listening sessions, as well as the 2022 meetings held under Executive Order 12866, the Department believes that substantial interests support each change reflected in the proposed regulations, that these changes are designed to ensure full implementation of Title IX's nondiscrimination mandate, and that the benefits of the proposed changes in facilitating that implementation far outweigh the potential interests in maintaining the existing regulations. In each instance in which the Department is proposing to change an existing regulatory requirement, the preamble acknowledges that change when discussing the regulation and explains the Department's reasons for proposing the change. The most significant proposed revisions to the Title IX regulations are summarized below.

Significant Proposed Regulations

The Department is proposing significant revisions to several subcategories of the Title IX regulations. The Department discusses these significant revisions by topic rather than in numerical order. Generally, the Department does not address proposed regulatory changes that are technical or otherwise minor in effect.

First, the Department discusses its proposed changes to existing definitions and its proposed new definitions of terms of general applicability in the regulations (proposed § 106.2), and its proposed provisions regarding the effect of other requirements and preservation of rights (proposed § 106.6). The Department then clarifies that Title IX obligates a recipient to respond to sex discrimination within the recipient's education program or activity in the United States, even if it occurs off-campus, including but not limited to conduct that occurs in a building owned or controlled by a student organization that is officially recognized by a postsecondary institution and conduct that is subject to the recipient's disciplinary authority. It also requires a recipient to respond to a hostile environment based on sex within its education program or activity in the United States, even if sex-based conduct contributing to the hostile environment occurred outside the recipient's education program or activity or outside the United States (proposed § 106.11).

Second, the Department discusses a recipient's obligation to operate its education program or activity free from sex discrimination, and administrative requirements such as the responsibilities of a recipient to

designate a Title IX Coordinator, disseminate a policy of nondiscrimination on the basis of sex, adopt prompt and equitable grievance procedures, and keep records to document its Title IX compliance (proposed § 106.8). The Department also discusses its proposed notification requirement, which would instruct recipients to require certain employees to notify the Title IX Coordinator when they have information about conduct that may constitute sex discrimination under Title IX, and would require other employees who have information about conduct that may constitute sex discrimination under Title IX to either (1) notify the Title IX Coordinator or (2) provide any person who gives them information about such conduct with the contact information for the Title IX Coordinator and information about how to report sex discrimination (proposed § 106.44(c)). The Department also addresses a recipient's obligation to offer supportive measures, as appropriate, to a complainant and respondent upon being notified of conduct that may constitute sex discrimination under Title IX, to the extent necessary to restore or preserve that party's access to the recipient's education program or activity (proposed § 106.44(g)).

The Department also discusses its proposed definition of “sex-based harassment” (proposed § 106.2) and explains in more detail its proposed changes to the regulations regarding grievance procedures for complaints of sex discrimination (proposed § 106.45), including its proposals to include the basic requirements for grievance procedures such as treating the complainant and respondent equitably (proposed § 106.45(b)(1)); the requirement to objectively evaluate all relevant evidence that is not otherwise impermissible (proposed § 106.45(b)(6) and (7)); the standard of proof for all complaints of sex discrimination (proposed § 106.45(h)(1)); and the requirement that grievance procedures be followed before the imposition of any disciplinary sanctions (proposed § 106.45(h)(4)). The Department also explains proposed bases for discretionary dismissal of a complaint (proposed § 106.45(d)) and the proposed requirement that the recipient have a process for the decisionmaker to adequately assess the credibility of the parties and witnesses to the extent that credibility is in dispute and relevant to evaluating one or more of the allegations of sex discrimination (proposed § 106.45(g)). The Department also describes the additional proposed requirements for postsecondary institutions in cases of sex-based harassment involving a student complainant or student respondent (proposed § 106.46), including the role of an advisor (proposed § 106.46(e)(2)) and revised hearing procedures (proposed § 106.46(g)). The Department states that a recipient will not be deemed to have violated the Title IX regulations solely because the Assistant Secretary would have reached a different determination than the recipient reached based on an independent weighing of the evidence in sex-based harassment complaints (proposed § 106.47).

Third, the Department describes its proposed revisions to the Title IX regulations related to pregnancy or related conditions as well as sex discrimination related to marital, parental, and family status, to provide clarity to recipients about their obligation not to discriminate against students or employees who are pregnant or experiencing pregnancy-related conditions. These proposed revisions aim to ensure that students and employees who are pregnant or experiencing pregnancy-related conditions are not subject to discrimination based on sex in education programs or activities and include revisions to the definitions of “pregnancy or related conditions” and “parental status” (proposed § 106.2) as well as revisions to the regulations on admissions (proposed § 106.21(c)); parental, family, or marital status of students (proposed § 106.40(a)); pregnancy or related conditions of students (proposed § 106.40(b)); employment (proposed § 106.51(b)(6)); parental, family, or marital status of employees (proposed § 106.57(a)); pregnancy or related conditions of employees (proposed § 106.57(b) and (e)); and pre-employment inquiries (proposed § 106.60).

Fourth, the Department proposes to clarify Title IX's scope of application, including nondiscrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity (proposed § 106.10). The Department also proposes clarifying Title IX's general prohibition on sex discrimination in education programs or activities receiving Federal financial assistance (proposed § 106.31(a)). The preamble explains that unless otherwise provided by Title IX or the regulations, in contexts in which a recipient may provide sex-separate programs or rules, such different treatment must not be applied to individuals in a way that would cause more than de minimis harm, which includes adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity (proposed § 106.31(a)(2)).

Fifth, the Department discusses proposed revisions to the prohibition on retaliation (proposed § 106.71) that would build on the current regulations and further clarify what types of conduct would constitute prohibited retaliation, including peer retaliation.

Finally, the Department explains its proposal to delete outdated regulatory provisions (§ 106.2(s) Definition of Transition Plan; § 106.3(c) and (d) Self-evaluation; § 106.15(b) Admissions; §§ 106.16-106.17 Transition Plans; § 106.21(a) Admission; and § 106.41(d) Adjustment period).

It is the Department's intent that the severability clauses set out in §§ 106.9, 106.18 (proposed to be redesignated at § 106.16), 106.24, 106.46 (proposed to be redesignated as § 106.48), 106.62, and 106.72 of the 2020 amendments remain applicable to the proposed changes set out below. As discussed in the 2020 amendments, it is the Department's position that each of the proposed regulations discussed in this preamble would serve an important, related, but distinct purpose. 85 FR 30538. Each provision provides a distinct value to recipients, elementary schools, secondary schools, postsecondary institutions, students, employees, the public, taxpayers, the Federal government, and other recipients of Federal financial assistance separate from, and in addition to, the value provided by the other provisions. To best serve these purposes, the continued application of the severability clauses in the 2020 amendments clarifies that the proposed regulations operate independently of each other and that the potential invalidity of one provision should not affect the other provisions. In addition, the Department intends that any final regulations following these proposed regulations be enforced prospectively and not retroactively.

I. Provisions of General Applicability

Statute:

Title IX states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” 20 U.S.C. 1681(a), but does not specify how recipients can meet their Title IX obligations. The Department has the authority to “effectuate the provisions” of the Title IX prohibition on discrimination on the basis of sex in

education programs or activities receiving Federal financial assistance, specifically under 20 U.S.C. 1682 and generally under 20 U.S.C. 1221e-3 and 3474. Title IX also provides that the Department may secure compliance by “the termination of or refusal to grant or to continue assistance,” or “by any other means authorized by law.” 20 U.S.C. 1682. The Department may take such action only after providing a recipient with notice of the failure to comply with the statute and the Department's regulatory requirements under Title IX and after determining that “compliance cannot be secured by voluntary means.”

Id.

A. Purpose

Section 106.1 Purpose and Effective Date

Current regulations:

Section 106.1 has the heading of “Purpose and effective date.” Current § 106.1 states that the purpose of the regulations is “to effectuate title IX of the Education Amendments of 1972, as amended by Pub. L. 93-568, 88 Stat. 1855 (except sections 904 and 906 of those Amendments) which is designed to eliminate (with certain exceptions) discrimination on the basis of sex in any education program or activity receiving Federal financial assistance, whether or not such program or activity is offered or sponsored by an educational institution as defined in this part.” Current § 106.1 further states that the regulations are “intended to effectuate section 844 of the Education Amendments of 1974, Pub. L. 93-380, 88 Stat. 484.” Finally, current § 106.1 provides that the effective date of the regulations is July 21, 1975.

Proposed regulations:

The Department proposes consolidating the reference to Title IX in the first sentence by removing “of the Education Amendments of 1972, as amended by Pub. L. 93-568, 88 Stat. 1855 (except sections 904 and 906 of those Amendments).” The Department also proposes removing the sentence that identifies the effective date of the regulations.

Reasons:

Current § 106.2 defines “Title IX” and proposed § 106.2 would retain this definition of Title IX with minor revisions for completeness, accuracy, and readability. Because proposed § 106.2 would define “Title IX,” the Department proposes removing the legislative history of Title IX from § 106.1. In addition, it is the Department's view that it is unnecessary to retain a reference to the original effective date of the Title IX regulations in light of the passage of time since the enactment of Title IX and the several amendments that have followed. Because proposed § 106.1 would no longer include the effective date, the Department also proposes revising the section heading to “Purpose.”

