PART 106—NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE
1. The authority citation for part 106 continues to read as follows:
AuthorityAUTHORITY: 20 U.S.C. 1681 et seq., unless otherwise noted.
2. Section 106.1 is revised to read as follows:
106.1 Purpose.
The purpose of this part is to effectuate Title IX, which is designed to eliminate (with certain exceptions) discrimination on the basis of sex in any education program or activity receiving Federal financial assistance, whether or not such program or activity is offered or sponsored by an educational institution as defined in this part. This part is also intended to effectuate section 844 of the Education Amendments of 1974, PublicPub. LawL. 93-380, 88 Stat. 484.
3. Section 106.2 is revised to read as follows:
106.2 Definitions.
As used in this part, the term:
Administrative law judge means a person appointed by the reviewing authority to preside over a hearing held under § 106.81.
Administratively separate unit means a school, department, or college of an educational institution (other than a local educational agency), admission to which is independent of admission to any other component of such institution.
Admission means selection for part-time, full-time, special, associate, transfer, exchange, or any other enrollment, membership, or matriculation in or at an education program or activity operated by a recipient.
Applicant, as used in the definition of educational institution in this section and as used in
§ 106.4, means one who submits an application, request, or plan required to be approved by a Department official, or by a recipient, as a condition to becoming a recipient.
Assistant Secretary means the Assistant Secretary for Civil Rights of the Department.
Complainant means: (1) Aa student or employee who is alleged to have been subjected to conduct that could constitute sex discrimination under Title IX or this part; or (2) Aa person other than a student or employee who is alleged to have been subjected to conduct that could constitute sex discrimination under Title IX or this part and who was participating or attempting to participate in the recipient’s education program or activity atwhen the time of the alleged sex discrimination occurred.
Complaint means an oral or written request to the recipient thatto objectivelyinitiate can be understood as a request for the recipient’s togrievance investigateprocedures andas makedescribed ain determination§ about106.45, allegedand discriminationif underapplicable Title§ IX or this part106.46.
Confidential employee means: (1) Anan employee of a recipient whose communications are privileged or confidential under Federal or State law. Theassociated employee’s confidential status, for purposes of this part, is only with respecttheir torole informationor receivedduties whilefor the employee is functioning within the scope of their duties to which privilege or confidentiality appliesinstitution; (2) Anan employee of a recipient whom the recipient has designated as a confidential underresource this part for the purpose of providing services to persons relatedin toconnection with sex discrimination.—but Ifif the employee also has a role or duty not associated with providing thosethese services, the employee’s confidential status isas onlyconfidential withis respectlimited to information received about sex discrimination in connection with providing thosethese services; or (3) Anan employee of a postsecondary institution who is conducting an Institutional Review Board-approved human-subjects research study designed to gather information about sex discrimination—but the employee’s confidential status is onlylimited with respect to information received while conducting the study.
Department means the Department of Education.
Disciplinary sanctions means consequences imposed on a respondent following a determination under Title IX that the respondent violated the recipient’s prohibition on sex discrimination.
Educational institution means a local educational agency (LEA) as defined by section 8101 of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act (20 U.S.C. 7801(30)), a preschool, a private elementary or secondary school, or an applicant or recipient that is an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, or an institution of vocational education.
Elementary school means elementary school as defined by section 8101 of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act (20 U.S.C. 7801(19)), and a public or private preschool.
Federal financial assistance means any of the following, when authorized or extended under a law administered by the Department:
(1) A grant or loan of Federal financial assistance, including funds made available for:
(i) The acquisition, construction, renovation, restoration, or repair of a building or facility or any portion thereof; and
(ii) Scholarships, loans, grants, wages, or other funds extended to any entity for payment to or on behalf of students admitted to that entity, or extended directly to such students for payment to that entity.
(2) A grant of Federal real or personal property or any interest therein, including surplus property, and the proceeds of the sale or transfer of such property, if the Federal share of the fair market value of the property is not, upon such sale or transfer, properly accounted for to the Federal Government.
(3) Provision of the services of Federal personnel.
