# Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2024-07915 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** April 29, 2024 - **Citation:** 89 FR 33474 ## Text DEPARTMENT OF EDUCATION 34 CFR Part 106 [Docket ID ED-2021-OCR-0166] RIN 1870-AA16 Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance AGENCY: Office for Civil Rights, Department of Education. ACTION: Final rule. SUMMARY: The U.S. Department of Education (Department) amends the regulations implementing Title IX of the Education Amendments of 1972 (Title IX). The purpose of these amendments is to better align the Title IX regulatory requirements with Title IX's nondiscrimination mandate. These amendments clarify the scope and application of Title IX and the obligations of recipients of Federal financial assistance from the Department, including elementary schools, secondary schools, postsecondary institutions, and other recipients (referred to below as “recipients” or “schools”) to provide an educational environment free from discrimination on the basis of sex, including through responding to incidents of sex discrimination. These final regulations will enable all recipients to meet their obligations to comply with Title IX while providing them with appropriate discretion and flexibility to account for variations in school size, student populations, and administrative structures. DATES: These final regulations are effective August 1, 2024. FOR FURTHER INFORMATION CONTACT: Randolph Wills, U.S. Department of Education, 400 Maryland Avenue SW, Fifth Floor, Washington, DC 20202. Telephone: (917) 284-1982. Email: randolph.wills@ed.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: Table of Contents Table of Contents Effective Date Executive Summary Purpose of This Regulatory Action Summary of the Major Provisions of This Regulatory Action Timing, Comments, and Changes I. Provisions of General Applicability A. Personal Stories 1. Experiences Relating to Title IX Grievance Procedures 2. Experiences Relating to Pregnancy 3. Experiences Relating to Sexual Orientation and Gender Identity B. Purpose 1. Section 106.1 Purpose C. Definitions 1. Section 106.2 Definition of “Administrative Law Judge” 2. Section 106.2 Definition of “Complainant” 3. Section 106.2 Definition of “Complaint” 4. Section 106.2 Definition of “Disciplinary Sanctions” 5. Section 106.2 Definitions of “Elementary School” and “Secondary School” 6. Section 106.2 Definition of “Postsecondary Institution” 7. Section 106.2 Definition of Prohibited “Sex-Based Harassment” 8. Section 106.2 Definition of “Relevant” 9. Section 106.2 Definition of “Remedies” 10. Section 106.2 Definition of “Respondent” 11. Section 106.2 Definition of “Student With a Disability” 12. Section 106.2 Definition of “Title IX” D. Other Definitions (definitions that the Department did not propose to amend) 1. Section 106.2 Definition of “Employee” 2. Section 106.2 Definition of “Federal Financial Assistance” 3. Section 106.2 Definition of “Program or Activity” 4. Section 106.2 Definition of “Recipient” 5. Section 106.2 Definition of “Student” 6. Adding a definition of “Party” 7. Adding a definition of “Sex Discrimination” E. Application 1. Section 106.11 Application F. The Effect of Other Requirements and Preservation of Rights 1. Section 106.6(e) Effect of Section 444 of General Education Provisions Act (GEPA)/Family Educational Rights and Privacy Act (FERPA) and Directed Question 1 2. Section 106.6(g) Exercise of Rights by Parents, Guardians, or Other Authorized Legal Representatives 3. Section 106.6(b) Preemptive Effect II. Recipient's Obligation to Operate Its Education Program or Activity Free From Sex Discrimination A. Administrative Requirements 1. Section 106.8(a) Designation of a Title IX Coordinator 2. Section 106.8(b) and (c) Nondiscrimination Policy, Grievance Procedures, and Notice of Nondiscrimination 3. Section 106.8(d) Training 4. Section 106.8(e) Students with Disabilities 5. Section 106.8(f) Recordkeeping B. Action by a Recipient to Operate Its Education Program or Activity Free From Sex Discrimination 1. Section 106.44(a) General 2. Section 106.44(b) Monitoring for Barriers 3. Section 106.44(c) Notification Requirements 4. Sections 106.2 and 106.44(d) “Confidential employee” requirements and definition 5. Section 106.44(e) Public Awareness Events 6. Section 106.44(f) Title IX Coordinator Requirements 7. Sections 106.44(g) and 106.2 Supportive Measures and Definition of “Supportive Measures” 8. Section 106.44(h) Emergency Removal 9. Section 106.44(i) Administrative Leave 10. Section 106.44(j) Prohibited Disclosures of Personally Identifiable Information 11. Section 106.44(k) Informal Resolution Process C. Framework for Grievance Procedures for Complaints of Sex Discrimination 1. General Support 2. Due Process Generally 3. Administrative Burdens 4. Bifurcation of Sex-Based Harassment Complaints Between Students and Employees at a Postsecondary Institution 5. Ability to Respond to Threats, Promptly Impose Discipline, or Address Sex Discrimination 6. Grievance Procedures Appearing as Quasi-Judicial Proceedings 7. Consistency with Other Civil Rights Laws that OCR Enforces 8. Elementary Schools and Secondary Schools 9. Employees 10. Section 106.45 Grievance Procedures for the Prompt and Equitable Resolution of Complaints of Sex Discrimination 11. Section 106.46 Grievance Procedures for the Prompt and Equitable Resolution of Complaints of Sex-Based Harassment Involving a Student Complainant or Student Respondent at Postsecondary Institutions D. Grievance Procedures for the Prompt and Equitable Resolution of Complaints of Sex Discrimination (Section 106.45) 1. Section 106.45(a)(1) and Section 106.46(a) 2. Section 106.45(a)(2) Who Can Make Complaint 3. Section 106.45(b)(1) Treat Complainants and Respondents Equitably 4. Section 106.45(b)(2) Conflicts of Interest or Bias 5. Section 106.45(b)(3) Presumption That the Respondent Is Not Responsible for the Alleged Sex Discrimination Until a Determination Is Made at the Conclusion of the Grievance Procedures 6. Sections 106.45(b)(4) and 106.46(e)(5) Timeframes 7. Section 106.45(b)(5) Reasonable Limitations on Sharing of Information 8. Section 106.45(b)(6) Objective Evaluation of All Relevant Evidence and 106.45(b)(7) Exclusion of Impermissible Evidence 9. Section 106.45(b)(8) Procedures that Apply to Some, but Not All, Complaints 10. Section 106.45(c) Notice of Allegations 11. Section 106.45(d) Dismissal of a Complaint 12. Section 106.45(e) Consolidation of Complaints 13. Section 106.45(f) Complaint Investigations 14. Section 106.45(f)(1) Investigative Burden on Recipients 15. Section 106.45(f)(2) Opportunity To Present Witnesses and Other Evidence that Are Relevant and Not Otherwise Impermissible 16. Section 106.45(f)(3) Review and Determination of Relevant Evidence 17. Section 106.45(f)(4) Access to the Relevant and Not Otherwise Impermissible Evidence 18. Section 106.45(g) Evaluating Allegations and Assessing Credibility 19. Section 106.45(h)(1) Standard of Proof and Directed Question 4 20. Section 106.45(h)(2) Notification of Determination Whether Sex Discrimination Occurred 21. Section 106.45(h)(3) Remedies to a Complainant and Other Appropriate Prompt and Effective Steps 22. Section 106.45(h)(4) Comply With This Section Before Imposition of Disciplinary Sanctions 23. Section 106.45(h)(5) Prohibition on Discipline Based Solely on Determination 24. Section 106.45(i) Appeals 25. Section 106.45(j) Additional Provisions 26. Section 106.45(l) Range of Supportive Measures and Disciplinary Sanctions and Remedies E. Grievance Procedures for the Prompt and Equitable Resolution of Complaints of Sex-Based Harassment Involving a Student Complainant or Student Respondent at Postsecondary Institutions 1. Section 106.46(b) Student-Employees 2. Section 106.46(c) Written Notice of Allegations 3. Section 106.46(d) Dismissal of a Complaint 4. Section 106.46(e)(1) Notice in Advance of Meetings 5. Section 106.46(e)(2) Role of Advisor 6. Section 106.46(e)(3) Other Persons Present at Proceedings 7. Section 106.46(e)(4) Expert Witnesses 8. Section 106.46(e)(5) Timeframes 9. Section 106.46(e)(6) Access to Relevant and Not Otherwise Impermissible Evidence 10. Section 106.46(f) Evaluating Allegations and Assessing Credibility 11. Section 106.46(g) Live Hearings 12. Section 106.46(h) Determination Whether Sex-Based Harassment Occurred 13. Section 106.46(i) Appeals 14. Section 106.46(j) Informal Resolution F. Assistant Secretary Review 1. Section 106.47 Assistant Secretary Review III. Pregnancy and Parental Status A. Revised Definitions 1. Section 106.2 Definition of “Pregnancy or Related Conditions” 2. Section 106.2 Definition of “Parental Status” B. Admissions 1. Section 106.21(c) Parental, Family, or Marital Status; Pregnancy or Related Conditions C. Discrimination Based on a Student's Parental, Family, or Marital Status, or Pregnancy or Related Conditions 1. Section 106.40 Parental, Family, or Marital Status; Pregnancy or Related Conditions; and Section 106.40(a) Status Generally 2. Section 106.40(b)(1) Pregnancy or Related Conditions—Nondiscrimination 3. Section 106.40(b)(2) Pregnancy or Related Conditions—Responsibility to Provide Title IX Coordinator Contact and Other Information 4. Section 106.40(b)(3) Pregnancy or Related Conditions—Specific Actions To Prevent Discrimination and Ensure Equal Access 5. Section 106.40(b)(3)(i) Pregnancy or Related Conditions—Responsibility to Provide Information About Recipient Obligations 6. Section 106.40(b)(3)(ii) Pregnancy or Related Conditions—Reasonable Modifications 7. Sections 106.40(b)(1) and 106.40(b)(3)(iii) Pregnancy or Related Conditions—Voluntary Access to Separate and Comparable Portion of Program or Activity 8. Section 106.40(b)(3)(iv) Pregnancy or Related Conditions—Voluntary Leaves of Absence 9. Section 106.40(b)(3)(v) Pregnancy or Related Conditions—Lactation Space 10. Section 106.40(b)(3)(vi) Pregnancy or Related Conditions—Limitation on Supporting Documentation 11. Section 106.40(b)(4) Pregnancy or Related Conditions—Comparable Treatment to Other Temporary Medical Conditions 12. Section 106.40(b)(5) Pregnancy or Related Conditions—Certification To Participate D. Discrimination Based on an Employee's Parental, Family, Marital Status, Pregnancy, or Related Conditions 1. Section 106.51(b)(6) Employment—Granting and Return from Leaves 2. Section 106.57 Parental, Family, or Marital Status; Pregnancy or Related Conditions 3. Section 106.57(a) Parental, Family, or Marital Status 4. Section 106.57(b) Pregnancy or Related Conditions 5. Section 106.57(c) Comparable Treatment to Other Temporary Medical Conditions 6. Section 106.57(d) Voluntary Leaves of Absence 7. Section 106.57(e) Lactation Time and Space 8. Section 106.60 Pre-Employment Inquiries IV. Title IX's Coverage of Sex Discrimination A. Section 106.10 Scope 1. General 2. Authority to Enact Regulations on Sexual Orientation and Gender Identity Discrimination 3. Reliance on Bostock and Title VII Case Law 4. Sexual Orientation and Gender Identity Discrimination Generally 5. Gender Identity 6. Sexual Orientation 7. Sex Characteristics 8. Sex Stereotypes 9. Pregnancy or Related Conditions 10. Menstruation or Related Conditions B. Section 106.31(a) Education Programs or Activities—General 1. De Minimis Harm Standard 2. Application 3. Participation Consistent with Gender Identity 4. Parental Rights 5. Intersection with Health Care 6. Intersection with Individuals' Religious Beliefs 7. Appearance Codes 8. Juvenile Justice Facilities 9. Burden on Schools V. Retaliation A. Section 106.71 Retaliation 1. General Support and Opposition 2. Intersection with § 106.45(h)(5) 3. Examples of Prohibited Retaliation 4. First Amendment 5. Requests to Clarify or Modify 6. Other Clarifications to Regulatory Text B. Section 106.2 Definition of “Retaliation” 1. Protected Activity 2. Adverse Action 3. Causal Connection 4. Other Clarifications to Regulatory Text C. Section 106.2 Definition of “Peer Retaliation” VI. Outdated Regulatory Provisions A. Section 106.3(c) and (d) Self-Evaluation B. Sections 106.2(s), 106.16, and 106.17 Transition Plans C. Section 106.41(d) Adjustment Period VII. Miscellaneous A. General Support and Opposition B. Parental Rights—Generally C. Religious Exemptions 1. General Support and Opposition 2. Section 106.12(c) 3. Section 106.12(b) 4. Transparency 5. Religious Individuals 6. 34 CFR 75.500(d) and 76.500(d) D. Rulemaking Process E. Length of Public Comment Period and Process for Submitting and Posting Comments F. Effective Date and Retroactivity G. Prevention H. Tenth Amendment I. Exceeding Authority J. Views of Assistant Secretary Lhamon K. Regulatory Action Not Necessary L. Need for Long-Lasting, Flexible Regulations M. Intersection with Other Laws N. Family Policymaking Assessment O. National Origin and Immigration Status P. Coverage of Employment Q. Funding for Compliance R. Technical Assistance S. Coordination T. Terminology U. Discipline of Student Organizations V. Contractors W. Data Collection and Climate Surveys X. OCR Enforcement Practices Y. Severability Z. Addressing Other Issues AA. Comments Outside the Scope of Title IX Regulatory Impact Analysis (RIA) A. Comments on the Department's Model and Baseline Assumptions 1. Regulatory Flexibility Act (Small Business Impacts) 2. Taxpayer Costs 3. Cost Estimate 4. Definition of Sex-Based Harassment (§ 106.2) 5. Nondiscrimination Policy and Grievance Procedures (§ 106.8) 6. Training Requirements (§ 106.8(d)) 7. Recordkeeping (§ 106.8(f)) 8. Application of Title IX (§ 106.11) 9. Duty to Address Sex Discrimination (§ 106.44) 10. Title IX Coordinator Obligations: Duty to Monitor (§ 106.44(b) and (f)) 11. Notification Requirements (§ 106.44(c)) 12. Provision of Supportive Measures (§ 106.44(f)-(g)) 13. Impartial Review of Supportive Measures (§ 106.44(g)(4)) 14. Grievance Procedures (§§ 106.45 and 106.46) 15. Regulatory Stability and Reliance Interests 16. Training for Decisionmakers (§ 106.46(f)(4)) 17. Single-Investigator Model (§ 106.45(b)(2)) 18. Pregnancy or Related Conditions (§§ 106.40 and 106.57(e)) 19. Scope of Sex Discrimination (§ 106.10) 20. Menstruation or Related Conditions 21. Other B. Regulatory Impact Analysis (RIA) 1. Need for Regulatory Action 2. Discussion of Costs, Benefits, and Transfers 3. Benefits of the Final Regulations 4. Costs of the Final Regulations 5. Regulatory Alternatives Considered 6. Accounting Statement C. Regulatory Flexibility Act (Small Business Impacts) 1. Introduction 2. Final Regulatory Flexibility Analysis Executive Order 12250 On Leadership And Coordination of Nondiscrimination Laws Paperwork Reduction Act of 1995 Assessment of Educational Impact Federalism Accessible Format Electronic Access to This Document Effective Date As detailed more extensively below, the Department recognizes the practical necessity of allowing recipients of Federal financial assistance time to plan for implementing these final regulations. Taking into account the need for the time to plan, as well as consideration of public comments about an effective date as explained in the discussion of Effective Date and Retroactivity (Section VII.F), the Department has determined that these final regulations are effective August 1, 2024. Executive Summary 1. Purpose of This Regulatory Action Enacted in 1972, Title IX states that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” absent certain exceptions. 