B. Definitions

The Department proposes including all definitions in § 106.2, the original regulatory section containing definitions for all of the Department's Title IX implementing regulations. As part of the 2020 amendments, the Department added a separate definitions section, § 106.30, that included definitions related to a recipient's obligation to address sexual harassment. Because the definitions in that section pertain to a recipient's general obligations to take action to end sex discrimination, the Department proposes moving these definitions to § 106.2.

The Department also proposes to reorganize the definitions at § 106.2. The existing definitions section does not present the definitions alphabetically, which may create confusion for recipients and others. Proposed § 106.2 would reorder the definitions to present them in alphabetical order. The Department also proposes technical edits to accommodate the consolidation of the definitions into § 106.2 and associated numbering changes.

Because the Department proposes consolidating all definitions into § 106.2, the proposed regulatory text would include existing definitions in current § 106.2, as well as definitions that are new to that section. The Department limits its discussion in this preamble to the definitions that the Department proposes adding and the definitions for which the Department is proposing changes that are not exclusively technical in nature.

Immediately below, the Department discusses proposed revisions to definitions and new definitions that apply throughout the Title IX regulations. In later topical sections of this preamble, the Department discusses proposed definitions relevant to those topics.

Section 106.2 Definition of “Administrative Law Judge”

Current regulations:

Section 106.2(f) defines “administrative law judge” as “a person appointed by the reviewing authority to preside over a hearing held under this part.”

Proposed regulations:

The Department proposes changing the reference to a hearing held “under this part” to refer to a hearing held “under § 106.81.”

Reasons:

The proposed definition would replace the general reference to “a hearing held under this part” with a specific reference to a hearing held under § 106.81. This clarification is necessary to distinguish a hearing conducted as part of a postsecondary institution's sex-based harassment grievance procedures in proposed § 106.46 from a hearing conducted by an administrative law judge to secure a recipient's compliance with Title IX. Current and proposed § 106.81 adopt and incorporate into the Title IX regulations the procedural provisions applicable to Title VI of the Civil Rights Act of 1964, specifically 34 CFR 100.6-100.11 and part 101. Proposed §§ 106.2 (definition of “retaliation”) and 106.46 discuss hearings conducted as part of a recipient's sex-based harassment grievance procedures.

Section 106.2 Definition of “Applicant”

Current regulations:

Section 106.2(j) defines “applicant” as “one who submits an application, request, or plan required to be approved by a Department official, or by a recipient, as a condition to becoming a recipient.”

Proposed regulations:

The Department proposes adding language to clarify that this definition refers to the use of the term “applicant” in the definition of “educational institution” in § 106.2 and to the use of the term “applicant” in § 106.4.

Reasons:

The proposed regulations would clarify that the definition of “applicant” in proposed § 106.2, which refers to one who seeks to become a recipient, applies only to the use of the term “applicant” in the definition of “educational institution” in current § 106.2 and to the use of the term “applicant” in § 106.4. In other provisions in the current and proposed regulations, applicant refers to one who is applying for admission as a student or other participant in a recipient's education program or activity (

e.g.,

§ 106.21) or applying for employment (

e.g.,

§ 106.51). Because the definition of “applicant” in current § 106.2 does not apply throughout the regulations, the Department proposes revising the definition to identify the specific provisions to which this definition applies.

Section 106.2 Definitions of “Elementary School” and “Secondary School”

Current regulations:

Section 106.30(b) defines an “elementary and secondary school” for purposes of §§ 106.44 and 106.45 as a “local educational agency (LEA), as defined in the Elementary and

Secondary Education Act of 1965, as amended by the Every Student Succeeds Act (ESEA); a preschool; or a private elementary or secondary school.”

Proposed regulations:

The Department proposes removing the definition of “elementary and secondary school” and, in its place providing separate definitions of “elementary school” and “secondary school” in § 106.2. Proposed § 106.2 would define an “elementary school” as that term is defined by section 8101 of the ESEA (20 U.S.C. 7801(19)), and a “public or private preschool.” Proposed § 106.2 would define a “secondary school” as that term is defined by section 8101 of the ESEA (20 U.S.C. 7801(45)), and an “institution of vocational education” as defined in § 106.2 that serves secondary school students.

Reasons:

The proposed definitions of both “elementary school” and “secondary school” would remove the references to current §§ 106.44 and 106.45 that are in the current definition of “elementary and secondary school,” because those sections are limited to sexual harassment, whereas the proposed definitions would apply to all provisions within part 106. The proposed definitions also would remove explicit references to private schools because these schools are already included in the ESEA definitions of “elementary school” and “secondary school,” making these references unnecessary.

The proposed revisions would separately define “elementary school” and “secondary school” because there is a provision in the proposed regulations that distinguishes between elementary schools and secondary schools. For consistency with the Title IX statute at 20 U.S.C. 1681(c), which states that Title IX applies to public and private preschools, the proposed definition of “elementary school” also would cover a public or private preschool. The ESEA does not separately define “preschool” and the Department has not previously done so in its Title IX regulations. The Department's position remains that a separate definition of “preschool” is not necessary and that public and private preschools fall within the proposed definition of “elementary school.”

The proposed definition of “secondary school” would also cover an institution of vocational education that serves secondary school students. This addition is necessary to ensure coverage of secondary school students who attend vocational institutions and to align with the definition of “postsecondary institution” in both the current and proposed regulations, which includes institutions of vocational education that serve postsecondary school students. As defined in current § 106.2(o) and proposed § 106.2, an “institution of vocational education” could serve both secondary and postsecondary school students but secondary school students attending institutions of vocational education are unaccounted for in the current definition of “elementary and secondary school.”

Section 106.2 Definition of “Postsecondary Institution”

Current regulations:

Section 106.30(b) defines “postsecondary institution” for purposes of §§ 106.44 and 106.45 as an institution of graduate higher education as defined in § 106.2(

), an “institution of undergraduate higher education” as defined in § 106.2(m), an “institution of professional education” as defined in § 106.2(n), or an “institution of vocational education” as defined in § 106.2(o).

Proposed regulations:

The Department proposes moving the definition of “postsecondary institution” from § 106.30(b) to § 106.2 with minor revisions. Proposed § 106.2 would define a “postsecondary institution” as an “institution of graduate higher education” as defined in § 106.2, an “institution of undergraduate higher education” as defined in § 106.2, an “institution of professional education” as defined in § 106.2, or an “institution of vocational education” as defined in § 106.2 that serves postsecondary school students.

Reasons:

The proposed definition would remove specific references to §§ 106.44 and 106.45 in the current definition of “postsecondary institution” because those sections are limited to sexual harassment, whereas the proposed definition of “postsecondary institution” in § 106.2 would apply to all of part 106. The proposed revisions also would clarify that the definition of “postsecondary institution” applies to an “institution of vocational education” as defined in § 106.2 that serves postsecondary students. It is the Department's current view that this clarification is necessary because an “institution of vocational education,” as defined in § 106.2, could serve secondary school students or postsecondary institution students.

Section 106.2 Definition of “Student With a Disability”

Current regulations:

None.

Proposed regulations:

The Department proposes adding a definition of “student with a disability” to mean a student who is an individual with a disability who would be covered by Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 705(9)(B), (20)(B), or a child with a disability as defined in the Individuals with Disabilities Education Act, 20 U.S.C. 1401(3).

Reasons:

It is the Department's view that it is important to clarify how a recipient's Title IX obligations intersect with its obligation to ensure the rights of students with disabilities. The proposed regulations include provisions in §§ 106.8(e) and 106.44(g)(7) that would require a recipient to consider the requirements of Federal disability laws when implementing the Title IX regulations. A definition of a “student with a disability” is necessary for recipients to understand the scope of these two sets of obligations and how they intersect, and thus would strengthen overall enforcement of Title IX.

Section 106.2 Definition of “Title IX”

Current regulations:

Section 106.2(a) defines “Title IX” as “title IX of the Education Amendments of 1972, Pub. L. 92-318, as amended by section 3 of Pub. L. 93-568, 88 Stat. 1855, except sections 904 and 906 thereof; 20 U.S.C. 1681, 1682, 1683, 1685, 1686.”

Proposed regulations:

The Department proposes updating this definition to incorporate statutory additions of sections 1687 and 1688 and to simplify its language.

Reasons:

The current definition omits two sections of Title IX that were added in 1988 and relies on unnecessarily legalistic language. The proposed definition would be a more complete and accurate description of Title IX and it is presented in more accessible language.

C. Application

Section 106.11 Application

Current regulations:

Section 106.11 states that, except as provided in this subpart, the Department's Title IX regulations apply to every recipient and its education program or activity that receives Federal financial assistance. The Civil Rights Restoration Act of 1987 amended Title IX to add a definition of “program or activity.” 20 U.S.C. 1687. In 2000, the Department amended the Title IX regulations to incorporate the statutory definition of “program or activity” at 34 CFR 106.2(h), which provides that a recipient's education program or activity encompasses all of its operations. 65 FR 68050 (Nov. 13, 2000). Current § 106.44(a) defines an “education program or activity” for purposes of §§ 106.30, 106.44, and 106.45 to include locations, events, or circumstances over which the recipient

exercised substantial control over both the respondent and the context in which the sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution. Current §§ 106.8(d) and 106.44(a) limit the geographic scope of a recipient's obligation to address sexual harassment to incidents that occurred against a person while that person was in the United States. In addition, current § 106.45(b)(3)(i) requires a recipient to dismiss a formal complaint of sexual harassment if the alleged conduct did not occur against a person while that person was in the United States.