(4) Sale or lease of Federal property or any interest therein at nominal consideration, or at
consideration reduced for the purpose of assisting the recipient or in recognition of public interest to be served thereby, or permission to use Federal property or any interest therein without consideration.
(5) Any other contract, agreement, or arrangement which has as one of its purposes the provision of assistance to any education program or activity, except a contract of insurance or guaranty.
Institution of graduate higher education means an institution which:
(1) Offers academic study beyond the bachelor of arts or bachelor of science degree, whether or not leading to a certificate of any higher degree in the liberal arts and sciences; or
(2) Awards any degree in a professional field beyond the first professional degree (regardless of whether the first professional degree in such field is awarded by an institution of undergraduate higher education or professional education); or
(3) Awards no degree and offers no further academic study, but operates ordinarily for the purpose of facilitating research by persons who have received the highest graduate degree in any field of study.
Institution of professional education means an institution (except any institution of undergraduate higher education) which offers a program of academic study that leads to a first professional degree in a field for which there is a national specialized accrediting agency recognized by the Secretary.
Institution of undergraduate higher education means:
(1) An institution offering at least two but less than four years of college level study beyond the high school level, leading to a diploma or an associate degree, or wholly or principally creditable toward a baccalaureate degree; or
(2) An institution offering academic study leading to a baccalaureate degree; or
(3) An agency or body which certifies credentials or offers degrees, but which may or may not offer academic study.
Institution of professional education means an institution (except any institution of
undergraduate higher education) which offers a program of academic study that leads to a first professional degree in a field for which there is a national specialized accrediting agency recognized by the Secretary.
Institution of vocational education means a school or institution (except an institution of professional or graduate or undergraduate higher education) which has as its primary purpose preparation of students to pursue a technical, skilled, or semiskilled occupation or trade, or to pursue study in a technical field, whether or not the school or institution offers certificates, diplomas, or degrees and whether or not it offers fulltime study.
Parental status, as used in §§ 106.21(c)(2)(i), 106.37(a)(3), 106.40(a), and 106.57(a)(1), means the status of a person who, with respect to another person who is under the age of 18 or who is 18 or older but is incapable of self-care because of a physical or mental disability, is:
(1) A biological parent;
(2) An adoptive parent;
(3) A foster parent;
(4) A stepparent;
(5) A legal custodian or guardian;
(6) In loco parentis with respect to such a person; or
(7) Actively seeking legal custody, guardianship, visitation, or adoption of such a person.
Party means a complainant or respondent.
Peer retaliation means retaliation by a student against another student.
Postsecondary institution means an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, or an institution of vocational education that serves postsecondary school students.
Pregnancy or related conditions means:
(1) Pregnancy, childbirth, termination of pregnancy, or lactation;
(2) Medical conditions related to pregnancy, childbirth, termination of pregnancy, or lactation; or
(3) Recovery from pregnancy, childbirth, termination of pregnancy, lactation, or their related medical conditions.
Program or activity and program means all of the operations of— –
(1) (i) A department, agency, special purpose district, or other instrumentality of a State or local government; or
(ii) The entity of a State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
(2) (i) A college, university, or other postsecondary institution, or a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 8801), system of vocational education, or other school system;
(3) (i) An entire corporation, partnership, other private organization, or an entire sole proprietorship— -
(A) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or
(ii) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private
organization, or sole proprietorship; or
(4) Any other entity that is established by two or more of the entities described in paragraph (1), (2), or (3) of this definition, any part of which is extended Federal financial assistance.
Recipient means any State or political subdivision thereof, or any instrumentality of a State or political subdivision thereof, any public or private agency, institution, or organization, or other entity, or any person, to whom Federal financial assistance is extended directly or through another recipient and which operates an education program or activity which receives such assistance, including any subunit, successor, assignee, or transferee thereof.
Relevant means related to the allegations of sex discrimination under investigation as part of the grievance procedures under § 106.45, and if applicable § 106.46. Questions are relevant when they seek evidence that may aid in showing whether the alleged sex discrimination occurred, and evidence is relevant when it may aid a decisionmaker in determining whether the alleged sex discrimination occurred.