20 U.S.C. 1681. 1 The U.S. Department of Education (the “Department” or “we”) has authority to issue rules effectuating this prohibition on sex discrimination consistent with the objectives of the statute. 20 U.S.C. 1682. The history of the Title IX regulations is described in the preamble to the 2020 amendments to the Title IX regulations. 85 FR 30026, 30028 (May 19, 2020) (hereinafter “the 2020 amendments”); see also 87 FR 41390, 41393-95 (July 12, 2022). The 2020 amendments specify how a recipient 2 must respond to sexual harassment, and the preamble to the 2020 amendments acknowledged that the regulations issued under the 2020 amendments represented a partial change from the way the Department had enforced Title IX with respect to recipients' duties to respond to sexual harassment prior to the 2020 amendments. 85 FR 30068. 1 The definition of the term “Federal financial assistance” under the Department's Title IX regulations is not limited to monetary assistance, but encompasses various types of in-kind assistance, such as a grant or loan of real or personal property, or provision of the services of Federal personnel. See 34 CFR 106.2(g). Throughout this preamble, terms such as “Federal funding,” “Federal funds,” and “federally funded” are used to refer to “Federal financial assistance,” and are not meant to limit application of the statute or its implementing regulations to recipients of certain types of Federal financial assistance. 2 Throughout this preamble, “recipient” is used to refer to a recipient of Federal financial assistance from the Department. Based on an extensive review of the 2020 amendments, information including stakeholder feedback received prior to the issuance of the notice of proposed rulemaking (the “July 2022 NPRM,” 87 FR 41390 (July 12, 2022)), and consideration of public comments on the July 2022 NPRM, the Department has determined that amendments are required to fully effectuate Title IX's sex discrimination prohibition. Even if these amendments are not strictly required to effectuate the prohibition, the Department has, in the exercise of its discretion, determined that they further Title IX's prohibition on sex discrimination. The Department therefore issues these final regulations to provide greater clarity regarding: the definition of “sex-based harassment”; the scope of sex discrimination, including recipients' obligations not to discriminate based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity; and recipients' obligations to provide an educational environment free from discrimination on the basis of sex. Additionally, these regulations aim to fulfill Title IX's protection for students, teachers, and other employees in federally funded elementary schools and secondary schools and postsecondary institutions against all forms of sex discrimination, including sex-based harassment and sexual violence. The final regulations will help to ensure that all students receive appropriate support when they experience sex discrimination and that recipients' procedures for investigating and resolving complaints of sex discrimination are fair to all involved. These final regulations also better account for the variety of recipients and education programs or activities covered by Title IX and provide discretion and flexibility for recipients to account for variations in school size, student populations, and administrative structures. These regulations: • Require recipients to adopt grievance procedures that provide for fair, prompt, and equitable resolution of complaints of sex discrimination and to take other necessary steps to provide an educational environment free from sex discrimination; • Clarify that Title IX's prohibition on sex discrimination includes sex-based harassment in the form of quid pro quo harassment, hostile environment harassment, and four specific offenses (sexual assault, dating violence, domestic violence, and stalking); and • Clarify that sex discrimination includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. 2. Summary of the Major Provisions of This Regulatory Action With regard to sex-based harassment, the final regulations: • Define “sex-based harassment” as a form of sex discrimination that includes sexual harassment and harassment based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, or gender identity, that is quid pro quo harassment, hostile environment harassment, or one of four specific offenses referenced in the Jeanne Clery Disclosure of Campus Security Policy and Campus Crimes Statistics Act (“Clery Act”) as amended by the Violence Against Women Reauthorization Act of 2013; • Provide and clarify definitions of various terms related to a recipient's obligations to address sex discrimination, including sex-based harassment; • Clarify a recipient's required response to sex discrimination, including sex-based harassment, in its education program or activity; • Strengthen a recipient's obligations to provide prompt and equitable grievance procedures and to take other necessary steps when it receives a complaint of sex discrimination, including sex-based harassment; and • Provide for additional requirements in grievance procedures at postsecondary institutions for complaints of sex-based harassment involving a student complainant (a student who is alleged to have been subjected to conduct that could constitute sex discrimination) or student respondent (a student who is alleged to have violated the recipient's prohibition on sex discrimination). With regard to discrimination against individuals who are pregnant or parenting, the final regulations: • Define the terms “pregnancy or related conditions” and “parental status”; • Clarify the prohibition on discrimination against students and applicants for admission and employees or applicants for employment on the basis of current, potential, or past pregnancy or related conditions; and • Clarify a recipient's obligations to students and employees who are pregnant or experiencing pregnancy-related conditions. In addition, the final regulations: • Clarify and streamline administrative requirements with respect to designating a Title IX Coordinator, disseminating a nondiscrimination notice, adopting grievance procedures, and maintaining records; • Specify that a recipient must train a range of relevant persons on the recipient's obligations under Title IX; • Clarify that, except as permitted by certain provisions of Title IX or the regulations, a recipient must not carry out any otherwise permissible different treatment or separation on the basis of sex in a way that would cause more than de minimis harm, including by adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity; and • Clarify a recipient's obligation to address retaliation. Timing, Comments, and Changes On July 12, 2022, the Department published the July 2022 NPRM in the Federal Register to amend regulations implementing Title IX. 87 FR 41390. The Department invited the public to comment on all aspects of the proposed regulations, as well as the Regulatory Impact Analysis. The July 2022 NPRM also included several directed questions. 87 FR 41544. Comments in response to directed questions are addressed in this preamble in connection with the relevant regulatory section. In response to our invitation in the July 2022 NPRM, we received more than 240,000 comments on the proposed regulations. The final regulations contain changes from the July 2022 NPRM, and these changes are fully explained throughout the discussion in this preamble. We discuss substantive issues raised in the comments under topical headings, and by the sections of the final regulations to which they pertain, including an analysis of the public comments and changes in the final regulations since the publication of the July 2022 NPRM. Generally, we do not address technical and other minor changes (such as renumbering paragraphs, adding a word, or typographical errors). Throughout this preamble, the Department refers to Title IX of the Education Amendments of 1972, 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688, 1689, as amended, as “Title IX,” to the Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq., as the “IDEA,” to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 701 et seq., as “Section 504,” to the Americans with Disabilities Act, 42 U.S.C. 12101 et seq., as the “ADA,” to Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq., as “Title VI,” to Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., as “Title VII,” to section 444 of the General Education Provisions Act (GEPA), 20 U.S.C. 1232g, which is commonly referred to as the Family Educational Rights and Privacy Act of 1974, as “FERPA,” to the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. 1320d et seq., as “HIPAA,” to the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, 20 U.S.C. 1092(f), as the “Clery Act,” to the Violence Against Women Reauthorization Act of 2013, Public Law 113-4 (codified as amended throughout the U.S. code), as “VAWA 2013,” and to the Violence Against Women Act Reauthorization Act of 2022, Public Law 117-103 (codified as amended throughout the U.S. Code), as “VAWA 2022.” In 2013, the Clery Act was amended by VAWA 2013. See Public Law 113-4. In 2014, the Department amended the Clery Act regulations at 34 CFR 668.46 to implement the statutory changes to the Clery Act made by VAWA 2013. See 79 FR 62752 (Oct. 20, 2014). The regulations took effect on July 1, 2015. Throughout this preamble, references to the Clery Act mean the Clery Act as amended by VAWA 2013. These final regulations interpret the Title IX statute consistent with the Department's authority under 20 U.S.C. 1682. Throughout the preamble, we refer to “this part,” meaning 34 CFR part 106. These regulations' prohibitions on sex discrimination are coextensive with the statute, and any use of “and this part” or “or this part” should be construed consistent with the fact that the final regulations interpret the statute. The Department has revised the regulatory text to clarify, as appropriate. Throughout the preamble, the Department references statistics, data, research, and studies that commenters provided in response to the July 2022 NPRM. The Department's reference to these items, however, does not necessarily speak to their accuracy. The preamble also breaks up its discussion in several places as “Comments,” “Discussion,” and “Changes.” This structure is for readability, and the omission of a reference to a comment in the “Comments” section does not mean that a significant, relevant comment is not addressed in the “Discussion” section. The final regulations define and apply the terms “party,” “complainant,” and “respondent.” In this preamble, “complainant” generally means a person who is alleged to have been subjected to conduct that could constitute sex discrimination, “respondent” means a person who is alleged to have violated the recipient's prohibition on sex discrimination, and “party” means a complainant or a respondent. See § 106.2. References in this preamble to a party, complainant, respondent, or other individual with respect to exercise of rights under Title IX should be understood to include situations in which a parent, guardian, or other authorized legal representative exercises a legal right to act on behalf of the individual. See § 106.6(g). Many commenters referenced the impact of sex discrimination or the proposed regulations on individuals who belong to, or identify with, certain demographic groups, and used a variety of acronyms and phrases to describe such individuals. For consistency, throughout this preamble we generally use the term “LGBTQI+” to refer to people who are lesbian, gay, bisexual, transgender, queer, questioning, asexual, intersex, nonbinary, or describe their sex characteristics, sexual orientation, or gender identity in another similar way. When referring to some outside resources or past Department of Education, Office for Civil Rights (OCR) guidance documents, this preamble also uses variations of the LGBTQI+ acronym to track the content of those documents, as appropriate. In response to commenters who asked for clarification as to whether the definitions in § 106.2 apply to a term in a specific regulatory provision, some of the regulatory provisions specifically refer to a term “as defined in § 106.2” to provide additional clarity. Notwithstanding these points of additional clarification in certain regulatory provisions, the definitions in § 106.2 apply to the entirety of 34 CFR part 106. For consistency, references in this preamble are to the provisions as numbered in the final, and not the proposed, regulations. Citations to “34 CFR 106.” are citations to the Department's preexisting regulations and not these final regulations. Analysis of Comments and Changes An analysis of the public comments and changes in the final regulations since the publication of the July 2022 NPRM follows. I. Provisions of General Applicability A. Personal Stories Numerous commenters shared personal stories with the Department. These comments have been organized into three categories, and the discussion of all of these comments follows. 