Proposed regulations:

The Department proposes amending § 106.11, to clarify that Title IX's prohibition on sex discrimination applies to all sex discrimination occurring both under a recipient's education program or activity and in the United States. The proposed regulations would make clear that conduct that occurs under a recipient's education program or activity includes but is not limited to conduct that occurs in a building owned or controlled by a student organization that is officially recognized by a postsecondary institution, which is consistent with current § 106.44(a), and conduct that is subject to the recipient's disciplinary authority. It would also specify that a recipient has an obligation to address a sex-based hostile environment under its education program or activity, even if sex-based harassment contributing to that hostile environment occurred outside the recipient's education program or activity or outside the United States. Finally, the Department proposes eliminating the language in current § 106.44(a) that defines “education program or activity” for purposes of sexual harassment to ensure that the term is applied uniformly throughout the regulations for all forms of sex discrimination, including sex-based harassment.

Reasons:

Title IX states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. 1681(a). This statutory prohibition limits Title IX's application in two ways: the sex discrimination must occur (1) under the recipient's program or activity, and (2) against a person in the United States.

The current regulations require a recipient to dismiss a formal complaint of sexual harassment and not use its Title IX grievance process if the conduct did not occur against a person in the United States, even if that conduct contributes to a hostile environment in the recipient's education program or activity in the United States.

After receiving input from stakeholders, the Department has reconsidered its prior interpretation of Title IX's statutory language from the 2020 amendments and proposes revising the current regulations to more clearly and completely describe the circumstances in which Title IX applies. In proposed § 106.11, consistent with 20 U.S.C. 1687, the Department would clarify that an education program or activity includes all of the recipient's operations and that conduct occurring under a recipient's education program or activity would include but is not limited to conduct that occurs in a building owned or controlled by a student organization that is officially recognized by a postsecondary institution and conduct that is “under the school's disciplinary authority.”

See Davis,

526 U.S. at 646-47 (concluding “that recipients of federal funding may be liable for `subject[ing]' their students to discrimination . . . [for] acts of student-on-student sexual harassment [when] the harasser is under the school's disciplinary authority”). Proposed § 106.11 would also recognize that even when an act of sex-based harassment occurs outside the recipient's education program or activity, or outside the United States, that conduct could contribute to a hostile environment based on sex under the recipient's education program or activity, or otherwise exclude a person from participation in, deny them the benefits of, or subject them to sex discrimination under the recipient's education program or activity in the United States. If such sex discrimination occurs, the recipient must address it.

Obligation to address conduct occurring within the school's operations.

Under the proposed regulations, consistent with the current regulations, a recipient's education program or activity would include buildings or locations that are part of the school's operations, including online learning platforms. 34 CFR 106.44(a). A recipient's education program or activity would also include all of its academic and other classes, extracurricular activities, athletics programs, and other aspects of the recipient's education program or activity, whether those programs or activities take place in the facilities of the recipient, via computer and internet networks, on digital platforms, with computer hardware or software owned, operated by, or used in the operations of the recipient, on a school bus, at a class or training program sponsored by the recipient at another location, or elsewhere.

The Department's discussion in the preamble to the 2020 amendments regarding Title IX and online platforms used by a recipient would thus remain relevant under the proposed regulations. Specifically, in the preamble to the 2020 amendments the Department explained that the operations of a recipient “may certainly include computer and internet networks, digital platforms, and computer hardware or software owned or operated by, or used in the operations of, the recipient.” 85 FR 30202. The Department further explained that “the factual circumstances of online harassment must be analyzed to determine if it occurred in an education program or activity.”

Id.

The Department would maintain the same position in the proposed regulations as stated in the preamble to the current regulations: The definition of “program or activity” in the Title IX regulations does not create a distinction between sex discrimination occurring in person and that occurring online.

Id.

at 30203.

Under the proposed regulations, consistent with the current regulations, conduct occurring under a recipient's education program or activity would extend to conduct in off-campus settings that are operated or overseen by the school (

e.g.,

a school field trip) and off-campus buildings owned or controlled by a student organization officially recognized by a postsecondary institution.

Id.;

85 FR 30196-98;

see, e.g., Farmer

Kan. State Univ.,

16-cv-2256-JAR-GEB, 2017 WL 980460, at *7-10 (D. Kan. Mar. 14, 2017) (finding plaintiff sufficiently alleged that Kansas State University exercised substantial control over off-campus assault at a fraternity because the fraternity was subject to oversight by University and University had the authority to discipline fraternity),

aff'd on other grounds,

918 F.3d 1094 (10th Cir. 2019);

Weckhorst

Kan. State Univ.,

241 F. Supp. 3d 1154, 1166-70 (D. Kan. 2017),

aff'd sub nom. Farmer

Kan. State Univ.,

918 F.3d 1094 (10th Cir. 2019) (holding plaintiff sufficiently alleged that Kansas State University exercised substantial control over off-campus assault that occurred during a fraternity event at a local park because the University subjected the fraternity to oversight and had the authority to discipline fraternity);

S.C.

Metro. Gov't of Nashville,

No. 17-1098, 2022 WL 127978, *25 (M.D. Tenn. Jan. 12, 2022),

appeal pending

(noting that the Court's “formulation of potential

liability for peer harassment notably shied away from drawing a hard line based on geography, focusing instead on whether the harassment was taking place `under' an `operation' of the funding recipient” (citing

Davis,

526 U.S. at 646)).

Obligation to address conduct that occurs under the school's disciplinary authority.

Conduct occurring under a recipient's education program or activity would also include other settings in the United States but off campus or off school grounds when the conduct “is under the school's disciplinary authority.”

Davis,

526 U.S. at 647;

cf. Mahanoy Area Sch. Dist.

B.L.,

141 S. Ct. 2038, 2045 (2021) (noting a school's “regulatory interests remain significant in some off-campus circumstances” and “several types of off-campus behavior . . . may call for school regulation,” including “serious or severe bullying or harassment targeting particular individuals [and] threats aimed at teachers or other students”). Thus, the proposed regulations would adopt the Department's recognition in the preamble to the 2020 amendments that a teacher's sexual harassment of a student is “likely” to constitute sexual harassment “in the program” of the school even if the harassment occurs off campus or off school grounds and outside a school-sponsored activity. 85 FR 30200.

In addition, some schools have codes of conduct that address interactions, separate from discrimination, between students that occur off campus. If a school has such a code of conduct, then it may not disclaim responsibility for addressing sex discrimination that occurs in a similar context. If the school responds when, for instance, one student steals from another at an off-campus location, or when a student engages in a nonsexual assault of another student at an off-campus location, it must likewise respond when a student engages in sexual assault or sex-based harassment of another student off campus. Thus, the proposed rule would make clear, as in the 2020 amendments, that whether conduct falls under a recipient's education program or activity for purposes of Title IX is not contingent on the geographic location of the underlying conduct, but rather on whether the recipient exercises disciplinary authority over the respondent's conduct in that context.

See, e.g., DeGroote

Ariz. Bd. of Regents,

No. CV-18-00310-PHX-SRB, 2020 WL 10357074, at *8 (D. Ariz. Feb. 7, 2020) (finding a school exercised control over harasser and context of harassment, in part, because the school's code of conduct addressed off-campus behavior and because the location of the initial harassment “is not dispositive”).

Obligation to address hostile environment created by conduct outside of the education program or activity.

Proposed § 106.11 would also clarify that Title IX obligates a recipient to address a hostile environment occurring within the recipient's education program or activity, even if the underlying sex-based harassment contributing to the hostile environment does not occur in the recipient's education program or activity or occurs outside the United States.

During OCR's numerous listening sessions and in the June 2021 Title IX Public Hearing, many stakeholders indicated that the current regulations could be interpreted to exclude conduct that occurs off campus or off school grounds outside of a recipient's education program or activity, or that occurs in a program or activity but outside the United States, even when that conduct creates a hostile environment based on sex in an education program or activity within the United States. They further asserted that Title IX requires a recipient to address a hostile environment based on sex in the recipient's education program or activity, regardless of whether the sex-based harassment contributing to that hostile environment occurred elsewhere. The Department takes seriously these comments and agrees that clarification is needed. After considering this issue and reweighing the facts and circumstances, including this feedback, the Department proposes regulatory language to enforce the full scope of Title IX's nondiscrimination mandate and ensure that recipients provide a nondiscriminatory environment for all students within their programs and activities in the United States. Proposed § 106.11 would clarify that Title IX's prohibition on sex discrimination would apply to a hostile environment under a recipient's education program or activity, even if sex-based harassment contributing to such a hostile environment occurred outside of the recipient's education program or activity or occurred within an education program or activity but outside of the United States.

In the preamble to the 2020 amendments, the Department explained that in the context of a private lawsuit for monetary damages, the Supreme Court applied Title IX's program or activity language to “ `limit a recipient's damages liability to circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs.' ” 85 FR 30196 (quoting

Davis,

526 U.S. at 645). The Department acknowledged that the Court's decision was in the context of a lawsuit for monetary damages and not in the administrative enforcement context, but stated that because the Department, like the Court, is constrained by the text of the statute, including the definition of “program or activity,” a similar analysis is appropriate in the administrative enforcement context.

Id.

at 30196 n.863. The Department recognizes that some Federal courts in private suits for monetary damages have held a school not liable under Title IX for harassment that occurred outside of the recipient's control.