Remedies means measures provided, as appropriate, to a complainant or any other person the recipient identifies as having had their equal access to the recipient’s education program or activity limited or denied by sex discrimination. These measures are provided to restore or preserve that person’s access to the recipient’s education program or activity after a recipient determines that sex discrimination occurred.
Respondent means a person who is alleged to have violated the recipient’s prohibition on sex discrimination.
Retaliation means intimidation, threats, coercion, or discrimination against any person by the recipient, a student, or an employee, or other person authorized by the recipient to provide aid, benefit, or service under
the recipient’s education program or activity, or recipient for the purpose of interfering with any right or privilege secured by Title IX or this part, or because the person has reported information, made a complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this part, including in an informal resolution process under § 106.44(k), in grievance procedures under § 106.45, and if applicable § 106.46, and in any other actionsappropriate steps taken by a recipient in response to sex discrimination under § 106.44(f)(16).
Nothing in this definition or this part precludes a recipient from requiring an employee or other person authorized by a recipient to provide aid, benefit, or service under the recipient’s education program or activity to participate as a witness in, or otherwise assist with, an investigation, proceeding, or hearing under this part.
Reviewing authorityAuthority means that component of the Department delegated authority by the Secretary to appoint, and to review the decisions of, administrative law judges in cases arising under this part.
Secondary school means secondary school as defined by section 8101 of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act (20 U.S.C. 7801(45)), and an institution of vocational education that serves secondary school students.
Secretary means the Secretary of Education.
Sex-based harassment prohibited by this part ismeans asexual formharassment, ofharassment sexon discriminationthe andbases meansdescribed sexualin harassment§ 106.10, and other harassmentconduct on the basis of sex, including on the bases described in § 106.10, that is:
(1) Quid pro quo harassment. An employee, agent, or other person authorized by the recipient to provide an aid, benefit, or service under the recipient’s education program or activity explicitly or impliedly conditioning the provision of such an aid, benefit, or service on a person’s participation in unwelcome sexual conduct;
(2) Hostile environment harassment. Unwelcome sex-based conduct that is sufficiently severe or pervasive, that, based on the totality of the circumstances, isand evaluated subjectively
and objectively, offensivedenies and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity (i.e., creates a hostile environment). Whether a hostile environment has been created is a fact-specific inquiry that includes consideration of the following:
(i) The degree to which the conduct affected the complainant’s ability to access the recipient’s education program or activity;
(ii) The type, frequency, and duration of the conduct;
(iii) The parties’ ages, roles within the recipient’s education program or activity, previous interactions, and other factors about each party that may be relevant to evaluating the effects of the alleged unwelcome conduct;
(iv) The location of the conduct, and the context in which the conduct occurred, and the control the recipient has over the respondent; and
(v) Other sex-based harassment in the recipient’s education program or activity;.
or
(3) Specific offensesOffenses. (i) Sexual assault meaning an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation;
(ii) Dating violence meaning violence committed by a person: (A)who Who is or has been in a social relationship of a romantic or intimate nature with the victim;
and
(B) Where the existence of such a relationship shall be determined based on a consideration of the following factors:
(1) The length of the relationship;
(2) The type of relationship; and
(3) The frequency of interaction between the persons involved in the relationship;
(iii) Domestic violence meaning felony or misdemeanor crimes of violence committed by a person who:
(A) Is a current or former spouse or intimate partner of the victim under the family or domestic violence laws of the jurisdiction of the recipient, or a person similarly situated to a spouse of the victim;
(B) Is cohabitating, or has cohabitated, with the victim as a spouse or intimate partner;
(C) Shares a child in common with the victim; or
(D) Commits acts against a youth or adult victim who is protected from those acts under the family or domestic violence laws of the jurisdiction; or
(iv) Stalking meaning engaging in a course of conduct directed at a specific person that would cause a reasonable person to:
(A) Fear for the person’s safety or the safety of others; or
(B) Suffer substantial emotional distress.