1. Experiences Relating to Title IX Grievance Procedures Comments: Numerous commenters shared with the Department experiences they have had as complainants or respondents, people supporting complainants or respondents, or persons or institutions involved in Title IX grievance procedures. Relating to complainants, such personal experiences included the following: • A wide variety of people from many backgrounds and identities shared their stories as individuals who experienced sexual harassment and assault, whether or not the incident became the subject of a Title IX complaint. A number of personal stories generally recounted sexual harassment and assault incidents impacting undergraduate and graduate students and university faculty at public and private postsecondary institutions. • Other commenters shared stories as individuals who knew complainants and witnessed the sexual harassment and assault, its aftermath, and the Title IX grievance procedures. These commenters included family members, friends and peers of the complainants, student advocates, faculty and administrators, and individuals participating in the Title IX grievance procedures. • Commenters described sexual harassment and assault by a wide variety of individuals. These included classmates, professors and faculty, student athletes, intimate partners and ex-partners, friends, and stalkers. • Commenters described sexual harassment and assault, their decision to engage with the Title IX grievance procedures, and their experience with sexual harassment and assault from prior to and after Title IX was enacted, prior to and after the U.S. Dep't of Educ., Office for Civil Rights, Dear Colleague Letter: Sexual Violence (Apr. 4, 2011) (rescinded in 2017) (2011 Dear Colleague Letter on Sexual Violence); U.S. Dep't of Educ., Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence (Apr. 29, 2014) (rescinded in 2017) (2014 Q&A on Sexual Violence), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf; and U.S. Dep't of Educ., Office for Civil Rights, Questions and Answers on Campus Sexual Misconduct (Sept. 2017) (rescinded in 2020) (2017 Q&A on Campus Sexual Misconduct), and prior to and after the 2020 amendments, https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf. • The Department received comments from individuals who described a range of traumatic incidents, including inappropriate and harassing behaviors, unwanted touching, stalking, incidents of rape or attempted rape, and longer-term emotionally and sexually coercive or intimidating interactions. • The Department received comments from individuals who did not report their experiences for various reasons, including because they feared that no one would believe them, did not know whom to report to or the process for reporting, felt frustrated by a lack of response, or did not want to relive the experience. • The Department received comments from individuals about the many detrimental effects that sexual harassment and assault can have on complainants. Individuals described the physical, emotional, and mental impacts of sexual harassment and assault, including feeling afraid to attend their postsecondary institution and suffering mental health symptoms such as post-traumatic stress disorder (PTSD) and suicidality. Individuals also described the educational impacts of sexual harassment and assault, including the inability to complete class assignments, dropping classes, changing majors or leaving areas of study, transferring schools, or leaving school altogether. • The Department received comments from complainants who, following the Title IX grievance procedures, felt that recipients did not hold respondents accountable, or who were reprimanded or faced repercussions for openly discussing their experiences and naming the respondents. • The Department also received stories from individuals about the dynamics of sexual assault and harassment in which individuals in positions of authority, including professors, faculty, or staff, repeatedly harassed or assaulted individuals, sometimes with the recipient's knowledge, and without meaningful action by the recipient to prevent continued abuse or conduct investigations into wrongdoing. • The Department received numerous comments from complainants who shared their views that the current Title IX system and its implementation by recipients is not protecting individuals from sexual harassment and assault or delivering justice for complainants and is instead perpetuating the harm. Commenters shared that they: had been failed by the system by being forced to relive their trauma through the Title IX grievance procedures, while being offered few protections; had faced a lack of resources for student complainants; and had encountered widespread systemic shortcomings and institutional negligence. Commenters stated that, in their experience, the Title IX grievance procedures put complainants in danger, disrupted their education, and allowed recipients to ignore their concerns, rather than work with complainants to address campus safety issues. • The Department received comments from complainants about the importance of Title IX in investigating complaints of sexual assault and providing relief that may not be available in the criminal justice system, but who said the 2020 amendments failed them. Some commenters shared that the 2020 amendments fail to protect complainants because they require cross-examination for postsecondary institutions, the process can be very lengthy, and other factors, such as the definition of sexual harassment, make it harder for complainants to come forward. Other commenters shared that the Title IX grievance procedures allow for separately tracked investigations into the same individual, without complainants' knowledge, making it more difficult to show an individual's pattern of misconduct. • The Department also received comments from complainants specific to how their schools handled the Title IX grievance procedures. Complainants shared their experiences on interactions with Title IX offices that, they felt, were mismanaged, left them feeling alienated and silenced, and further harmed their ability to access their educational opportunities. The Department received comments about Title IX offices that did not inform complainants about available resources, interviewed complainants in an inappropriate manner, and pushed complainants toward informal resolutions, despite their stated wish to pursue a formal hearing. Some commenters shared that student and staff efforts to improve the Title IX grievance procedures on campus and enhance complainant resources were rebuffed by administrators. Some commenters shared that because of their school's handling of their Title IX investigation, they no longer felt safe or welcome in higher education and had either dropped out of college or changed their plans for graduate education or careers in academia. • The Department received comments from complainants from student populations who already face challenges to their education, or face discrimination on campus, and about the specific burdens faced by those populations. Commenters who experience certain mental illnesses shared their particular susceptibility to coercive behaviors by their assailants, both during and after their assaults, and how their existing medical conditions made it harder both to be taken seriously by investigators and to recover enough to successfully engage in their educational experience. Other commenters, complainants who identify as LGBTQI+, shared that their Title IX investigators and school administrators did not take their complaints seriously and that the entire experience made them want to leave school. Relating to respondents, commenters reported personal experiences that included the following: • A variety of people shared their stories as respondents. Commenters included respondents who were postsecondary institution faculty and students, as well as friends, acquaintances, and family of respondents. The personal stories recounted the impact of Title IX investigations on the respondents when they were undergraduate and graduate students and university faculty at public and private postsecondary institutions. • Other commenters shared the negative consequences that an allegation of sexual harassment and assault can have on respondents, whether or not they are formally disciplined or found responsible at the conclusion of the grievance procedures. Commenters shared how such allegations can negatively impact someone's life, leave them with mental anguish and a tarnished record, and negatively impact their educational future and career opportunities. • The Department received some comments from individuals who expressed concern that the Title IX grievance procedures were generally unfair to respondents. Some commenters were concerned that investigators in certain Title IX investigations presume that the respondent was guilty, no matter the evidence. • The Department also received comments from individuals who expressed concern that the Title IX grievance procedures allow for false accusations. Some commenters shared that they knew multiple respondents who were involved in situations in which the complainants had originally initiated physical intimacy to start a relationship and only brought complaints when that did not materialize. Others expressed their views that complainants sometimes do not tell the truth and make up accusations to resolve personal disputes. Others expressed frustration that what they viewed as normal sexual exploration was being misconstrued as sexual assault. • The Department received comments from respondents who were forced to leave postsecondary institution faculty positions as part of settlements for investigations that they felt were unfair and based on misconstrued or fabricated facts. Commenters who were respondents said they felt coerced into signing settlement agreements because they did not have the emotional or financial capability to continue to defend themselves. 2. Experiences Relating to Pregnancy Comments: Several commenters shared with the Department experiences they have had with respect to pregnancy. Some commenters shared stories of students who experienced discrimination based on pregnancy or related conditions and lactation. One commenter shared the experience of someone who was excluded from school activities due to pregnancy and was required to attend a different school farther away, without transportation. The commenter noted that if the proposed regulations had been in place, the student would have understood her rights and more could have been done to protect her right to continue her education at the original school. One commenter mentioned a student who considered quitting school due to lack of an appropriate lactation space. The commenter referred to another student whose school denied lactation breaks entirely, causing the student to lose her milk supply. Another commenter shared a personal experience supporting a high school student whose academic honors designation was revoked because of rumors that she terminated a pregnancy. Some commenters stated that they were never informed of their rights as pregnant and parenting students under Title IX, including available supports for the healthcare needs of pregnant women. Some commenters described experiences of pregnancy-based harassment, noting that students who become pregnant are often subjected to unwanted sexual attention, shame, and even punishment. Other commenters supported strengthened protection for pregnant employees, sharing experiences of their own, or of friends or co-workers who experienced employment problems, such as a termination of employment due to difficulties related to pregnancy. 3. Experiences Relating to Sexual Orientation and Gender Identity Comments: The Department received numerous comments in support of and in opposition to the July 2022 NPRM's clarification of the application of Title IX's prohibition on sex discrimination to discrimination based on sexual orientation and gender identity. In support of the clarification that Title IX prohibits discrimination based on sexual orientation and gender identity, commenters shared personal experiences including the following: • Commenters from more than 40 States in all regions of the United States and in communities across the political spectrum shared their experiences as members of the LGBTQI+ community, or as parents, teachers, and friends of LGBTQI+ individuals. They described bullying and harassment of students based on sexual orientation and gender identity that ranged from single interactions with peers to systemic concerns such as constant verbal harassment, bullying, and threats of physical violence that are often ignored or excused by recipients from early elementary school through graduate school. ○ Some parents expressed concern that recipients do not understand the importance of a safe educational environment. Other parents expressed gratitude for the life-changing impact schools that prevent and meaningfully address incidents of harassment and bullying have on LGBTQI+ students. ○ Teachers shared their experiences supporting LGBTQI+ students in educational environments that do not support or encourage all students, which they stated impacts the ability of LGBTQI+ students to thrive and academically succeed. ○ School counselors shared their experiences providing academic and mental health supports to LGBTQI+ students being bullied or experiencing harassment and discrimination. Counselors stressed that supportive adults and educational environments can save LGBTQI+ students' lives. • LGBTQI+ students and their parents and teachers shared that harassment, bullying, and threats of physical violence leave students in constant fear, cause social anxiety and stress disorders, and too frequently result in suicidality. Some students who identify as LGBTQI+ and as part of a racial or ethnic minority group or as a student with a disability discussed feeling pressure to hide their identity, which led them to avoid reporting harassment or discrimination that occurs at school. • A number of commenters living in districts or States where local government has discussed or enacted bills that limit the rights of LGBTQI+ people, shared how these actions negatively impact the mental well-being and academic experience of LGBTQI+ students. • Many commenters shared experiences unique to nonbinary and transgender students. ○ Commenters who identified as nonbinary or transgender shared their experiences being threatened and physically attacked and explained the lasting anxiety and fear that those experiences cause in addition to the significant impact such experiences have on their ability to engage academically. ○ Transgender students shared being forced to use school facilities that do not align with their gender identity, feeling unsafe using the facilities, or not having access to gender neutral facilities. ○ Commenters asserted that a safe educational environment for nonbinary and transgender students is a matter of life or death. Many transgender students shared that they or their friends had attempted suicide because of the discrimination and harassment they had experienced. ○ Transgender students in school districts that they viewed as supportive shared the positive impact such schools have on their social, emotional, and academic well-being. In opposition to clarification that Title IX prohibits discrimination based on sexual orientation and gender identity, commenters described personal experiences including the following: • Many commenters asked that Title IX focus only on ensuring cisgender girls and women have equal access to