See, e.g., Roe

St. Louis Univ.,

746 F.3d 874, 883-84 (8th Cir. 2014) (holding that there was insufficient evidence alleged to demonstrate that university was deliberately indifferent to plaintiff's allegations of rape by a fellow student in a private residence over which the University exercised no control);

Samuelson

Or. State Univ.,

162 F. Supp. 3d 1123, 1132-34 (D. Or. 2016) (finding that plaintiff did not allege facts to demonstrate university had any control over a rape by a non-student at a private apartment for purposes of “pre-assault liability” and dismissing as time-barred plaintiff's allegations of deliberate indifference following her report of the rape to the university). In those cases, however, there were no actionable allegations that the schools were deliberately indifferent to a hostile environment based on sex

within

the recipient's education program or activity.

Indeed, several Federal courts have held that, even for purposes of monetary damages under

Davis,

Title IX requires recipients to evaluate and address allegations of a hostile environment within a recipient's education program or activity, even when an initial incident of sex-based harassment may have occurred outside of the recipient's education program or activity.

See, e.g., Rost

Steamboat Springs RE-2 Sch. Dist.,

511 F.3d 1114, 1121 n.1 (10th Cir. 2008) (citing

Davis,

526 U.S. at 645) (recognizing that sexual assault occurring in settings outside of the school can create Title IX liability, as long as there is “some nexus between the out-of-school conduct and the school,” but finding that in this case, the district's response to such conduct was not deliberately indifferent);

Spencer

Univ. of N.M. Bd. of Regents,

15-cv-141-MCA-SCY, 2016 WL 10592223, at *6 (D.N.M. Jan. 11, 2016) (concluding that a reasonable jury could

find the recipient deliberately indifferent for its failure to address the risk created by the possibility of future encounters between the plaintiff and the men who raped her off campus);

L.E.

Lakeland Joint Sch. Dist. #272,

403 F. Supp. 3d 888, 900-01 (D. Idaho 2019) (finding that the district was responsible for responding to a hostile environment in its education program or activity even where the initial sexual assault occurred outside the school's education program or activity).

The Department's current view is that these decisions are correct in reading

Davis

to require a recipient to address a hostile environment based on sex that exists within its education program or activity, whether or not the initial sex-based harassment or other contributing acts of sex-based harassment may have occurred elsewhere. This is because when the hostile environment exists within a recipient's education program or activity, the recipient exercises substantial control over both the harasser and the context.

See Davis,

526 U.S. at 645. A recipient cannot, therefore, sever incidents that happened outside of its education program or activity from any subsequent harassment or resulting hostile environment within the recipient's control.

L.E.,

403 F. Supp. 3d at 900. To do so would allow “a person” to be “subjected to discrimination under an[ ] education program or activity receiving Federal financial assistance” in violation of Title IX's explicit text. 20 U.S.C. 1681(a).

For example, Student A reports that Student B sexually assaulted her while participating in the recipient's study abroad program and both students have now returned to campus in the United States. Student A reports that Student B has been taunting her with sexually suggestive comments about the prior assault since their return to campus. Because of the sexual assault and Student B's continuing conduct, Student A is unable to concentrate or participate fully in her classes and activities where Student B is present. In this scenario, because Student A has alleged a hostile environment based on sex within the recipient's education program or activity within the United States, the recipient would have an obligation to take action to address those allegations. The proposed regulations would require the recipient to provide Student A with appropriate supportive measures and, if the recipient's investigation finds that a hostile environment exists within its education program or activity, take action against Student B after following all applicable grievance procedures.

Evaluating whether a hostile environment exists as a result of conduct that is otherwise not covered by Title IX is a fact-specific inquiry. Consistent with Federal case law, when sex-based harassment occurs outside of the United States or outside of a recipient's education program or activity, it will not always result in a hostile environment that is within a recipient's control. The definition of “sex-based harassment” in proposed § 106.2 would set out the minimum factors that must be considered in determining whether a hostile environment has been created in a recipient's education program or activity. These factors would also apply when determining whether sex-based harassment that occurred outside of a recipient's education program or activity has created a sex-based hostile environment in a recipient's education program or activity. A recipient should also consider in its fact-specific inquiry whether a complainant's encounters with an alleged respondent in the recipient's education program or activity give rise to a hostile environment, even when the incidents of harassment occurred outside of the recipient's education program or activity.

See Williams

Bd. of Regents of Univ. Sys. of Ga.,

477 F.3d 1282, 1296-98 (11th Cir. 2007) (reasoning that Title IX claim could arise when a student withdrew from university rather than risk encountering her alleged perpetrators on campus when school waited months before taking action in response to her complaint);

Kinsman

Fla. State Univ. Bd. of Trustees,

No. 4:15cv235-MW/CAS, 2015 WL 11110848, at *4 (N.D. Fla. Aug. 12, 2015) (holding that the effect of sex-based harassment does not end with the cessation of the harassing conduct, particularly when the complainant and respondent both remain at the institution and agreeing “that the possibility of further encounters `between a rape victim and her attacker could create an environment sufficiently hostile to deprive the victim of access to educational opportunities provided by a university.' ” (citation omitted));

Spencer,

2016 WL 10592223, at *6 (“ `[A] reasonable jury [may] conclude that further encounters, of any sort, between a rape victim and her attacker could create an environment sufficiently hostile to deprive the victim of access to educational opportunities provided by a university.' ” (quoting

Kelly

Yale Univ.,

No. 3:01-CV-1591, 2003 WL 1563424, at *3 (D. Conn. Mar. 26, 2003)));

Doe

Derby Bd. of Educ.,

451 F. Supp. 2d 438, 444 (D. Conn. 2006) (holding that the “constant potential for interactions” between a harasser and rape victim due to the harasser's presence on campus could constitute sex-based harassment);

Crandell

N.Y. Coll. of Osteopathic Med.,

87 F. Supp. 2d 304, 316 (S.D.N.Y. 2000) (harassment by former professor at off-campus internship required Title IX response by school when “the presence of the perpetrator at the institution would be expected to create a hostile environment”). In evaluating whether there is a hostile environment, courts have reiterated that recipients must adopt a “ `totality of the circumstances' approach that rejects the disaggregation of the allegations and requires only that the alleged incidents cumulatively have resulted in the creation of a hostile environment.”

Crandell,

87 F. Supp. 2d at 319.

In the circumstances in which sex-based harassment occurs outside a recipient's education program or activity or outside the United States, and the harassment does not contribute to a hostile environment within the recipient's education program or activity, proposed § 106.11 would clarify that Title IX does not apply. For example, Student C reports she was sexually assaulted in a nightclub off campus by a third party who does not live in the area. Student C is now experiencing emotional distress and is unable to attend classes. Because the assault occurred off campus, and the respondent is not a representative of the recipient or otherwise a person over whom the recipient exercises disciplinary authority, the assault did not occur within the recipient's education program or activity. And because Student C is not alleging a hostile environment within the education program or activity due to the respondent's presence or additional harassment she is experiencing, proposed § 106.11 clarifies that a recipient's Title IX obligations would not be implicated. The recipient would still be encouraged to provide supportive measures to Student C and refer Student C to local law enforcement.

Finally, the proposed regulations would also recognize that when sex discrimination other than sex-based harassment occurs outside of a recipient's education program or activity, or outside of the United States, but causes sex discrimination within the recipient's education program or activity, Title IX would require the recipient to address this sex discrimination as well. For example, a student in a recipient's study abroad program complains that he was

subjected to different treatment in grading based on sex by a professor and, as a result, the student lost his scholarship. Under proposed § 106.11, the recipient would be required to address the complaint because, although the different treatment in grading occurred outside of the United States, that conduct caused discrimination based on sex in the recipient's education program in the United States. This response would include compliance with applicable grievance procedures, including investigating the complaint, and, if discrimination is found, taking steps to remedy the resulting discrimination. For instance, the recipient may remove the discriminatory grade from the student's transcript and reinstate the scholarship. In addition, there may be circumstances in which the recipient itself is alleged to have engaged in sex discrimination in its program outside the United States. When such conduct causes sex discrimination in its education program or activity within the United States, the recipient must address it.

D. The Effect of Other Requirements and Preservation of Rights

Section 106.6(e) Effect of Section 444 of General Education Provisions Act (GEPA)/Family Educational Rights and Privacy Act (FERPA)

Current regulations:

Current § 106.6(e) states that the obligation to comply with the regulations in part 106 is not obviated or alleviated by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99.

Proposed regulations:

No proposed change.

Reasons:

The Family Educational Rights and Privacy Act (FERPA) protects the privacy of students' education records and personally identifiable information contained therein. Privacy is an important factor that the Department carefully considered in promulgating the proposed regulations and recipients will need to consider this factor in implementing them.

To the extent that there may be circumstances in which a conflict exists between a recipient's obligations under Title IX and under FERPA, the Department would maintain the provision in § 106.6(e) that expressly states that the obligation to comply with the Title IX regulations is not obviated or alleviated by the FERPA statute or regulations. 85 FR 30424. As the General Education Provisions Act (GEPA) provides, nothing in that statute shall be construed to “affect the applicability of title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d

et seq.

], title IX of the Education Amendments of 1972 [20 U.S.C. 1681

et seq.

], title V of the Rehabilitation Act of 1973 [29 U.S.C. 791

et seq.