Note 1 to the definition of sex-based harassment: The Assistant Secretary will not require a recipient to adopt a particular definition of consent, where that term is applicable with respect to sex-based harassment.
Student means a person who has gained admission.
Student with a disability means a student who is an individual with a disability as defined in the Rehabilitation Act of 1973, as amended, 29 U.S.C. 705(9)(B), (20)(B), or a child with a disability as defined in the Individuals with Disabilities Education Act, 20 U.S.C. 1401(3).
Supportive measures means non-disciplinary, non-punitive individualized measures offered as appropriate, as reasonably available, without unreasonably burdening a complainant or respondentparty, not for punitive or disciplinary reasons, and without fee or charge to the complainant or respondent to: (1i) Restorerestore or preserve that party’s access to the recipient’s education program or activity, including temporary measures that burden a respondent imposed for non-punitive and non-disciplinary reasons and that are designed to protect the safety of the partiescomplainant or the recipient’s educational environment, or deter the respondent from engaging in sex-based harassment; or (2ii) Provideprovide support during the recipient’s grievance procedures under § 106.45, and if applicable § 106.46, or during the informal resolution process under § 106.44(k).
Title IX means Title IX of the Education Amendments of 1972 (Pub. L. 92-318; 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688, 1689), as amended.
§ 106.3 [Amended]
4. Section 106.3 is amended by removing paragraphs (c) and (d).
5. Section 106.6 is amended by:
a. Revising paragraphs (b), (e), and (g).
b. Removing paragraph (h).
The revisions read as follows:
106.68 EffectDesignation of othercoordinator, requirementsadoption and preservationpublication of rights.nondiscrimination *policy * * * *
(b) Effect of State or local law or other requirements. The obligation to comply with Title IX and this part is not obviated or alleviated by any State or local law or other requirement that conflicts with Title IX or this part.
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(e) Effect of Section 444 of General Education Provisions Act (GEPA)/Family Educational Rights and Privacy Act (FERPA). The obligation to comply with Title IX and this part is not obviated or alleviated by FERPA, 20 U.S.C. 1232g, or its implementing regulations, 34 CFR part 99.
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(g) Exercise of rights by parents, guardians, or other authorized legal representatives. Nothing in Title IX or this part may be read in derogation of any legal right of a parent, guardian, or other authorized legal representative to act on behalf of a complainant, respondent, or other person, subject to paragraph (e) of this section, including but not limited to making a complaint through the recipient’s grievance procedures, for complaints of sex discrimination.
6. Section 106.8 is revised to read as follows:
§ 106.8 Designation of coordinator; nondiscrimination policy; grievance procedures; notice of nondiscrimination;, training;, students with disabilities; and recordkeeping.
(a) Designation of a Title IX Coordinator.
(1) Title IX Coordinator. Each recipient must designate and authorize at least one employee, referred to herein as athe Title IX Coordinator, to coordinate its efforts to comply with its responsibilities under Title IX and this part.
If(2) aDelegation recipientto hasdesignees. moreAs thanappropriate, onethe Titlerecipient IXmay Coordinator,assign it must designate one ofor itsmore Titledesignees IX Coordinators to retaincarry ultimateout oversightsome overof those responsibilities and ensure the recipient’s consistentresponsibilities for compliance with its responsibilities under Title IX and this part.
(2) Delegation to designees. As appropriate, abut recipientone may delegate, or permit a Title IX Coordinator tomust delegate,retain specificultimate dutiesoversight toover onethose or more designeesresponsibilities.
(b) Adoption, publication, and implementationpublication of nondiscrimination policy and grievance procedures.
(1) Nondiscrimination policy. Each recipient must adopt, publish, and implementpublish a policy stating that the recipient does not discriminate on the basis of sex and prohibits sex discrimination in any education program or activity that it operates, as required by Title IX and this part, including in admission (unless subpart C of this part does not apply) and employment.