education. ○ Two grandmothers shared their memories of being forced to fundraise for basic sports equipment and being told not to pursue certain careers because they were girls. ○ Another grandmother who worked with pregnant and parenting teens shared her experience witnessing these students face significant obstacles and prejudices. Both she and a minister who has worked with women who have experienced sex discrimination, including sexual assault, expressed concern that the proposed regulations would, in their view, harm many cisgender women and their futures. ○ Some commenters worried that the proposed regulations would negatively impact the developmental progress of their children. • Some commenters expressed concern that the proposed regulations would negatively impact parents and families. ○ Commenters, including grandparents and parents, shared their families' experiences with different educational environments, and expressed general concern that the proposed regulations would, in their view, interfere in the personal lives of families. ○ Other commenters expressed concern that the proposed regulations would diminish the role of parents in helping children make decisions. • Some commenters expressed concern that cisgender students experience discomfort at school when they are required to participate in activities and share facilities with transgender students. Discussion: The Department appreciates the time and effort spent by commenters who shared their personal experiences. The Department thoughtfully and respectfully considered all of the personal experiences, including of the many individuals who: have experienced sex-based harassment and been complainants in Title IX grievance procedures; have been respondents in Title IX grievance procedures; have looked to their elementary schools, secondary schools, and postsecondary institutions for support following sex-based harassment and for prompt and equitable grievance procedures that are fair to all involved; have experienced pregnancy or related conditions; have worked with a parenting student; have experienced discrimination based on sexual orientation and gender identity; have a variety of viewpoints regarding sexual orientation and gender identity; and have supported or witnessed other individuals having such personal experiences. Many of the stories shared in the comments echo and expand upon themes that the Department heard through the June 2021 nationwide virtual public hearing on Title IX (June 2021 Title IX Public Hearing) and in listening sessions and stakeholder meetings held in 2021 and 2022. As the Department explained in the July 2022 NPRM, the overarching goal of the proposed regulations was to ensure that no person experiences sex discrimination in education programs or activities that receive Federal financial assistance. See 87 FR 41396. The Department prepared the July 2022 NPRM with that goal in mind to assist recipients in implementing Title IX's nondiscrimination mandate fully and fairly in their educational environments, including with procedures for responding to complaints of sex discrimination that are prompt and equitable for all participants. See id. As a result of the robust public comment process, including from individuals personally affected by these issues, these final regulations even better reflect this goal. Changes: Specific changes made to the proposed regulations are described in the applicable sections of this preamble. B. Purpose 1. Section 106.1 Purpose Comments: One commenter expressed general support for proposed § 106.1. Another commenter asked the Department to consider removing “(with certain exceptions)” from proposed § 106.1 to more forcefully state the purpose of Title IX. Another commenter urged the Department not to remove “of the Education Amendments of 1972” from current § 106.1 because there are other Federal laws named “Title IX.” Another commenter objected to the language in proposed § 106.1 that states “whether or not such program or activity is offered or sponsored by an educational institution as defined in this part,” arguing that this would cover conduct outside of the educational context and exceed the scope of Title IX. Discussion: The Department declines the commenter's suggestion to remove the reference to Title IX's exceptions from § 106.1 because those exceptions are an important component of the statute. See 20 U.S.C. 1681(a)(1)-(9). The Department also declines the commenter's suggestion to use Title IX's full name in this section. The term “Title IX” is defined in § 106.2 to include the original statute and subsequent amendments, which are also relevant to Title IX's purpose. Further, the risk is low that the public will confuse a reference to “Title IX” in the Department's Title IX regulations with another Federal law. The Department disagrees with the commenter who objected to language in § 106.1 recognizing that Title IX applies to recipients other than educational institutions. This language has been in the purpose section of the regulations since the regulations were first issued in 1975 and reflects the fact that recipients that are not educational institutions ( e.g., libraries, hospitals) also offer education programs and activities, and those education programs and activities are covered by Title IX. See 20 U.S.C. 1681(a) (providing that Title IX's prohibition on sex discrimination applies to “any education program or activity receiving Federal financial assistance”); 20 U.S.C. 1687 (defining “program or activity” to include “a department, agency, special purpose district, or other instrumentality of a State or a local government”); see also U.S. Dep't of Health, Educ., & Welfare, Final Rule: Nondiscrimination on the Basis of Sex In Education Programs and Activities Receiving or Benefiting from Federal Financial Assistance, 40 FR 24128, 24137 (June 4, 1975). Changes: None. C. Definitions 3 3 Section I.C, “Definitions,” and Section I.D, “Other Definitions,” do not address all the definitions in the final regulations because certain definitions are discussed in other sections. For example, the definition of “confidential employee” is discussed in Section II.B as part of a broader discussion of confidential employee requirements that includes discussion of § 106.44(d). 1. Section 106.2 Definition of “Administrative Law Judge” Comments: Commenters generally supported the proposed definition of “administrative law judge” and said it would aid in consistent and effective enforcement of Title IX. One commenter interpreted the proposed definition of “administrative law judge” to mean that a hearing is required as part of a recipient's grievance procedures under the proposed regulations. Discussion: The Department acknowledges commenters' support for the Department's proposed definition of “administrative law judge.” The Department believes one commenter may have misunderstood the definition as requiring a hearing for all Title IX grievance procedures. As explained in the July 2022 NPRM, this revised definition of “administrative law judge” specifically refers and applies to a hearing held under § 106.81, which pertains to the Department's efforts to secure a recipient's compliance with Title IX. See 87 FR 41399. A hearing under § 106.81 is distinct from a hearing that may be conducted as part of a recipient's Title IX grievance procedures under §§ 106.45 or 106.46, neither of which requires a live hearing or participation of an administrative law judge. Changes: None. 2. Section 106.2 Definition of “Complainant” General Support Comments: Commenters expressed a range of perspectives and varied reasons for supporting the proposed regulations' broadened definition of “complainant,” which would permit a complaint by someone who is not currently a student or employee as long as that person was participating or attempting to participate in a recipient's education program or activity at the time of the alleged discrimination. Some commenters said that the restrictions of the 2020 amendments, requiring a complainant to be participating or attempting to participate in the recipient's education program or activity at the time of filing a complaint rather than at the time of the alleged discrimination, made it more difficult for recipients to investigate, address, and stop sexual harassment, and forced recipients to dismiss Title IX complaints brought by prospective students, former students, and former employees who experienced sexual harassment under the recipient's education program or activity. Commenters said there is no reason to exclude people from the protection of Title IX just because they left the school where the discrimination allegedly occurred. Commenters noted a variety of reasons that cause students to leave a school before filing a complaint, including to get mental or emotional support, to regain a sense of control, for fear of potential retaliation, for fear of losing support or recommendations from academic advisors, or simply because outside circumstances lead students to move in and out of educational programs over time. Commenters stated that allowing former students to make a complaint will encourage more reporting, prevent or deter future misconduct, and allow students to obtain closure and resolution and even return to school if the complaint is resolved. Commenters also asserted that the proposed definition would fill gaps left by the 2020 amendments and ensure schools are held accountable for their responses to sexual harassment. Some commenters appreciated that the proposed definition of “complainant” did not include the term “victim,” noting that omitting stigmatizing and harmful words from the regulations will promote reporting. One commenter said that delayed reporting is so common in sexual assault and other gender-based violence cases that the requirement to dismiss complaints from former students has prevented recipients from addressing conduct that could affect the campus environment. One commenter said that survivors need to feel validated and cited research finding that 59 percent of survivors wait to disclose, and usually disclose after first talking with family or friends. Commenters relied on multiple news stories, studies, and court decisions to illustrate that sexual harassment can cause individuals to drop out of school or transfer, and that the ability to address alleged harassment is important, both for the individuals who experience harassment and to prevent broader harm. Several commenters generally supported the proposed definition of “complainant,” but suggested additional clarification or modification. One group of commenters supported the right of persons to make a complaint as long as they were participating or attempting to participate in the recipient's education program or activity at the time of the alleged sex discrimination, but requested that the Department provide guidance and clarification regarding how a recipient should proceed in such cases, particularly because the Department proposed eliminating § 106.45(b)(3)(ii) of the 2020 amendments, which allows for the dismissal of a complaint when “specific circumstances” prevent the recipient from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein. Another commenter recommended that the Department add language making it clear that postdoctoral trainees, fellows, and all other individuals training under recipient institutions can be complainants, whether as a student or an employee. One commenter suggested that the Department make this provision retroactive to the extent possible because students who leave their schools prior to the effective date of these revised regulations should have a grace period to make a Title IX complaint under the new regulations. Discussion: With respect to a complaint brought by a former student or employee who was participating or attempting to participate in the recipient's education program or activity at the time of the alleged sex discrimination, the recipient should proceed just as it would with all other complaints under the recipient's grievance procedures in accordance with § 106.45, and if applicable § 106.46. If, at the time the complaint is filed, however, the respondent is no longer participating in the recipient's education program or activity or is no longer employed by the recipient, the complaint may be dismissed under § 106.45(d)(1)(ii). As explained in the July 2022 NPRM, the Department proposed to remove § 106.45(b)(3)(ii) because the term “specific circumstances” under which complaints could be dismissed was vague and undefined, and the Department determined that it would be preferable to revise the dismissal standard to instead include several defined bases for discretionary dismissal. 