], the Age Discrimination Act [42 U.S.C. 6101

et seq.

], or other statutes prohibiting discrimination, to any applicable program.” 20 U.S.C. 1221(d). The Department has long interpreted this provision to mean that “FERPA continues to apply in the context of Title IX enforcement, but if there is a direct conflict between the requirements of FERPA and the requirements of Title IX, such that enforcement of FERPA would interfere with the primary purpose of Title IX to eliminate sex-based discrimination in schools, the requirements of Title IX override any conflicting FERPA provisions.” 85 FR 30424.

Some aspects of the proposed regulations address areas in which recipients may also have obligations under FERPA or its implementing regulations, 34 CFR part 99, for example, provisions regarding the exercise of rights by parents, guardians, or other authorized legal representatives at proposed § 106.6(g); disclosure of supportive measures at proposed § 106.44(g)(5); consolidation of complaints at proposed § 106.45(e); a description of the relevant evidence at proposed § 106.45(f)(4); access to an investigative report or relevant and not otherwise impermissible evidence at proposed § 106.46(e)(6); and notification of the determination of a sex discrimination complaint at proposed §§ 106.45(h)(2) and 106.46(h)(1). The Department is seeking comments on the intersection between the proposed Title IX regulations and FERPA, any challenges that recipients may face as a result of the intersection between the two laws, and any steps the Department might take to address those challenges in the Title IX regulations.

Section 106.6(g) Exercise of Rights by Parents, Guardians, or Other Authorized Legal Representatives

Current regulations:

Section 106.6(g) states that the Department's Title IX regulations must not be read in derogation of any legal right of a parent or guardian to act on behalf of a complainant, respondent, party, or other individual, subject to the obligation to comply with the Family Educational Rights and Privacy Act, 20 U.S.C. 1232g. This right to act on behalf of another includes but is not limited to, filing a formal complaint.

Proposed regulations:

The Department proposes clarifying in this section that an authorized legal representative has the right to act on behalf of a complainant, respondent, or other person, subject to proposed § 106.6(e), including but not limited to making a complaint through the recipient's grievance procedures for complaints of sex discrimination, as would a parent or guardian.

Reasons:

Upon reexamining this provision, the Department proposes adding to the current regulations the term “authorized legal representative” to fill a gap in the existing regulations that was brought to the Department's attention in listening sessions with a wide array of stakeholders, including students, parents, educators, school officials, and advocacy organizations. Throughout the United States, an individual in the role of an educational representative or another similar role is legally authorized to act on behalf of certain youth in out-of-home care but is not necessarily deemed a parent or guardian. The Department proposes adding the term “authorized legal representative” to § 106.6(g), recognizing that although terminology may differ across States and contexts, there is a critical need to empower these individuals to act on behalf of another person, consistent with their legal authority, in matters addressed by the proposed regulations.

Section 106.6(h) and 106.6(b) Preemptive Effect

Current regulations:

Section 106.6(h) states that, to the extent there is any conflict between State or local law and the Title IX regulations at §§ 106.30, 106.44, and 106.45, the obligation to comply with those sections is not obviated or alleviated by any State or local law. Current § 106.6(b) states that the obligation to comply with part 106 is not obviated or alleviated by any State or local law or other requirement which would render any applicant or student ineligible, or limit the eligibility of any applicant or student, on the basis of sex, to practice any occupation or profession.

Proposed regulations:

The Department proposes eliminating § 106.6(h) entirely and simplifying § 106.6(b) to make clear that all of the Title IX regulations would preempt State or local law. Proposed § 106.6(b) states that a recipient's obligation to comply with part 106 is not obviated or alleviated by any State or local law or other requirement, and that nothing in the Department's regulations would preempt a State or local law that does not conflict with these regulations and that provides greater protections against sex discrimination.

Reasons:

The Department wants to ensure recipients understand that their

obligations to comply with the Department's Title IX regulations are not dependent or conditioned on other obligations recipients may be subject to in their respective States or localities. Current § 106.6(b) states that this preemptive effect applies only with respect to “any State or local law or other requirement which would render any applicant or student ineligible, or limit the eligibility of any applicant or student, on the basis of sex, to practice any occupation or profession.” The Department wants to ensure that recipients are aware that the preemptive effect of these regulations are not just limited to the circumstances listed in § 106.6(b), nor the provisions specifically excerpted in § 106.6(h). The proposed regulations would delete the language limiting the provision to eligibility to practice any occupation or profession, making clear in a simple comprehensive statement that the Title IX regulations preempt

any

State or local law with which there is a conflict. The proposed change would also avoid the duplication that may exist under separate but overlapping provisions.

In addition, proposed § 106.6(b) would clarify that nothing in the Department's proposed regulations would preempt a State or local law that provides greater protections to students and does not conflict with these regulations. This clarification would ensure that the proposed regulations appropriately cover the full scope of Title IX while not extending further than the Department's authority to promulgate regulations to effectuate Title IX.

E. Procedures

Section 106.81 Procedures

Current regulations:

Section 106.81 provides that the procedural provisions applicable to Title VI of the Civil Rights Act of 1964 are adopted and incorporated into the Title IX regulations. Current § 106.81 states that these procedures may be found at 34 CFR 100.6 through 100.11 and 34 CFR part 101. Finally, current § 106.81 states that the definitions in current § 106.30 do not apply to 34 CFR 100.6 through 100.11 and 34 CFR part 101.

Proposed regulations:

The Department proposes removing the final sentence of current § 106.81, which states that the definitions in current § 106.30 do not apply to 34 CFR 100.6 through 100.11 and 34 CFR part 101.

Reasons:

As explained in greater detail in the discussion of Definitions in the Provisions of General Applicability (Section I.B), the Department proposes removing current § 106.30 in its entirety. Accordingly, the Department also proposes removing the statement that the definitions in current § 106.30 do not apply to the Title VI regulations.

II. Recipient's Obligation to Operate Its Education Program or Activity Free From Sex Discrimination

Statute:

Title IX states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. 1681(a). The Department has the authority to regulate with regard to discrimination on the basis of sex in education programs or activities receiving Federal financial assistance, specifically under 20 U.S.C. 1682 and generally under 20 U.S.C. 1221e-3 and 3474.

A. Sex Discrimination Generally

As discussed in the Background section, the Supreme Court explained in

Cannon

that the objectives of Title IX are two-fold: first, to “avoid the use of federal resources to support discriminatory practices,” and second, to “provide individual citizens effective protection against those practices.” 441 U.S. at 704. The Court also clarified the broad scope of Title IX in

North Haven Board of Education,

stating: “[I]f we are to give Title IX the scope that its origins dictate, we must accord it a sweep as broad as its language.” 456 U.S. at 521 (citations and internal alterations omitted).

These cases, together with the text of Title IX, make clear that Title IX's prohibition on sex discrimination imposes a legal duty on every covered recipient of Federal funds to operate its education program or activity free from sex discrimination. This legal duty accordingly requires a recipient to respond promptly and equitably when sex discrimination may be taking place within its education program or activity.

B. Sex-Based Harassment

1. OCR's Guidance and Supreme Court Precedent on Title IX's Application to Sexual Harassment

The Supreme Court and the Department have long interpreted Title IX to prohibit sexual harassment. In 1981, OCR Director for Litigation, Enforcement and Policy Service Antonio J. Califa issued a policy memorandum to all OCR regional directors advising them that “[s]exual harassment consists of verbal or physical conduct of a sexual nature, imposed on the basis of sex, by an employee or agent of a recipient that denies, limits, provides different, or conditions the provision of aid, benefits, services or treatment protected under Title IX.”

See

1988 Sexual Harassment Pamphlet at 2 (quoting OCR Policy Memorandum, Aug. 31, 1981, from Antonio J. Califa, Director for Litigation, Enforcement and Policy Service, OCR to Regional Civil Rights Directors),

https://files.eric.ed.gov/fulltext/ED330265.pdf

Then in 1988, OCR issued a pamphlet titled Sexual Harassment: It's Not Academic, which characterized the 1981 memorandum as having “reaffirmed” OCR's jurisdiction: “In an August 1981 policy memorandum, the Office for Civil Rights (OCR) of the U.S. Department of Education reaffirmed its jurisdiction over sexual harassment complaints under Title IX . . . .”

Id.

The Supreme Court addressed Title IX's coverage of sexual harassment for the first time in 1992, when it confirmed that a school district could be held liable for monetary damages in cases involving a teacher sexually harassing a student.

Franklin,

503 U.S. 60. The Court noted that prior to filing her lawsuit, the plaintiff filed a complaint with OCR in August 1988 in which OCR concluded that the school district violated Franklin's Title IX rights by subjecting her to sexual harassment and by interfering with her right to complain.

Id.

at 64 n.3. By allowing monetary damages as a remedy, the Court signaled approval for more robust enforcement of Title IX to cover sexual harassment.

See id.

at 76 (“[I]n this case the equitable remedies suggested by respondent and the Federal Government are clearly inadequate.”).

Following

Franklin

and beginning in 1997, OCR issued a series of documents to provide additional guidance to recipients, students, and others regarding Title IX's prohibition on sexual harassment.