(2) Grievance procedures. A recipient must adopt, publish, and implementpublish grievance procedures consistent with the requirements of § 106.45, and if applicable § 106.46, that provide for the prompt and equitable resolution of complaints made by students, employees, or otherthird individualsparties who
are participating or attempting to participate in the recipient’s education program or activity, or by the Title IX Coordinator, alleging any action that would be prohibited by Title IX orand this part.
(c) Notice of nondiscrimination. A recipient must provide a notice of nondiscrimination to students; parents, guardians, or other authorized legal representatives of elementary school and secondary school students; employees; applicants for admission and employment; and all unions and professional organizations holding collective bargaining or professional agreements with the recipient.
(1) Contents of notice of nondiscrimination. (i) The notice of nondiscrimination must include the following elements:
(Ai) A statement that the recipient does not discriminate on the basis of sex and prohibits sex discrimination in any education program or activity that it operates, as required by Title IX and this part, including in admission (unless subpart C of this part does not apply) and employment;
(Bii) A statement that inquiries about the application of Title IX and this part to the recipient may be referred to the recipient’s Title IX Coordinator, to the Office for Civil Rights, or to both;
(Ciii) The name or title, office address, email address, and telephone number of the recipient’s Title IX Coordinator;
(Div) How to locate the recipient’s nondiscrimination policy under paragraph (b)(1) of this section; and
the recipient’s grievance procedures under paragraph (bv)(2) of this section; and
(E) How to report information about conduct that may constitute sex discrimination under Title IX;, and how to make a complaint of sex discrimination under this part., (ii)and Nothinghow into thislocate partthe
prevents a recipient’s fromgrievance includingprocedures inunder itsparagraph(b)(2) notice of nondiscriminationthis informationsection, about§ any106.45, exceptionsand orif exemptions applicable to§ the recipient under Title IX106.46.
(2) Publication of notice of nondiscrimination.
(i) Each recipient must prominently include all elements of its notice of nondiscrimination set out in paragraphs (c)(1)(i)-(Av) through (E) of this section on its website and in each handbook, catalog, announcement, bulletin, and application form that it makes available to persons entitled to notice under paragraph (c) of this section, or which are otherwise used in connection with the recruitment of students or employees.
(ii) If necessary, due to the format or size of any publication under paragraph (c)(2)(i) of this section, the recipient may instead includecomply with paragraph (c)(2) of this section by including in those publications a statement that the recipient prohibits sex discrimination in any education program or activity that it operates and that individuals may report concerns or questions to the Title IX Coordinator, and provideproviding the location of the notice on the recipient’s website.
(iii) A recipient must not use or distribute a publication stating that the recipient treats applicants, students, or employees differently on the basis of sex, except as such treatment is permitted by Title IX or this part.
(d) Training. The recipient must ensure that the persons described inbelow paragraphs (d)(1) through (4) of this section receive training related to their dutiesresponsibilities underas Title IX promptly upon hiring or change of position that alters their duties under Title IX or this part, and annually thereafterfollows. This training must not rely on sex stereotypes.
(1) All employees. All employees must be trained on:
(i) The recipient’s obligation to address sex discrimination in its education program or activity;
(ii) The scope of conduct that constitutes sex discrimination under Title IX and this part, including the definition of sex-based harassment; and
(iii) All applicable notification and information requirements under §§ 106.40(b)(2) and 106.44.
(2) Investigators, decisionmakers, and other persons who are responsible for implementing the recipient’s grievance procedures or have the authority to modify or terminate supportive measures. In addition to the training requirements in paragraph (d)(1) of this section, all investigators, decisionmakers, and other persons who are responsible for implementing the recipient’s grievance procedures or have the authority to modify or terminate supportive measures under § 106.44(g)(4) must be trained on the following topics to the extent related to their responsibilities:
(i) The recipient’s obligations under § 106.44;
(ii) The recipient’s grievance procedures under § 106.45, and if applicable § 106.46;
(iii) How to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias; and
(iv) The meaning and application of the term “relevant” in relation to questions and evidence, and the types of evidence that are impermissible regardless of relevance under § 106.45, and if applicable § 106.46.