87 FR 41478. The Department declines to specify in the final regulations that a postdoctoral trainee or fellow may be a complainant. We note, however, that such an individual could fall into the definition of complainant as a student, employee, or other individual participating or attempting to participate in the recipient's education program or activity, particularly if—as the commenter suggests—they are training under a recipient postsecondary institution at the time of the alleged sex discrimination. While the Department understands commenters' desire to ensure that former students who were subjected to sex discrimination prior to the effective date of these regulations can still pursue a complaint, the Department does not intend the final regulations to be enforced retroactively, as stated in the July 2022 NPRM. 87 FR 41398. Under Federal law, agencies may only issue regulations with retroactive effect if the authorizing statute expressly grants such authority. See 5 U.S.C. 551(4) (Administrative Procedure Act provision defining a “rule” as an agency action with “future effect”); see also Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (“[A] statutory grant of legislative rulemaking authority will not, as a general matter, be understood to encompass the power to promulgate retroactive rules unless that power is conveyed by Congress in express terms.”). Title IX contains no such express grant of authority. For more information about retroactivity, see the discussion of Effective Date and Retroactivity (Section VII.F). Changes: At the end of paragraph (1) of the definition of “complainant,” after “Title IX,” the Department added the words “or this part” for the reasons discussed in the Background/Introduction, Executive Summary section of this preamble. For the same reasons, the Department also added “or this part” after the reference to Title IX in paragraph (2). The Department also has made a minor technical edit by replacing “when the alleged sex discrimination occurred” with “at the time of the alleged sex discrimination” in final § 106.45 (a)(2)(iv)(B). General Opposition Comments: Some commenters expressed general opposition to the definition of “complainant” in § 106.2, including on the grounds that it exceeds the Department's authority or does not align with Title IX and case law. Some commenters asserted that the proposed definition of “complainant” was too broad, including because it applies to all sex discrimination and not just sexual harassment; because former students and employees allegedly do not face barriers to education and thus fall outside the scope of Title IX; and because including such individuals allegedly would allow them to make a complaint decades after leaving the institution, including opportunistic complaints about conduct that was not prohibited at the time it occurred. Commenters asserted that a lack of time limits for complainants would be burdensome for recipients, parties, and witnesses, result in complaints that are difficult to investigate, and likely lead to a waste of resources, abusive practices, and unfair or unsatisfactory outcomes that do not further Title IX's goal of addressing sexual harassment in education programs and activities, due in part to limitations on remedies a university can impose after a student is no longer enrolled. Some commenters questioned whether volunteers who experience sex discrimination would be able to bring a complaint subject to the grievance procedures and suggested that may inhibit the ability to recruit volunteers. Some commenters anticipated that the volume of Title IX complaints would increase because of the proposed definition of “complainant” together with other proposed changes, such as the inclusion of discrimination based on gender identity as a form of sex discrimination, the allowance of allegations that involve off-campus conduct, the removal of the actual knowledge standard, and the requirement that a recipient's employees report allegations to the Title IX Coordinator even when there is no complainant or the individual who experiences sex discrimination does not wish to report it. One commenter suggested that if the Department is no longer going to require a complainant to be engaged in the education program or activity at the time the complaint is filed, it should make that requirement apply only prospectively. Discussion: As the Supreme Court has recognized, the Department has regulatory authority under Title IX to issue regulations that the Department determines will best effectuate the purpose of Title IX, and to require recipients to take administrative action to effectuate the nondiscrimination mandate of Title IX. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 292 (1998). The Department disagrees that the definition of “complainant” is too broad. As the Department explained in the July 2022 NPRM, it is appropriate to apply the same definition of “complainant” to all forms of sex discrimination, not just sex-based harassment. 87 FR 41407-08. These final regulations are intended to effectuate the purpose of Title IX, which is to eliminate any “discrimination on the basis of sex in any education program or activity receiving Federal financial assistance”—not just sex-based harassment. 34 CFR 106.1; 20 U.S.C. 1681(a); see also 87 FR 41393. Accordingly, consistent with the longstanding requirement that a recipient must have grievance procedures that provide for the “prompt and equitable resolution of student and employee complaints alleging any action that would be prohibited by” the Title IX regulations, 40 FR 24128, the final regulations also require a recipient to adopt grievance procedures that provide for the prompt and equitable resolution of all complaints of sex discrimination, not just sexual harassment, and to take other necessary steps to provide an educational environment free from sex discrimination, see 87 FR 41390. This requirement will help recipients fully and fairly implement Title IX's nondiscrimination mandate in their education programs or activities and is within the Department's authority to ensure compliance with the law. The Department does not agree with commenters' contention that former students or employees fall outside the scope of Title IX because they no longer face barriers to participation in the recipient's education program or activity. Title IX protects all “person[s]” from sex discrimination, 20 U.S.C. 1681(a)(1), and the relief it affords is not limited to persons who are presently experiencing sex discrimination as long as the discrimination they allegedly experienced was within the scope of the statute's protections at the time it occurred. This means that former students and employees may seek relief under Title IX if they were previously “excluded from participation in,” “denied the benefits of,” or “subjected to discrimination under any education program or activity receiving Federal financial assistance.” Title IX also protects students, employees, and others who continue participating in the education program or activity from sex discrimination that may persist or may be remedied after the specific complainant no longer participates. Limiting a recipient's responsibility to address sex discrimination to those circumstances in which a complainant continues participating in the program or activity fails to ensure that others who continue to participate benefit from the nondiscrimination guarantee in Title IX. As other commenters noted, the revised definition of “complainant” could increase the reporting of sex discrimination because individuals struggle with the decision whether to report an incident at the time it happens or while they are still a student or employee, and the Department maintains that encouraging reporting is an important factor in ensuring that recipients can meet their Title IX nondiscrimination obligations. This definition of “complainant” is well within the scope of Title IX because it will help to ensure that a recipient operates its education program or activity free from sex discrimination. The Department recognizes commenters' concerns that the definition of complainant together with other aspects of the final regulations, including new § 106.10 and changes to §§ 106.11 and 106.44, will likely result in an increase in Title IX complaints for some recipients and possible additional administrative costs for some recipients. However, it is the Department's position that ensuring a recipient fully addresses all sex discrimination occurring under its education program or activity, consistent with Title IX, is not optional, is of paramount importance, and properly accounts for financial costs to a recipient and for pecuniary and non-pecuniary costs to students who experience sex discrimination in a recipient's education program or activity. For more discussion of the Department's evaluation of the costs and burdens of the final regulations, see the Regulatory Impact Analysis. The Department has carefully considered the commenters' concerns and disagrees that the change in the definition of “complainant” will invite new complaints decades after a student or employee has left a recipient institution alleging conduct that was not prohibited at the time it occurred. As stated in the July 2022 NPRM and in the discussion of Effective Date and Retroactivity (Section VII.F), the Department intends the final regulations to be enforced prospectively and not retroactively. 87 FR 41398. Therefore, if an individual who left a recipient institution makes a complaint requesting compliance solely with regulatory requirements that were not in effect at the time of the alleged conduct, the recipient would dismiss the complaint. Independently, a recipient may dismiss a complaint under § 106.45(d)(1)(ii) if the respondent is not participating in the education program or activity and is not employed by the recipient, or under § 106.45(d)(iv) if the allegations, even if proven, would not constitute sex discrimination under Title IX or this part. For the reasons discussed here and above in the section on the Definition of Complainant: General Support, the Department also has determined that the benefits of allowing complaints by former students and employees who were subjected to sex discrimination while participating or attempting to participate in a recipient's education program or activity justifies the potential risk and investigative challenges of a complaint filed after someone leaves a recipient institution. As noted above, commenters reported that sex-based harassment can cause targeted students to drop out of school or transfer schools to get away from the discriminatory environment or remove themselves from a harmful or threatening situation; others may fear retaliation and thus not feel comfortable making a complaint until after they leave the institution. Commenters also noted that an employee who experiences harassment may leave their job or fear retaliation and refrain from reporting the harassment until they have taken a new job. Under such circumstances, it is important for the recipient to fulfill its Title IX obligations: to ensure that students and employees who want to return can do so free from sex discrimination; to prevent further harm and to ensure that a hostile environment does not persist for the remaining members of the school's community; and to investigate and properly address allegations of sex discrimination in its education program or activity. Finally, the Department disagrees with commenters who suggested that covering volunteers in the definition of “complainant” will make it more difficult for recipients to recruit and retain volunteers. Title IX protects all “person[s]” from sex discrimination under a recipient's education program or activity, 20 U.S.C. 1681(a), and ensuring that volunteers can participate free from sex discrimination should aid in recruitment and retention of such resources, not hinder it. Changes: None. Participating or Attempting To Participate Comments: Some commenters expressed support for the proposed definition of “complainant,” but asked the Department to define and provide examples of certain terms within the definition, including “attempting to participate” and “participating or attempting to participate in the recipient's education program or activity.” One commenter suggested that “applying” would be a clearer term. Discussion: Whether someone is participating or attempting to participate in a recipient's education program or activity requires a fact-specific analysis to be made on a case-by-case basis. The Department explained in the July 2022 NPRM that under the proposed definition of “complainant,” someone who is not a student (or person authorized to act on behalf of a student) or an employee could still be a complainant if they were participating or attempting to participate in the recipient's education program or activity as, for example, a prospective student, or a guest speaker. 87 FR 41408. The participation requirement was added in the 2020 amendments. It is not meant to limit who can report sex discrimination or a recipient's obligation to respond promptly—such as by offering supportive measures and explaining the process for filing a complaint—but rather to prevent a recipient from being legally obligated to initiate its grievance procedures based on a complaint from a person having no relationship to the recipient. 87 FR 41409 (citing preamble to the 2020 amendments, 85 FR 30138, 30198). The definition of “complainant” in these final regulations shifts the focus of the analysis, however, from whether the participation or attempted participation occurred at the time the complaint was filed—as the 2020 amendments require—to the time of the alleged sex discrimination. See 87 FR 41410. The Department has concluded that requiring participation or attempted participation at the time of the alleged discrimination is better aligned with Title IX's text and its goal of ensuring that a recipient operates its education program or activity free from sex discrimination because it addresses conduct that would have interfered with the complainant's ability to participate in the recipient's education program or activity. As the First Circuit explained in Doe v. Brown University, 896 F.3d 127, 132 & n.6, 133 (1st Cir. 2018), complainants are not limited to a university's enrolled students; they can include members of the public who “are either taking part or trying to take part of a funding recipient institution's educational program or activity” when they attend events such as campus tours, sporting events, and lectures, as long as the alleged discrimination relates to the individual's participation or attempted participation in such program or activity. The participation requirement is thus consistent with Federal appellate decisions, including one handed down since the issuance of the July 2022 NPRM, holding that the scope of Title IX's “no person” and “subject to discrimination under” language extends to persons who are not students or employees but who experience discriminatory treatment while participating, or at least attempting to participate, in a recipient's education program or activity. See Snyder-Hill v. Ohio State Univ., 48 F.4th 686, 707-09 (6th Cir. 2022) (reversing district court's dismissal of Title IX claims by non-student plaintiffs who were allegedly subject to sexual abuse while attending or participating in sporting events, summer camp, or a tour of the school's athletics facilities), reh'g denied, 54 F.4th 963 (6th Cir. 2022), cert. denied, 143 S. Ct. 2659 (2023). The Department does not agree that “applying” is a better way to describe “attempting to participate” because “applying” is too narrow in scope. Even someone who is not applying for admission to a recipient might be participating or attempting to participate in its education program or activity, such as a prospective student visiting a campus, a visiting student-athlete, or a guest speaker. See 87 FR 41408. Changes: None. Requests To Broaden Definition Comments: Several commenters suggested broadening the definition of “complainant,” including by removing the distinction between students, employees, and other persons and by including all campus visitors whether or not they are participating or attempting to participate in a recipient's education program or activity at the time of the alleged sex discrimination. With respect to removing the participation requirement for visitors, commenters said that if the goal is to prevent recurrence of discrimination, a recipient still has the responsibility to address misconduct when a visitor to a recipient's campus is sexually assaulted by a student, even if the visitor may not be participating or attempting to participate in the recipient's education program or activity at the time of the alleged sex discrimination. Commenters also proposed eliminating the participation or attempted participation requirement altogether. One commenter suggested simply covering “a student, employee, or other person alleged to have been subjected to unlawful sex discrimination under Title IX,” and noted that “conduct” may not be the correct term to use because Title IX can be violated by commission of an act but also by omission, or a failure to act. Discussion: The Department declines to further broaden the definition of “complainant” beyond changing the frame of reference from participation at the time of the complaint to the time of the alleged discrimination. Consistent with case law on this issue, it is appropriate to distinguish between individuals who have a clear connection to the recipient (students and employees), and other individuals. The Department purposefully limited the individuals who can be complainants to those who are participating or attempting to participate in the recipient's education program or activity at the time of the alleged discrimination because the Department does not understand Title IX as imposing a duty on a recipient to address conduct that could constitute sex discrimination when that conduct could not have “excluded” the individual from “participating in” or denied them the benefits of a recipient's education program or activity. 