See, e.g.,

1997 Sexual Harassment Guidance; 2001 Revised Sexual Harassment Guidance; U.S. Dep't of Educ., Office for Civil Rights, Dear Colleague Letter from Assistant Secretary Stephanie Monroe on Sexual Harassment (Jan. 25, 2006) (rescinded upon effective date of 2020 amendments, Aug. 14, 2020)

https://www2.ed.gov/about/offices/list/ocr/letters/sexhar-2006.html

; U.S. Dep't of Educ., Office for Civil Rights, Dear Colleague Letter: Sexual Violence (Apr. 4, 2011) (rescinded in 2017) (2011 Dear Colleague Letter on Sexual Violence),

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf

; 2014 Q&A on Sexual Violence; U.S. Dep't of Educ., Office for Civil Rights, Q&A on Campus Sexual Misconduct (Sept. 22, 2017) (rescinded in 2020) (2017 Q&A on

Campus Sexual Misconduct),

https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf

OCR published the 1997 Sexual Harassment Guidance in the

Federal Register

for public comment after “extensive consultation with interested parties,” including “students, teachers, school administrators, and researchers.” 1997 Sexual Harassment Guidance, 62 FR 12035. OCR set out the circumstances under which sexual harassment of students is a form of prohibited discrimination under Title IX, explaining that sexual harassment occurs when “a school employee explicitly or implicitly conditions a student's participation in an education program or activity or bases an educational decision on the student's submission to unwelcome sexual [conduct].”

Id.

at 12038. OCR further explained that under Title IX, hostile environment harassment requires that the sexually harassing conduct be “sufficiently severe, persistent or pervasive to limit a student's ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment.”

Id.

OCR also discussed what constitutes notice of sexual harassment of students by its employees, students, or third parties and how a school should respond upon receiving notice of sexual harassment.

Id.

at 12039, 12042-43. OCR rooted this interpretation in Supreme Court precedent and well-established legal principles under Title IX, as well as the related nondiscrimination provisions of Titles VI and VII of the Civil Rights Act of 1964.

Id.

at 12034.

In 1998, the Supreme Court held in

Gebser

that a school district may be liable for monetary damages if a teacher sexually harasses a student, an official who has the authority to address the harassment has actual knowledge of the harassment, and that official is deliberately indifferent in responding to the harassment. 524 U.S. at 277. The following year, the Court held in

Davis

that a school district also may be liable for monetary damages if the school has actual knowledge of student-on-student harassment in its programs or activities, it responds with deliberate indifference, and the harassment is sufficiently severe, pervasive, and objectively offensive that it effectively bars the student's access to an educational opportunity or benefit. 526 U.S. at 650.

The Court specifically and repeatedly stated that the liability standards for sexual harassment established in

Gebser

and

Davis

were required in

private

actions for monetary damages.

Gebser,

524 U.S. at 283 (“In this case, moreover, petitioners seek not just to establish a Title IX violation but to recover

damages

based on theories of

respondeat superior

and constructive notice. It is that aspect of their action, in our view, that is most critical to resolving the case.” (emphasis in original));

Davis,

526 U.S. at 639 (affirming that Title IX's coverage of student-on-student harassment was not in dispute and instead that “at issue here is the question whether a recipient of federal education funding may be liable for damages under Title IX under any circumstances for discrimination in the form of student-on-student sexual harassment”);

See also

U.S. Dep't of Educ., Office for Civil Rights, Notice of Availability, Revised Sexual Harassment Guidance, 66 FR 5512 (Jan. 19, 2001),

https://www.govinfo.gov/content/pkg/FR-2001-01-19/pdf/01-1606.pdf

The 2001 Revised Sexual Harassment Guidance did not change the standards that OCR used to determine when prohibited sexual harassment has occurred. Request for Comments on the 2001 Revised Sexual Harassment Guidance, 65 FR 66093. Rather, OCR clarified that “these standards apply to our ability to find a violation and seek corrective action in administrative enforcement of Title IX.”

Id.

OCR explained that “the focus of the guidance is on a school's administrative responsibilities under the nondiscrimination requirements of the Title IX statute and regulations” to take effective action to prevent, eliminate, and remedy sexual harassment occurring in its programs or activities, rather than its liability for money damages in private lawsuits.

Id.

When the revised guidance was issued, it noted that “commenters uniformly agreed with OCR that the Court limited the liability standards established in

Gebser

and

Davis

to private actions for monetary damages” and “that the administrative enforcement standards reflected in the 1997 Guidance remain valid in OCR enforcement actions.” 2001 Revised Sexual Harassment Guidance at iv, vi (“[B]oth

Davis

and the Department tell schools to look at the `constellation of the surrounding circumstances, expectations, and relationships' (526 U.S. at 651 (citing

Oncale

Sundowner Offshore Services, Inc.,

523 U.S. 75, 82 (1998)), and the

Davis

Court cited approvingly to the underlying core factors described in the 1997 Guidance for evaluating the context of the harassment.”). Finally,

OCR explained that “[w]hile

Gebser

and

Davis

made clear that Title VII agency principles do not apply in determining liability for money damages under Title IX, the

Davis

court also indicated, through its specific references to Title VII caselaw, that Title VII remains relevant in determining what constitutes hostile environment sexual harassment under Title IX.”

Id.

at vi.

As noted above, OCR issued subsequent guidance documents on harassment on the basis of sex, including sexual harassment, that built on the concepts from the 1997 Sexual Harassment Guidance and the 2001 Revised Sexual Harassment Guidance.

See

U.S. Dep't of Educ., Office for Civil Rights, Dear Colleague Letter: Harassment and Bullying (Oct. 26, 2010) (2010 Dear Colleague Letter on Harassment and Bullying),

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf

; 2011 Dear Colleague Letter on Sexual Violence; 2014 Q&A on Sexual Violence; 2017 Q&A on Campus Sexual Misconduct. OCR issued these guidance documents to assist recipients in meeting their obligations and to provide the public with information about their rights under the Title IX statute and regulations. These guidance documents provided information and examples to inform recipients about how OCR evaluates compliance with Title IX.

2. The 2020 Amendments' Framework for Addressing Sexual Harassment Under Title IX

On November 29, 2018, the Department published a notice of proposed rulemaking to clarify and modify the Title IX regulations. 2018 NPRM. In response to the 2018 NPRM, the Department received more than 124,000 comments expressing a wide variety of views on the proposed regulations. On May 19, 2020, the Department published the 2020 amendments to the Title IX regulations, which went into effect on August 14, 2020. 85 FR 30026.

In the preamble to the 2020 amendments, the Department explained that “[n]either

Gebser

nor

Davis

opined as to what the appropriate conditions (

e.g.,

definition of sexual harassment, actual knowledge) and liability standard (

e.g.,

deliberate indifference) must or should be for the Department's administrative enforcement.”

Id.

at 30033. The Department recognized its flexibility to depart from the standards and conditions articulated in

Gebser

and

Davis,

explaining that the “Department has regulatory authority to select conditions and a liability standard different from those used in the

Gebser/Davis

framework, because the Department has authority to issue rules that require recipients to take administrative actions to effectuate Title IX's non-discrimination mandate.”

Id.

Notwithstanding this recognition of its distinct administrative authority to enforce Title IX, in the 2020 amendments the Department chose to use the

Gebser/Davis

framework as the starting point for describing a recipient's legal obligation to address sexual harassment under Title IX, departing in many respects from OCR's prior longstanding guidance that had been developed to ensure a recipient's implementation of Title IX's protections. The Department also stated that it was using Title IX's “statutory authority to issue rules to effectuate the purpose of Title IX,” to “reasonably expand[ ]” aspects of that “framework to further the purposes of Title IX in the context of administrative enforcement, holding schools responsible for taking more actions than what the

Gebser/Davis

framework requires.”

Id.

at 30033, 30035.

After extensive review, the Department's current view is that the 2020 amendments do not adequately promote full implementation of Title IX's prohibition on sex discrimination, including sex-based harassment, by a recipient in its education program or activity. For example, the 2020 amendments do not require a postsecondary institution to investigate sexual harassment in its education program or activity, even if its leadership has persuasive evidence that harassment is taking place, unless the person who experienced the harassment (

i.e.,

the complainant) reported the harassment in writing to a specifically designated employee. As a result, a complainant who does not report the harassment to the correct individual may be denied access to an educational environment free from sex discrimination, and the recipient may be discriminating based on sex in operating its program or activity. Also, stakeholders reported that certain requirements of the 2020 amendments have resulted in decreased reporting of sexual harassment and may have impeded recipients from responding promptly and equitably to allegations of sexual harassment in its educational environment. The Department's current view is that it is necessary to amend its Title IX regulations to clarify a recipient's obligation to take prompt and effective action to end all sex-based harassment, to help ensure that Title IX's protections are fully enforced, and to avoid recipients' use of Federal funds to support discriminatory practices.

C. Revised Definitions

Section 106.2 Definition of “Complainant”

Current regulations:

Section 106.30 defines “complainant” as “an individual who is alleged to be the victim of conduct that could constitute sexual harassment.”

Proposed regulations:

The Department proposes moving the definition of “complainant” to § 106.2, referring to “sex discrimination” rather than “sexual harassment,” and removing the term “victim.” The Department also proposes adding language stating that a third-party complainant (

i.e.,

a person other than a student or employee) must be participating or attempting to participate in the recipient's education program or activity when the alleged sex discrimination occurred.

Reasons:

The Department proposes that “complainant” encompass anyone who is alleged to have been subjected to conduct that could constitute sex discrimination under Title IX. The Department also proposes removing the current definition's reference to the complainant as a “victim” as the term could be perceived as stigmatizing or pejorative.