(3) Facilitators of informal resolution process. In addition to the training requirements in paragraph (d)(1) of this section, all facilitators of an informal resolution process under § 106.44(k) must be trained on the rules and practices associated with the recipient’s informal resolution process and on how to serve impartially, including by avoiding conflicts of interest and bias.
(4) Title IX Coordinator and designees. In addition to the training requirements in paragraphs (d)(1) through -(3) of this section, the Title IX Coordinator and any designees under paragraph
(a) of this section must be trained on their specific responsibilities under paragraph (a) of this section, §§§ 106.40(b)(3), § 106.44(f), and§ 106.44(g), the recipient’s recordkeeping system and the requirements of paragraph (f) of this section, and any other training necessary to coordinate the recipient’s compliance with Title IX.
(e) Students with disabilities. If a complainant or respondent is an elementary or secondary student with a disability, the recipient must require the Title IX Coordinator tomust consult with one or more members, as appropriate, of the student’s Individualized Education Program (IEP) team, 34 CFR 300.321, if any, or one or more members, as appropriate, of the group of persons responsible for the student’s placement decision under 34 CFR 104.35(c) (Section 504 team), if any, to determinehelp howensure tothat complythe recipient complies with the requirements of the Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, throughout the recipient’s implementation of grievance procedures under § 106.45, and if applicable § 106.46. If a complainant or respondent is a postsecondary student with a disability, the Title IX Coordinator may consult, as appropriate, with the individual or office that the recipient has designated to provide support to students with disabilities to determinehelp how to comply with Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794.
(f) Recordkeeping. A recipient must maintain for a period of at least seven years:
(1) For each complaint of sex discrimination, records documenting the informal resolution process under § 106.44(k) or the grievance procedures under § 106.45, and if applicable § 106.46, and the resulting outcome.
(2) For each notificationincident the Title IX Coordinator receives of information about conduct that reasonably may constitute sex discrimination under Title IX orof thiswhich part,the includingTitle notificationsIX underCoordinator §was 106.44(c)(1) or (2)notified, records documenting the actions the recipient took to meet its obligations under § 106.44.
(3) All materials used to provide training under paragraph (d) of this section. A recipient
must make these training materials publicly available on its website, or if the recipient does not maintain a website the recipient must make these materials available upon request for inspection by members of the public.
(4) All records documenting the actions the recipient took to meet its obligations under §§ 106.40 and 106.57.
7. Section 106.10 is added to subpart B to read as follows:
§106.6 Effect of other requirements and preservation of rights.
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(b) Effect of State or local law or other requirements. The obligation to comply with this part is not obviated or alleviated by any State or local law or other requirement. Nothing in this part would preempt a State or local law that does not conflict with this part and that provides greater protections against sex discrimination.
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(e) Effect of Section 444 of General Education Provisions Act (GEPA)/ Family Educational Rights and Privacy Act. The obligation to comply with this part is not obviated or alleviated by the Family Educational Rights and Privacy Act, 20 U.S.C. 1232g, or its implementing regulations, 34 CFR part 99.
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(g) Exercise of rights by parents, guardians, or other authorized legal representatives. Nothing in this part may be read in derogation of any legal right of a parent, guardian, or other authorized legal representative to act on behalf of a complainant, respondent, or other person, subject to paragraph (e) of this section, including but not limited to making a complaint through the recipient’s grievance procedures for complaints of sex discrimination.
6. Section 106.8 is revised to read as follows:
106.10 Scope.
Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.
8. Section 106.11 is revised to read as follows:
106.11 Application.
Except as provided in this subpart, this part applies to every recipient and to all sex discrimination occurring under a recipient’s education program or activity in the United States. For purposes of this section, conduct that occurs under a recipient’s education program or activity includes but is not limited to conduct that occurs in a building owned or controlled by a student organization that is officially recognized by a postsecondary institution, and conduct that is subject to the recipient’s disciplinary authority. A recipient has an obligation to address a sex-based hostile environment under its education program or activity, even whenif somesex-based conductharassment alleged to be contributing to the hostile environment occurred outside the recipient’s education program or activity or outside the United States.