20 U.S.C. 1681(a). As the First Circuit has explained, this language means that a “person must suffer unjust or prejudicial treatment on the basis of sex while participating, or at least attempting to participate, in the funding recipient's education program or activity.” Brown Univ., 896 F.3d at 131. As discussed above, a visitor could be a complainant, but that will be a fact-based determination that will depend, for example, on the reason for the visit and what the individual was doing at the time of the alleged discrimination. Finally, the Department agrees that Title IX can be violated not only by commission of an act but also by a failure to act. No change is needed, though, because the phrase “conduct that could constitute sex discrimination” includes both a recipient's actions and its inaction in derogation of its Title IX obligations. See, e.g., 87 FR 41423 (stating that “[t]he proposed regulations also recognize that remedies may be appropriate when the recipient's own action or inaction in response to an allegation of sex discrimination resulted in a distinct Title IX violation”). Changes: None. 3. Section 106.2 Definition of “Complaint” General Support Comments: Some commenters supported the proposed expansion of “complaint” to include complaints made orally or in writing and with or without a signature, and further supported removing the requirement from the 2020 amendments that a formal complaint be submitted before a recipient can investigate or offer informal resolution options. In support of removing the formal complaint requirement, some commenters pointed out the challenges it posed for certain students and their families because of age, disability, or ability to write or communicate. Some commenters asserted that the formal complaint requirement is arbitrary and overly prescriptive and allows a recipient to disregard valid complaints that do not conform exactly to the specific complaint requirements. Other commenters shared that even postsecondary students are hesitant to submit formal complaints, in part out of fear of retaliation due to the level of detail required, and stated that deterring complaints of sex-based harassment contravenes the purpose of Title IX. Some commenters appreciated that the proposed definition of “complaint” would offer more flexibility that will streamline the complaint process, empower students, and better serve the purpose and intent of Title IX. Some commenters pointed out that the proposed definition of “complaint” will provide more opportunities for students with disabilities or who need alternative forms of communication to make complaints. Some commenters asked for clarification on what constitutes a “request to the recipient” to initiate grievance procedures, citing the risk of confusion and liability to recipients without further clarification, and a need for more information in order to train staff and ensure that employees understand their responsibilities. Some commenters expressed concern that a complainant may not realize they have to ask the recipient to initiate the grievance procedures, and requested clarification on whether a complainant must specifically use the phrase “initiate the recipient's grievance procedures” or whether a complainant can use alternative language to prompt the recipient to initiate the grievance procedures, such as “start an investigation” or “look into this matter of sex discrimination.” One commenter asked whether only asking questions about the grievance procedures would trigger an investigation. One commenter who commended the proposed removal of the formal complaint requirement suggested that the Department require some form of written documentation of the complaint, short of the formal complaint requirement, to commence an investigation and provide clarity for both students and recipients. One commenter who supported the proposed definition of “complaint” requested that the regulations explicitly state that oral or written complaints from students with disabilities may be made through adaptive communication formats such as sign language, physical gestures, drawings, or communicating through an aide or caregiver, citing these formats as critical for non-verbal students or students with other communication challenges. One commenter suggested that the proposed definition of complaint use the term “verbal” instead of “oral,” noting that “verbal” is more precise. Discussion: The Department acknowledges commenters' support for the proposed revision of the definition of “complaint.” The Department shares commenters' concerns that the proposed definition might be confusing to recipients or complainants because a recipient might interpret the proposed definition to mean that, to make a complaint, the complainant must specifically ask the recipient to “initiate” its “grievance procedures” and might think the complainant needs to reference § 106.45. The Department recognizes that a complainant may not be familiar with those terms or know what they mean, even though the complainant may want the recipient to investigate and determine whether sex discrimination occurred. The Department therefore has modified the proposed definition of a Title IX “complaint” to be an oral or written communication to the recipient that objectively can be understood as a request for the recipient to investigate and make a determination about alleged sex discrimination under Title IX and the relevant implementing regulations. Accordingly, a complainant need not use any particular “magic words”—such as the phrase “initiate the recipient's grievance procedures”—in order to trigger a recipient's obligation to investigate the matter. To be clear, by saying that a communication constitutes a complaint when it “objectively” can be understood as a request to investigate and make a determination, the Department means it can be understood as such by a reasonable person. This is a fact-specific determination, but in general amounts to more than a student's general questions about grievance procedures. The Department also declines to require some form of written documentation of the complaint, short of the formal complaint requirement, to commence an investigation. The Department notes that § 106.8(f) of these final regulations includes recordkeeping obligations such that the recipient will have to maintain (1) for each complaint of sex discrimination, records documenting the informal resolution process or the grievance procedures and the resulting outcome, and (2) for each notification that the Title IX Coordinator receives of information about conduct that reasonably may constitute sex discrimination under Title IX or the implementing regulations, records documenting the actions the recipient took to meet its obligations under § 106.44. Exactly how to document the information the recipient receives and the steps the recipient takes in response is appropriately left up to each recipient. The Department appreciates the suggestion to specify in the regulatory text that a recipient is required to facilitate communication with a complainant using adaptive formats as required to accommodate their needs, but the Department does not think that such a change is necessary. The phrase “oral or written” is broad enough to include complaints made using most adaptive communication formats, and it would be unreasonable for a recipient to refuse to consider a complaint made, for example, using sign language. Further, if a complainant has a disability, that individual retains full rights under Section 504 and the ADA, as applicable. In addition, the Department declines to change the word “oral” to “verbal.” The primary definition of “verbal” is relating to or consisting of words, which sometimes is understood as spoken and other times as written. In contrast, the primary definition of “oral” is uttered by the mouth or in words and is understood to be spoken. See Verbal, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/verbal (last visited Mar. 12, 2024); Oral, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/oral (last visited Mar. 12, 2024). Therefore, the Department believes the term “oral” is more consistent with the intended meaning. Changes: The Department has revised the definition of “complaint” in § 106.2 to be an oral or written request to the recipient that objectively can be understood as a request for the recipient to investigate and make a determination about alleged discrimination under Title IX and this part. General Opposition Comments: Some commenters opposed allowing oral complaints, asserting that the proposed definition of “complaint” exceeds the Department's statutory authority and is inconsistent with Title IX and case law. Some commenters questioned the integrity of oral complaints, equated them with hearsay, and asserted that they could lead to incomplete or incorrect complaints and mishandled investigations. Some commenters argued that a written accounting of allegations requires a level of certainty regarding the nature and scope of the allegations, allows a recipient to make informed preliminary assessments on whether and how to proceed, and enables a recipient to assess the complainant's credibility and consistency over time. Some commenters asserted that the writing and signature requirements under the 2020 amendments should be retained because they require deliberation and informed action, including considering the consequences of filing a complaint. Some commenters asserted that the proposed definition of “complaint” would contradict the definition that OCR uses for enforcement purposes, noting that OCR requires individuals submitting complaints to OCR to submit a written statement and does not consider oral allegations that are not reduced to writing to be a complaint. Discussion: Contrary to commenters' assertions, the definition of “complaint” in § 106.2 does not exceed the scope of the Department's congressionally delegated authority under Title IX. Title IX states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 28 U.S.C. 1681(a). The Supreme Court has recognized that the Department has authority under Title IX to issue regulations that the Department determines will best effectuate the purpose of Title IX, and to require a recipient to take administrative action to effectuate the nondiscrimination mandate of Title IX. See, e.g., Gebser, 524 U.S. at 292. The final regulations, including the definition of “complaint” in § 106.2, govern how a recipient responds to allegations of sex discrimination in its education program or activity and were promulgated to effectuate the purposes of Title IX. They will help recipients fully and fairly implement Title IX's nondiscrimination mandate in their education programs or activities. The Department disagrees with the assertion that the integrity of a Title IX investigation or complaint depends on whether a recipient requires the complaint to be in writing. There are a number of procedural protections built into the grievance procedure requirements in § 106.45, and if applicable § 106.46, which are designed to protect the integrity of a recipient's investigation and determination and to ensure a fair process for all parties, such as the requirements that a recipient provide the parties with an equal opportunity to access the evidence or an accurate description of the evidence (and if the recipient provides a description, the parties may request and then must receive access to the underlying evidence) and have an impartial decisionmaker resolve complaints. See 87 FR 41485; § 106.45(f)(4)(i), (b)(2). While a written complaint may help establish the boundaries of an investigation, it is neither necessary nor sufficient for doing so, and each recipient is responsible for following its grievance procedures and taking any additional steps it deems necessary to ensure its investigation and determination are sound. In addition, allowing complaints to be made orally is necessary for a recipient to ensure it is learning of and addressing all sex discrimination in its education program or activity, so any potentially increased burden on recipients is justified by the benefits of fulfilling Title IX's nondiscrimination mandate. The Department also disagrees with the suggestion that a complainant will only carefully consider the consequences of making a complaint if the complaint is written. Some commenters appeared to assume that if complaints are easier to make, some would be made hastily, allegedly increasing the risk they are without merit and therefore unreasonably burdening respondents even if ultimately they are found to be baseless. But the effectiveness of Title IX is better advanced if the requirements for making a complaint are not overly technical or difficult, and if before any disciplinary action is taken, a recipient has the obligation to investigate the conduct alleged. The Department has learned from decades of enforcing Title IX that persons who experience sex discrimination often do not bring complaints for many reasons, including the difficulty of making a complaint. These final regulations help reduce this barrier for complainants, and the Department has no reason to believe that people who make complaints—orally or in writing—will do so hastily. Therefore, the Department declines to require that all