The Department recognizes in proposed § 106.6(g) that a parent, guardian, or other authorized legal representative may have a legal right to act on behalf of a complainant, including by making a complaint of sex discrimination. This approach is consistent with current § 106.6(g), which states that the Title IX regulations must not be “read in derogation of any legal right of a parent or guardian” to act on behalf of a complainant, including by filing a formal complaint. The Department stated in the preamble to the 2020 amendments that “when a party is a minor or has a guardian appointed, the party's parent or guardian may have the legal right to act on behalf of the party,” although the minor or person with an appointed guardian would be the party (

i.e.,

the complainant). 85 FR 30453. As explained in the preamble to the 2020 amendments, “the parent or guardian must be permitted to exercise the rights granted to the party . . . whether such rights involve requesting supportive measures or participating in a grievance process.”

Id.

The Department further explained in the preamble to the 2020 amendments that “the parent or guardian must be permitted to accompany the student to meetings, interviews, and hearings during a grievance process to exercise rights on behalf of the student, while the

student's advisor of choice may be a different person from the parent or guardian.”

Id.

As explained in the discussion of proposed § 106.6(g), the Department has received feedback that a reference to parents and guardians is underinclusive because it does not recognize the rights of individuals who are legally authorized to act on behalf of children in out-of-home care. As a result, the Department proposes adding the phrase “other authorized legal representative” in proposed § 106.6(g). Under proposed § 106.6(g), a parent, guardian, or other authorized legal representative may have a legal right to act on a student's behalf, including by making a complaint on behalf of a complainant; however, the student would remain the complainant.

The current regulations restrict the persons who can make a complaint under the recipient's grievance procedures for complaints of sex discrimination other than sexual harassment to students and employees. 34 CFR 106.8(c). The current regulations permit any complainant, including a student, employee, or third party who was participating or attempting to participate in the recipient's education program or activity at the time of filing, to file a formal complaint alleging sexual harassment. 34 CFR 106.30(a) (definition of “complainant” and “formal complaint”). After considering the issue, the Department's current view is that a third party who was participating or attempting to participate in the recipient's education program or activity when the alleged sex discrimination occurred should be permitted to make a complaint of sex discrimination, including sex-based harassment, under the recipient's grievance procedures as addressed in proposed § 106.45(a)(2). This would be unlike the current regulations, which consider the complainant's participation in the education program or activity at the time of filing the formal complaint. In addition, although the current regulations' limits on who can file a formal complaint address only complaints of sexual harassment, the proposed regulations would address all complaints of sex discrimination, including sex-based harassment. This proposal is consistent with the decision by the U.S. Court of Appeals for the First Circuit in

Doe

Brown University,

896 F.3d 127, 132-33 (1st Cir. 2018), which found that the scope of Title IX's “subject to discrimination under” language is “circumscribed to persons who experience discriminatory treatment while participating, or at least attempting to participate, in education programs or activities” provided by the recipient.

Id.

(upholding district court's dismissal of Title IX claim by third party who was sexually assaulted on recipient's campus but was not participating or attempting to participate in the recipient's education program or activity). Examples of possible third-party complainants include a prospective student, a visiting student-athlete, or a guest speaker who is participating or attempting to participate in the recipient's education program or activity. This third-party participation requirement would not apply to a student, employee, or those persons authorized to act on behalf of a complainant, respondent, or other person under proposed § 106.6(g).

Section 106.2 Definition of “Complaint”

Current regulations:

The current regulations do not define “complaint.” However, current § 106.30 defines “formal complaint” as a document or electronic submission that contains the complainant's signature or otherwise indicates that the complainant is the person filing the formal complaint; alleges sexual harassment against a respondent; and requests that the recipient investigate the allegation of sexual harassment under its grievance process for formal complaints of sexual harassment in § 106.45. A formal complaint is filed by a complainant with the Title IX Coordinator or signed by the Title IX Coordinator. The current regulations provide several methods for filing the formal complaint, including in person, by mail, or by email. The current regulations specify that when the Title IX Coordinator signs a formal complaint, the Title IX Coordinator is not a complainant or otherwise a party under part 106 or under § 106.45, and must comply with the requirements of part 106, including § 106.45(b)(1)(iii).

Current § 106.8(c) requires that a recipient provide notification of its grievance procedures, including how to report or file a complaint of sex discrimination, to the following: applicants for admission and employment; students; parents or legal guardians of elementary and secondary school students; employees; and all unions and professional organizations holding collective bargaining or professional agreements with the recipient.

Proposed regulations:

The Department proposes defining “complaint” to cover complaints of any type of sex discrimination and not limiting “complaint” to a written request. Specifically, the Department proposes removing the definition of “formal complaint,” which is limited to a document requesting that the recipient initiate its grievance process under current § 106.45, and replacing it with a definition of “complaint” that is an oral or written request to the recipient to initiate the recipient's grievance procedures for sex discrimination under § 106.45, and if applicable § 106.46. The Department proposes moving the definition of “complaint” to § 106.2 because its applicability is not limited to sex-based harassment.

The proposed definition would clarify that a complaint may be oral or written. The proposed regulations would remove the requirement that the formal complaint contain the complainant's physical or digital signature, or otherwise indicate that the complainant is the person filing the formal complaint.

The proposed definition of “complaint” would not specify who can make a complaint, but this information would be specified in proposed § 106.45(a)(2). As explained in the discussion of proposed § 106.45(a)(2), the Department proposes placing limitations on who may make a complaint of sex-based harassment that obligates a recipient to initiate its grievance procedures due to the nature of those allegations. However, the Department does not propose placing any limitations on who can provide information to the Title IX Coordinator about conduct that may constitute sex discrimination under Title IX, including sex-based harassment. When a Title IX Coordinator is notified about conduct that may constitute sex discrimination under Title IX, including sex-based harassment, they would be required to act under proposed § 106.44.

Reasons:

The Department proposes defining “complaint” to provide clarity for how an individual can request that a recipient initiate its grievance procedures under proposed § 106.45, and if applicable proposed § 106.46, for all types of sex discrimination prohibited by Title IX.

The current regulations do not provide information about how an individual could request that a recipient initiate its grievance procedures in response to sex discrimination other than sexual harassment. First, the current definition of “formal complaint” applies only to sexual harassment. Second, although current § 106.8(c) requires a recipient to notify individuals of how to make a complaint, the Department did not define the term “complaint” or specify that a complaint is a request to the recipient to initiate its grievance procedures. The current regulations have different requirements

for complaints of sexual harassment and complaints of other forms of sex discrimination under Title IX and require a formal written document to request that the recipient initiate its grievance procedures in response only to sexual harassment. Specifically, current § 106.30 requires a formal written document to request that the recipient initiate its grievance procedures under § 106.45 with respect to allegations of sexual harassment but does not require a formal written document to request that the recipient initiate its grievance procedures under § 106.8(c) with respect to allegations of other forms of sex discrimination. In the preamble to the 2020 amendments, the Department explained that a formal written document was important to avoid confusion in initiating a recipient's grievance procedures under § 106.45.

See

85 FR 30130.

OCR received feedback from stakeholders during the June 2021 Title IX Public Hearing, listening sessions, and the meetings held in 2022 under Executive Order 12866 that expressed concerns that the 2020 amendments created an onerous and cumbersome process for a complainant seeking to request that the recipient initiate its grievance procedures and requesting that the Department streamline the complaint process. Although the current regulations permit a complainant to file a formal complaint by email and using a digital signature,

see

85 FR 30133, several stakeholders stated that the signature and writing requirements generally discouraged individuals from making complaints.

Based on the feedback received from stakeholders and the current distinction between a complaint of sex discrimination and a formal complaint of sexual harassment, the Department is concerned that the current regulations may have created a barrier for potential complainants to effectively assert their rights under Title IX. It is the Department's current view that additional clarity is needed to ensure that recipients are aware of and can respond appropriately to sex discrimination in their education programs or activities.

The Department proposes creating a single process to receive these requests by replacing the definition of “formal complaint” with a definition of “complaint” to clarify that a complaint would be the mechanism by which an individual may request that a recipient initiate its grievance procedures in response to all forms of sex discrimination. The Department's proposed regulations would define “complaint” more broadly to include either an oral or a written request to the recipient to initiate the recipient's grievance procedures for complaints of sex discrimination under Title IX, as described in proposed § 106.45, and if applicable proposed § 106.46. This revised definition of “complaint” would recognize that a person may seek to make a complaint in a variety of ways and would allow both oral and written complaints, while also no longer requiring a signature.

The proposed regulations would also differ from the current regulations in that they would not require a complaint to be made to the Title IX Coordinator, or to any specific employee of the recipient; a complaint need only be made to the recipient. As explained in greater detail in the discussion of proposed § 106.44(c), the proposed regulations would require a recipient to ensure that its Title IX Coordinator is notified of information about conduct that may constitute sex discrimination under Title IX in the recipient's education program or activity when that information is provided to certain categories of employees. The proposed regulations would also require other categories of employees to, at a minimum, provide the Title IX Coordinator's contact information and information about how to report sex discrimination to any person who provides the employee with information about conduct that may constitute sex discrimination under Title IX. As explained in greater detail in the discussion of proposed § 106.44(f), the proposed regulations would also require a recipient's Title IX Coordinator to take certain steps upon being notified of conduct that may constitute sex discrimination under Title IX. In addition, as explained in greater detail in the discussion of proposed § 106.44(k), a complaint would no longer be required before a recipient could offer to a complainant and respondent its informal resolution process under proposed § 106.44(k); instead, the informal resolution process could be offered and, if accepted, initiated by the recipient when it receives information about conduct that may constitute sex discrimination under Title IX even when no complaint is made.