9. Section 106.15 is amended by revising paragraph (b) to read as follows:
106.15 Admissions.
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(b) Administratively separate units. For purposes only of this section and subpart C, each administratively separate unit shall be deemed to be an educational institution.
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§ 106.16 [Removed]
10. Section 106.16 is removed.
§ 106.17 [Removed]
11. Section 106.17 is removed.
§ 106.18 [Redesignated as § 106.16]
12. Section 106.18 is redesignated as §section 106.16 in subpart B.
13. Section 106.21 is amended by revising paragraphs (a) and (c) to read as follows:
106.21 Admissions.
(a) Status generally. No person shall, on the basis of sex, be denied admission, or be subjected to discrimination in admission, by any recipient to which this subpart applies.
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(c) Parental, family, or marital status; pregnancy or related conditions. In determining whether a person satisfies any policy or criterion for admission, or in making any offer of admission, a recipient to which this subpart applies:
(1) Must treat pregnancy or related conditions or any temporary disability resulting therefrom in the same manner and under the same policies as any other temporary medicaldisability conditionsor physical condition; and
(2) Must not:
(i) Adopt or implementapply any policy, practice, or procedure concerning the current, potential, or past parental, family, or marital status of a student or applicant that treats persons differently on the basis of sex;
(ii) Discriminate against any person on the basis of current, potential, or past pregnancy or related conditions, or adoptestablish or implementfollow any policy, practice, or procedure that so discriminates; and
(iii) Make a pre-admission inquiry as to the marital status of an applicant for admission,
including whether such applicant is “Miss or Mrs.” A recipient may ask an applicant to self-identify their sex, but only if this question is asked of all applicants and if the response is not used as a basis for discrimination prohibited by this part.
§ 106.30 [Removed]
14. Section 106.30 is removed.
15. Section 106.31 is amended by revising paragraph (a) to read as follows:
106.31 Education programs or activities.
(a) General.
(1) Except as provided elsewhere in this part, no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any academic, extracurricular, research, occupational training, or other education program or activity operated by a recipient that receives Federal financial assistance.
(2) In the limited circumstances in which Title IX or this part permits different treatment or separation on the basis of sex, a recipient must not carry out such different treatment or separation in a manner that discriminates on the basis of sex by subjecting a person to more than de minimis harm, exceptunless asotherwise permitted by 20Title U.S.C.IX 1681(a)(1) through (9) and the corresponding regulations §§ 106.12 through 106.15, 20 U.S.C. 1686 and its corresponding regulation § 106.32(b)(1), or §this 106part.41(b). Adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with the person’s gender identity subjects a person to more than de minimis harm on the basis of sex.
(3) This subpart does not apply to actions of a recipient in connection with admission of its students to an education program or activity of: (i) Aa recipient to which subpart C does not apply;, or (ii) Anan entity, not a recipient, to which subpart C would not apply if the entity were a recipient.
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16. Section 106.40 is revised to read as follows:
106.40 Parental, family, or marital status; pregnancy or related conditions.
(a) Status generally. A recipient must not adopt or implementapply any policy, practice, or procedure concerning a student’s current, potential, or past parental, family, or marital status that treats students differently on the basis of sex.
(b) Pregnancy or related conditions.
(1) Nondiscrimination. A recipient must not discriminate in its education program or activity against any student based on the student’s current, potential, or past pregnancy or related conditions. A recipient doesmay notpermit engage in prohibited discrimination when it allows a student, based on pregnancy or related conditions, to participate voluntarily participate in a separate portion of its education program or activity provided the recipient ensures that the separate portion is comparable to that offered to students who are not pregnant and do not have related conditions.
(2) ResponsibilityRequirement for recipient to provide Title IX Coordinator contact and other information. A recipient must ensure that when any employee is informed of a student,’s pregnancy or related conditions by the student or a person who has a legal right to act on behalf of the student, informsthe any employee ofpromptly theinforms student’sthat pregnancyperson orof relatedhow conditions, unless the employeeperson reasonablymay believesnotify that the Title IX Coordinator hasof been notified, the employeestudent’s promptlypregnancy providesor thatrelated personconditions withfor theassistance Titleand IXprovides Coordinator’s contact information andfor informs
that person that the Title IX Coordinator, canunless coordinatethe specificemployee actionsreasonably tobelieves prevent sex discrimination and ensure the student’sTitle equalIX accessCoordinator tohas thealready recipient’sbeen education program or activitynotified.