complaints of sex discrimination be made in writing. In addition, the Department acknowledges that Section 101 of OCR's Case Processing Manual (July 18, 2022) (Case Processing Manual), https://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.pdf, specifies that complaints filed with OCR must be in writing. However, there is a distinction between an administrative complaint asking a Federal regulatory agency to investigate allegations that a recipient failed to comply with its obligations and a complaint made to a recipient to fulfill its obligation in the first instance. A complaint to OCR starts the administrative process of a Federal agency, with potentially recipient-wide financial and operational consequences, as compared to the process of addressing complaints involving individual students or employees, which may require time-sensitive responses and which recipients handle every day in a broad range of contexts, including but not limited to Title IX. In addition, students and employees have an ongoing institutional relationship with the recipient that they do not have with OCR. Changes: None. Rights of Respondents Comments: Some commenters opposed allowing oral complaints, asserting that a written complaint is vital to ensuring a respondent's rights and should be required to initiate the recipient's grievance procedures and impose discipline that could take away a respondent's right to pursue their education. Other commenters similarly argued that a formal complaint is essential to upholding respondents' due process rights. They asserted that only written complaints provide the respondent with notice of the particulars of the allegations against them as required under proposed § 106.45(c)(1), and they asserted that oral complaints are often hard to decipher and leave a recipient unable to provide the respondent with notice sufficient to respond to the allegations against them. Discussion: The Department agrees that to ensure a fair resolution of complaints, a recipient must provide a respondent with notice of the allegations against them sufficient for them to respond, which is required under these final regulations. However, the Department maintains that requiring a formal, written complaint is not essential to ensuring a respondent receives sufficient notice of the allegations. Under final § 106.45(c), whether a complaint is made orally or in writing, the recipient is responsible upon initiation of its grievance procedures for providing sufficient notice of the allegations to the parties to allow them to respond to the allegations. And for complaints of sex-based harassment involving student complainants or student respondents at postsecondary institutions, written notice is required by § 106.46(c). As discussed throughout this preamble and in the July 2022 NPRM, the requirements for grievance procedures under § 106.45 establish the basic elements of a fair process. See, e.g., 87 FR 41461. They also comport with the requirements set out in Goss v. Lopez, 419 U.S. 565, 579, 581 (1975). See 87 FR 41473 (explaining that at a minimum, Goss requires a recipient to provide a student facing up to a 10-day suspension with notice of the allegations against them and an opportunity to present their account of what happened). For further explanation of how the final regulations comply with due process and fundamental fairness requirements, see the discussion of Due Process Generally (Section II.C). Changes: None. Rights of Complainants Comments: Some commenters opposed removal of a written complaint requirement because they felt it could create confusion and ambiguity about when to initiate grievance procedures, leading recipients to act either prematurely or not promptly enough. Those concerned about premature action asserted that requiring written complaints supports complainant autonomy because it gives the complainant the power to decide whether to proceed, and asserted that by contrast, under the 2020 amendments, there was little chance that an overzealous Title IX Coordinator would mischaracterize a complainant's intent and respond prematurely. Commenters concerned about a recipient's delayed response said that the proposed definition of complaint was overbroad and vague, and that allowing oral complaints might create confusion for students, families, Title IX Coordinators, and other staff about when to initiate the grievance procedures. These commenters said that a written complaint eliminates this confusion by creating a bright-line rule for initiating an investigation. Other commenters stated that a written complaint benefits the complainant because it serves as direct evidence that a complaint was made and helps the complainant hold a recipient accountable for properly investigating and resolving allegations of sex discrimination. Some commenters similarly pointed out that a recipient could choose not to investigate an oral complaint or could deny that an oral complaint was ever made, and the complainant would be unable to prove that a complaint was made due to the lack of a written record. Some commenters requested that the Department require all recipient employees to be trained on how to document an oral report, to avoid disputes that may arise as to whether the complainant really intended to initiate the grievance procedures. Commenters indicated that a misunderstanding might harm a complainant when a recipient notifies a respondent of a complaint that the complainant never intended. One commenter predicted that the proposed definition of “complaint” would require a complainant to watch what they say to the Title IX Coordinator or any other recipient employee to ensure that their request for advice or information is not perceived as a complaint, which would compromise the Title IX Coordinator's intended role as a trusted source to discuss allegations and supportive measures before deciding to proceed under the grievance procedures. Discussion: With respect to complainant autonomy, the Department agrees with commenters that it is important for a recipient to initiate the grievance procedures when requested by a complainant, and for a recipient not to initiate the grievance procedures if a complainant is not ready or does not want to initiate them, except in the limited circumstances in which the Title IX Coordinator determines that the conduct as alleged presents an imminent and serious threat to the health or safety of a complainant or other person or prevents the recipient from ensuring equal access based on sex to its education program or activity under § 106.44(f)(1)(v). However, the Department does not think that the answer is to require complaints to be made in writing, particularly given the benefits of the added flexibility, which many commenters acknowledged will help streamline the complaint process and better effectuate Title IX by facilitating a recipient's awareness of, and appropriate response to, sex discrimination in its education program or activity. In addition, as the Department noted in the July 2022 NPRM, during the June 2021 Title IX Public Hearing, as well as in meetings and listening sessions, several stakeholders stated that the onerous signature and writing requirements of the 2020 amendments discouraged individuals from making complaints. 87 FR 41409. Even if the writing and signature requirements of the 2020 amendments may have reduced the risk of premature or delayed action on the part of a recipient, the cost was a cumbersome process that created a barrier for potential complainants to effectively assert their rights under Title IX. The Department's view, informed by stakeholder input before the July 2022 NPRM and feedback from commenters in response, is that additional flexibility is needed for all complaints of sex discrimination to ensure that a recipient is aware of, and can respond appropriately to, sex discrimination in its education program or activity. The Department has carefully weighed the costs and benefits of including both oral and written requests in the definition of “complaint,” and has determined that the benefits of including both options justify the costs. The Department also maintains that the revised definition of “complaint,” which incorporates a “reasonable person” standard, will help to mitigate commenters' concerns about the risk of misunderstanding. As explained earlier, the Department has revised the definition in the final regulations in response to commenter input and to ensure clarity. Under the revised definition of “complaint,” whether oral or written, if the request can be objectively understood as a request for the recipient to investigate and make a determination about alleged sex discrimination under Title IX, then the recipient must interpret it as a request to initiate the grievance procedures. In addition, the Department notes that under § 106.44(f)(1)(iii), upon being notified of conduct that reasonably may constitute sex discrimination under Title IX, the Title IX Coordinator must notify a complainant, or the individual who reported the conduct if the complainant is unknown, of the grievance procedures under § 106.45, and if applicable § 106.46, and the informal resolution process under § 106.44(k) if available and appropriate. The Department anticipates that during such conversations, once the Title IX Coordinator has explained the grievance procedures, they will confirm whether the individual reporting the alleged discrimination does in fact want the recipient to conduct an investigation to make a determination regarding their allegations. Whether the answer is in the affirmative or the negative, nothing in the final regulations would preclude the Title IX Coordinator from memorializing in writing the outcome of that conversation to help avoid any possible confusion about agreed upon next steps. And although these regulations do not require a complaint to be in writing, nothing in these regulations prevents a complainant from memorializing their oral complaint in writing or confirming in writing that the recipient received their complaint. Moreover, as described above, these final regulations at § 106.8(f) contain specific recordkeeping requirements for each complaint of sex discrimination and each notification the Title IX Coordinator receives regarding conduct that reasonably may constitute sex discrimination. In addition, the required procedural protections of the grievance procedures and the recordkeeping obligations in § 106.8(f) will help to ensure that a recipient has sufficient information to initiate the grievance procedures. Regarding training for recipient employees on keeping track of oral allegations, the Department declines to specify any more than what is required by the final regulations at § 106.8(d). Section 106.8(d)(4) requires that the Title IX Coordinator and any designees be trained on a number of specific topics and receive any other training necessary to coordinate the recipient's compliance with Title IX. The latter is a matter for each recipient's discretion. Section 106.8(d) strikes the appropriate balance between requiring training on topics the Department considers necessary to promote a recipient's compliance with these final regulations, while leaving flexibility for a recipient to choose the content and substance of any additional training its employees may need. The Department does not share the commenter's concern that allowing oral complaints will compromise a Title IX Coordinator's ability to discuss allegations and supportive measures. The Title IX Coordinator is responsible for coordinating the recipient's compliance with its Title IX obligations, including by providing information to a complainant about the grievance procedures, and offering and coordinating supportive measures. The Title IX Coordinator's role is not to serve as a confidential advisor to the complainant or any other party. It is appropriate for a potential complainant to carefully explain to a Title IX Coordinator what they are alleging, and for the Title IX Coordinator to carefully confirm both what is being alleged and whether the complainant intends to initiate the grievance procedures. With respect to other recipient employees, the Department notes that the final regulations require employees who are not confidential employees to notify the Title IX Coordinator of any information they have about conduct that reasonably may constitute sex discrimination under Title IX, or, as applicable, to provide a potential complainant with contact information for the Title IX Coordinator and information about how to report sex discrimination under Title IX. See § 106.44(c). Therefore, a potential complainant who wants confidential support has the discretion to seek out a confidential employee, if provided by the recipient. Even if the information a potential complainant provides to a non-confidential employee is reported to the Title IX Coordinator, it will only prompt a complaint without the complainant's permission if the Title IX Coordinator determines, after considering at a minimum the factors in § 106.44(f)(1)(v), that the conduct as alleged presents an imminent and serious threat to the health or safety of the potential complainant or other person or prevents the recipient from ensuring equal access based on sex to its education program or activity. The question of whether a conversation with a recipient employee who is not the Title IX Coordinator will constitute a “request to the recipient” is addressed in the discussions of § 106.44(a) and (c). Changes: As noted earlier in this section, the final regulations at § 106.2 define “complaint” as an oral or written request to the recipient that objectively can be understood as a request to investigate and make a determination about alleged discrimination under Title IX and this part. Effect on Recipients Comments: Some commenters suggested that the proposed regulations should require neither “oral” nor “written” complaints and instead should give a recipient discretion as to the format of complaints it will accept under its own policies, which may include written confirmation from the complainant that they intend to proceed with grievance procedures. One commenter said that it was unclear whether the proposed regulations would require a recipient to accept an oral complaint or whether a recipient can require a written complaint. Some commenters asserted that the investigation of “informal” complaints is expensive and takes time away from classroom instruction, and that, for example, these costs outweigh the value of giving women equal education opportunity. One commenter asserted that the proposed definition would unreasonably increase the number of complaints and impede the ability of a recipient to address allegations