Third-party complaints.

The current regulations require a complainant to be participating or attempting to participate in the recipient's education program or activity at the time of filing a formal complaint of sexual harassment. 34 CFR 106.30(a) (definition of “formal complaint”). In adding that requirement to the 2020 amendments, the Department explained that “there is no requirement that [a] complainant must be a student, employee, or [have some] other designated relationship with the recipient in order to be treated as a `complainant' entitled to a prompt, non-deliberately indifferent response from the recipient,” but that the participation limitation on when a complainant can file a formal complaint of sexual harassment “prevents recipients from being legally obligated to investigate allegations made by complainants who have no relationship with the recipient.” 85 FR 30138, 30198. The Department also provided examples of situations in which a complainant would be attempting to participate in a recipient's education program or activity.

See id.

at 30138, 30198 n.869, 30219. The current regulations do not address third-party complainants or include a participation requirement with respect to complaints of sex discrimination other than sexual harassment; instead, the current regulations state that grievance procedures that address other forms of sex discrimination apply to student and employee complaints. 34 CFR 106.8(c).

OCR heard from several stakeholders during the June 2021 Title IX Public Hearing, listening sessions, and the meetings held in 2022 under Executive Order 12866 who requested either reconsideration of the scope of who is deemed to be attempting to participate in the recipient's education program or activity or eliminating the requirement that a complainant must be participating or attempting to participate in the recipient's education program or activity. The Department also considered that such a requirement may be redundant as applied to employee and student complainants who are, based on their enrollment or employment, either participating or attempting to participate in the recipient's education program or activity. After considering an array of stakeholder views and reevaluating the issue, the Department proposes eliminating this requirement for making a complaint of sex discrimination, including sex-based harassment, with respect to a student or employee complainant.

In proposed § 106.45(a)(2), the Department would specify who can make a complaint requesting that the recipient initiate its grievance procedures. Under proposed § 106.45(a)(2)(iv), a third party must be participating in or attempting to participate in the recipient's education program or activity in order to make a complaint requesting that the recipient initiate grievance procedures. The

Department's proposed regulations seek to ensure that anyone who is participating or attempting to participate in a recipient's program or activity is able to make a complaint of sex discrimination while being cognizant of the possible increased burden for a recipient based on complaints made by third parties who are not participating or attempting to participate in the recipient's education program or activity. The Department's proposed regulations would also shift the focus from whether the third party was participating or attempting to participate in the recipient's education program or activity at the time the complaint was filed to whether the third party was participating or attempting to participate in the recipient's education program or activity when the alleged sex discrimination occurred. For example, under the proposed regulations, the visiting student-athlete who was sexually harassed by a student of the recipient during an intercollegiate swim meet would be considered to be participating in the recipient's education program or activity at the time of the alleged sex-based harassment. In contrast, and also under the proposed regulations, if the same visiting student-athlete was sexually harassed by one of the recipient's students at an off-campus bar days after the swim meet concluded, the visiting student-athlete would not be considered to be participating or attempting to participate in the recipient's education program or activity at the time that the alleged sex-based harassment occurred. The Department's tentative view is that the proposed regulations would be more aligned with the purpose of Title IX to ensure that a recipient operates its education program or activity free from sex discrimination.

Section 106.2 Definition of Prohibited “Sex-Based Harassment”

Current regulations:

Section 106.30(a) defines “sexual harassment” as conduct on the basis of sex that satisfies one or more of the following: (1) an employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual's participation in unwelcome sexual conduct; (2) unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient's education program or activity; or (3) “sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” as defined in 34 U.S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8), or “stalking” as defined in 34 U.S.C. 12291(a)(30).

Proposed regulations:

The Department proposes moving the definition from § 106.30(a) to § 106.2 and clarifying that the definition covers all forms of sex-based harassment, as opposed to only sexual harassment. The proposed new definition of “sex-based harassment” would clarify that it covers sexual harassment, harassment on the bases described in proposed § 106.10, and other conduct on the basis of sex that is in one or more of the following categories: (1) an employee, agent, or other person authorized by the recipient to provide an aid, benefit, or service under the recipient's education program or activity explicitly or implicitly conditioning the provision of such an aid, benefit, or service on a person's participation in unwelcome sexual conduct; (2) unwelcome sex-based conduct that is sufficiently severe or pervasive, that, based on the totality of the circumstances and evaluated subjectively and objectively, denies or limits a person's ability to participate in or benefit from the recipient's education program or activity (

i.e.,

creates a hostile environment); or (3)(i) “sexual assault” meaning an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation; (ii) “dating violence” meaning violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim; (iii) “domestic violence” meaning felony or misdemeanor crimes of violence committed by a person who (A) is a current or former spouse or intimate partner of the victim under the family or domestic violence laws of the jurisdiction of the recipient, or a person similarly situated to a spouse of the victim; (B) is cohabitating, or has cohabitated, with the victim as a spouse or intimate partner; (C) shares a child in common with the victim; or (D) commits acts against a youth or adult victim who is protected from those acts under the family or domestic violence laws of the jurisdiction; or (iv) “stalking” meaning engaging in a course of conduct directed at a specific person that would cause a reasonable person to (A) fear for the person's safety or the safety of others; or (B) suffer substantial emotional distress. The proposed definition also clarifies that conduct meeting the definition of “sex-based harassment” in proposed § 106.2 constitutes sex-based harassment that is prohibited under Title IX. With this clarification, the Department recognizes that there may be other types of conduct that could constitute sex-based harassment under other laws or a recipient's policies but are not prohibited under Title IX.

The proposed definition would clarify that the scope of sex-based harassment includes bases that were not expressly covered under the term “sexual harassment” in current § 106.30(a), including harassment based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.

The proposed definition would also include revisions to the scope of conduct described in its second category, which addresses unwelcome conduct on the basis of sex. These proposed revisions would provide factors to consider when determining whether unwelcome sex-based conduct creates a hostile environment in a recipient's education program or activity.

The third category of the proposed definition would still incorporate the definition of “sexual assault” from the Clery Act. The proposed definition would incorporate the definitions of “dating violence,” “domestic violence,” and “stalking” from the Violence Against Women Reauthorization Act of 2022 (VAWA 2022). Instead of including cross-references to statutory provisions in the Clery Act and VAWA 2022, the proposed definition would include language from the statutory definitions themselves to make it clear in the text of the regulations how these terms are defined for purposes of Title IX. The Department proposes incorporating the portion of the definition of “domestic violence” that is relevant to Title IX.

Reasons: Sex-Based Harassment.

The Department's proposed regulations refer to “sex-based harassment” rather than “sexual harassment.” This revision is consistent with the Department's statement that it interpreted Title IX to prohibit gender-based harassment in response to comments received on the 2018 NPRM. Specifically, the Department explained that its position in the 2020 amendments remained similar to its position in the 2001 Revised Sexual Harassment Guidance that “ `[a]lthough Title IX does not prohibit discrimination on the basis of sexual orientation, sexual harassment directed at gay or lesbian students that is sufficiently serious to limit or deny a student's ability to participate in or benefit from the school's program constitutes sexual harassment prohibited by Title IX under the circumstances described in this guidance.' ” 85 FR 30178-79 (quoting 2001 Revised Sexual Harassment

Guidance at 3). The Department also stated that “gender-based harassment, which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, but not involving conduct of a sexual nature, is also a form of sex discrimination to which a school must respond.”

Id.

at 30179 (quoting 2001 Revised Sexual Harassment Guidance at 3). To address the concern that the 2020 amendments were underinclusive in scope because they were limited to sexual harassment, the Department stated that “[t]hese final regulations include sexual harassment as unwelcome conduct on the basis of sex that a reasonable person would determine is so severe, pervasive, and objectively offensive that it denies a person equal educational access; this includes but is not limited to unwelcome conduct of a sexual nature, and may consist of unwelcome conduct based on sex or sex stereotyping.”

Id.

During the June 2021 Title IX Public Hearing and in listening sessions with stakeholders, OCR received requests to clarify that the Title IX regulations apply to both sexual harassment and other forms of harassment based on sex, including harassment based on sexual orientation and gender identity. These requests indicated to the Department that the current definition of “sexual harassment” does not provide adequate clarity as to the scope of harassment covered. Specifically, stakeholders expressed confusion regarding the scope of sexual harassment, including noting that they were receiving questions from their students regarding whether certain forms of harassing conduct are covered under the current definition of “sexual harassment.” Stakeholders also expressed concern that the definition of “sexual harassment” fails to protect many individuals who experience other forms of sex-based harassment due to the limited coverage of the definition.

After reevaluating the issue, the Department proposes revising the regulatory text to make clear that sexual harassment, as well as other forms of sex-based harassment on the bases described in proposed § 106.10, are covered under the Department's Title IX regulations to dispel any confusion regarding the scope of sex-based harassment that is prohibited under Title IX and therefore requires a recipient to respond. The proposed clarifications would more clearly implement the statements made by the Department in the preamble to the 2020 amendments that Title IX's broad nondiscrimination mandate covers all forms of har

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