expeditiously. A group of commenters posited that the proposed definition of “complaint” could increase litigation risks for recipients. For example, they said if a complainant talks to a professor about misconduct they experienced and the professor fails to notify the Title IX Coordinator or document that the conversation occurred, and the complainant says they made a complaint but the respondent says there is no evidence of a complaint, the recipient could face legal challenges from both parties. Some commenters explained that complaints should have to be written and signed as protection for the recipient, saying, for example, that a formal signed complaint requirement can provide cover to a recipient when a complainant did not clearly request initiation of the grievance procedures and later alleged that their oral report should have been treated as a complaint. One commenter asked the Department to confirm that under § 106.47, OCR will not deem a recipient to have violated Title IX solely because it would have reached a different determination under § 106.45, including the recipient's determination whether allegations constitute a “complaint” under § 106.2. One commenter asserted that it is unclear what would trigger the initiation of the grievance procedures and that a recipient may have thousands of employees and a decentralized organizational structure, such that they encourage or authorize employees to respond partially or fully to perceived sex discrimination in the moment. The commenter recommended that the Department take a practical approach regarding what constitutes a complaint to preserve flexibility and allow significant discretion. Discussion: The Department appreciates the variety of perspectives shared by commenters and has carefully considered the possible effects on recipients of allowing complaints to be made orally or in writing. The Department does not think it is appropriate to grant recipients the discretion to deny a complaint because it was not submitted in writing. The goal of the revised definition of “complaint” is to provide added flexibility to the complaint process for complainants, a revision the Department adopted in response to concerns from stakeholders and commenters that the formal complaint requirements of the 2020 amendments were overly prescriptive, including the requirement that a complaint be in the form of a signed document, allowed recipients to disregard complaints based on technicalities, and discouraged complaints, contrary to the purpose and intent of Title IX. In addition, the Department does not agree with the contention that the costs of investigating “informal” complaints outweigh the benefits of the final regulations, including the value of providing equal educational opportunities for all individuals based on sex, or with the assertion that removing the formal complaint requirement will lead to an unreasonable increase in the number of complaints and a delay in addressing the allegations expeditiously. Under Title IX, a recipient is obligated to evaluate conduct that reasonably may constitute discrimination on the basis of sex and ensure redress if it occurs because Congress required the provision of equal opportunity to anyone who wants to participate in a federally funded education program or activity. While it is likely that the overall number of sex discrimination complaints will increase somewhat once complaints no longer have to be in writing and signed, any increased burden will not be unreasonable for a number of reasons. First, encouraging reporting and facilitating complaints of sex discrimination is a critical part of a recipient's duty to effectuate Title IX's nondiscrimination mandate. As a condition of receiving Federal funds, a recipient agrees to operate its education program or activity free from sex discrimination; doing so requires knowing about possible discrimination and investigating it to determine the need for remedy, if any. Second, a recipient already has an obligation to address sex discrimination in its education program or activity, even without a formal complaint, see § 106.31, and under the 2020 amendments a recipient with actual knowledge of possible sexual harassment (which can come from oral reports) is required to offer supportive measures to a complainant, with or without a formal complaint, see 34 CFR 106.44(a). Third, even if there are more complaints overall, increased flexibility in the grievance procedures provided by § 106.45, and if applicable § 106.46, will help ensure that burdens on recipients are not unreasonable. For more information regarding the changes to the grievance procedures requirements, see the discussion of Framework for Grievance Procedures for Complaints of Sex Discrimination (Section II.C) and discussion of the Grievance Procedures for the Prompt and Equitable Resolution of Complaints of Sex Discrimination (Section II.D). Fourth, allowing some flexibility regarding how to make a complaint does not mean that people who have not experienced sex-based harassment or other sex discrimination will make complaints; rather, it means that those who believe they have experienced sex-based discrimination have an additional option to report it. The Department is not aware of evidence to suggest that oral complaints are more likely to be unmeritorious or even frivolous. If everyone who experienced sex discrimination did make a complaint, that would likely make it easier for recipients to redress that discrimination and prevent its recurrence. After careful consideration, the Department has decided that the benefit of improving flexibility regarding how individuals may make a complaint justifies the possibility that the number of complaints may increase. A more detailed discussion and analysis of the costs and benefits of these final regulations is included in the Regulatory Impact Analysis. The Department acknowledges recipients' concerns that oral complaints will lead to increased litigation, but these concerns are speculative and the risk of increased litigation, if any, is justified because, as explained in greater detail above, mandating that complaints be made in writing discourages individuals from making complaints, in contravention of the purpose of Title IX to eliminate all discrimination on the basis of sex in any education program or activity receiving Federal financial assistance. 20 U.S.C. 1681(a); 34 CFR 106.1. While it might be helpful for employees other than the Title IX Coordinator, such as professors, to keep careful notes or commit oral allegations to writing, the Department declines to require that they do so or to mandate that all employees receive specific training on recordkeeping as explained more fully in the discussion of § 106.8(d). These final regulations at § 106.8(f) already contain specific recordkeeping requirements for each complaint of sex discrimination and each notification the Title IX Coordinator receives of information about conduct that reasonably may constitute sex discrimination. The Department wishes to clarify that § 106.47 applies only to determinations regarding whether sex-based harassment occurred under § 106.45, and if applicable § 106.46. It provides that the Assistant Secretary will not deem a recipient to have violated the regulations solely because the Assistant Secretary would have made a different determination than the recipient did under § 106.45, and if applicable § 106.46, based on an independent weighing of the evidence in a particular complaint alleging sex-based harassment. The Department maintains the position taken in the 2020 amendments that the intent of § 106.47 (then numbered § 106.44(b)(2)) is to convey that OCR will not substitute its judgment for the judgment of the recipient's decisionmaker regarding the weighing of relevant and not otherwise impermissible evidence in a particular case. See 85 FR 30221. However, nothing in § 106.47 prevents OCR from holding a recipient accountable for noncompliance with any provision of the final regulations, including its determination whether a complainant's communication with the recipient constitutes a complaint under the definition in § 106.2. Finally, a recipient would only be required to initiate grievance procedures consistent with § 106.45 when a written or oral report meets the standards for a “complaint” in § 106.2. Thus, while the Department understands commenters' concern that § 106.45 might impede the ability of employees to address conduct in a timely manner or exercise judgment, the Department has determined that the structure of the grievance procedures under the final regulations provides a workable framework that addresses those concerns and allows a recipient to develop and implement a process for prompt and equitable response. Changes: None. 4. Section 106.2 Definition of “Disciplinary Sanctions” Comments: Several commenters suggested modifications to the definition of “disciplinary sanctions.” One commenter asked the Department to modify the definition to clarify that it is not intended to prevent a recipient from considering a respondent's cumulative conduct history when imposing sanctions. Another commenter requested that the Department remove the term “disciplinary” and use only “sanctions” because “disciplinary sanctions” suggests sanctions are limited to students and employees and may be misunderstood to exclude third parties. One commenter requested that the Department clarify whether there are specific requirements for disciplinary sanctions that apply to elementary schools and secondary schools. Discussion: The Department appreciates commenters' suggestions regarding modifications to the definition of “disciplinary sanctions.” The definition of “disciplinary sanctions” clarifies that a disciplinary sanction is a consequence imposed on a respondent only after a determination that the respondent has violated the recipient's prohibition on sex discrimination. It does not specify what consequences a recipient can or must impose on a respondent or what factors to consider when determining what disciplinary sanction to impose. As the Department explained in the 2020 amendments, the Department has determined that administrative enforcement of Title IX does not require overriding a recipient's discretion to make decisions regarding disciplinary sanctions or prescribing how a recipient should determine a disciplinary sanction. See 85 FR 30274. The definition of “disciplinary sanctions” focuses on ensuring that respondents are not disciplined for engaging in sex discrimination unless a fair process has determined responsibility, while respecting a recipient's discretion to make disciplinary decisions under their own policies and codes of conduct. For these reasons, the Department declines to modify the definition of “disciplinary sanctions” to state that it is not intended to prevent a recipient from considering a respondent's cumulative conduct history when imposing sanctions. The Department also declines to remove the term “disciplinary” from “disciplinary sanctions.” The regulations use “disciplinary sanctions” because of the disciplinary nature of the action taken by the recipient, and the Department has determined that this phrase is more specific and accurate than the word “sanctions.” The definition of “respondent” in these final regulations, and the related discussion of the definition of “respondent” in the July 2022 NPRM, make clear that any person, including third parties, may be considered a respondent subject to disciplinary sanctions. 87 FR 41420. For more information, see the discussion in the preamble to the 2020 amendments, 85 FR 30488. A recent Federal appellate decision in Hall v. Millersville University supports the Department's position that a “respondent” may include a third party. 22 F.4th 397, 405-06 (3d Cir. 2022) (finding that the university could be liable under Title IX for its deliberate indifference to a non-student's conduct). Finally, the Department's definition of “disciplinary sanctions” applies to all recipients, including elementary schools and secondary schools, and does not set forth specific requirements for disciplinary sanctions at any level. The process for imposing disciplinary sanctions—for all recipients—is set forth in more detail in § 106.45(h). The Department appreciates the opportunity to clarify that “disciplinary sanctions” refers to consequences imposed on a respondent following a determination under Title IX that the respondent violated the recipient's prohibition on sex discrimination. Nothing in these regulations addresses conduct that does not reasonably constitute sex discrimination. For this reason, the Department has added “under Title IX” to the definition of “disciplinary sanctions” in the final regulations. These regulations also do not preclude routine classroom management or the application of separate codes of conduct, including to conduct that has been determined through grievance procedures not to be sex discrimination or to conduct that would be prohibited regardless of whether sex discrimination occurred. See, e.g., 85 FR 30182. Changes: The Department has added “under Title IX” to the definition of “disciplinary sanctions.” 5. Section 106.2 Definitions of “Elementary School” and “Secondary School” Comments: Commenters generally supported the proposed definitions of “elementary school” and “secondary school” and said the definitions would clarify Title IX's coverage and aid in consistent and effective enforcement of Title IX. Discussion: The Department acknowledges commenters' support for the proposed definitions of “elementary school” and “secondary school.” Changes: None. 6. Section 106.2 Definition of “Postsecondary Institution” Comments: Some commenters generally supported the proposed definition of “postsecondary institution” and said it would aid in consistent and effective enforcement of Title IX. Other commenters, without specifying how or providing additional details, stated that they believed the proposed definition contained unnecessary details and was an attempt to micromanage and create an extrajudicial system. One commenter asked the Department to clarify whether the term “postsecondary institution” means that the proposed regulations do not apply to elementary schools and secondary schools. Discussion: The Department acknowledges commenters' support for the definition of “postsecondary institution.” The Department disagrees with the commenters' view that the definition is too detailed. The Department's revisions help streamline and simplify the definition. As explained in the July 2022 NPRM, the Department proposed to remove the specific references to § [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2024-07915. Public record. Not legal advice.