(3) Specific actions to prevent discrimination and ensure equal access. AOnce recipienta must take specific actions under paragraphs (b)(3)(i) through (vi) of this section to promptly and effectively prevent sex discrimination and ensure equal access to the recipient’s education program or activity once the student, or a person who has a legal right to act on behalf of the student, notifies the Title IX Coordinator of the student’s pregnancy or related conditions., Thethe Title IX Coordinator must coordinatepromptly:
these actions.
(i) ResponsibilityInform to provide information about recipient obligations. The recipient must inform the student, and if applicable, the person who notified the Title IX Coordinator,
of the studentrecipient’s pregnancyobligations orto:
related(A) conditionsProhibit andsex hasdiscrimination aunder legalthis rightpart, toincluding actsex-based onharassment;
behalf(B) ofProvide the student, ofwith the recipient’soption obligationsof underreasonable paragraphsmodifications (b)(1)to throughthe (5)recipient’s ofpolicies, thispractices, sectionor andprocedures §because 106.44(j)of andpregnancy provideor therelated recipient’sconditions, notice of nondiscrimination under §paragraphs 106.8(cb)(13).
(ii) Reasonableand modifications. (Ab)(4) Theof recipientthis mustsection;
make(C) reasonableAllow modificationsaccess, toon thea recipient’svoluntary policiesbasis, practices, or procedures as necessary to preventany sexseparate discrimination and ensurecomparable equalportion accessof to the recipient’s education program or activity. Each reasonable modification must be based on the student’s individualized needs. In determining what modifications are required under this paragraph, the(b)(1) recipientof mustthis consultsection;
with(D) theAllow student. A modification that a recipientvoluntary canleave demonstrateof wouldabsence fundamentallyunder alterparagraph the(b)(3)(iii) nature of itsthis educationsection;
program or activity is not a reasonable modification.
(BE) TheEnsure student has discretion to accept or decline each reasonable modification offered by the recipient.availability Ifof alactation studentspace acceptsunder aparagraph recipient’s(b)(3)(iv) offeredof reasonablethis modification,section; theand
recipient
must implement it.
(CF) ReasonableMaintain modificationsgrievance mayprocedures include,that butprovide arefor notthe limitedprompt to,and breaksequitable duringresolution classof tocomplaints expressof breastsex milkdiscrimination, breastfeed,including orsex-based attend to health needs associated with pregnancy or related conditionsharassment, includingunder eating,§ drinking106.45, or using the restroom; intermittent absences to attend medical appointments; access to online or homebound education; changes in schedule or course sequence; extensions of time for coursework and reschedulingif ofapplicable tests§ and106.46.
examinations;(ii) allowingProvide athe student towith sitvoluntary orreasonable stand,modifications or carry or keep water nearby; counseling; changes in physical space or supplies (for example, access to athe largerrecipient’s desk or a footrest); elevator access; or other changes to policies, practices, or procedures. (iii)because Voluntary access to separate and comparable portion of programpregnancy or activity.related Theconditions, recipient must allow the student to voluntarily access any separate and comparable portion of the recipient’s education program or activity under paragraph (b)(14) of this section.
(iviii) VoluntaryAllow leaves of absence. The recipient must allow the student toa voluntarilyvoluntary take a leave of absence from the recipient’s education program or activity to cover, at minimum, the period of time deemed medically necessary by the student’s physician or other licensed healthcare provider. To the extent that a studentrecipient qualifiesmaintains for leave under a leave policy maintainedfor bystudents a recipient that allows a greater period of time than the medically necessary period, the recipient must permit the student to take voluntary leave under that policy instead if the student so chooses. WhenUpon the student’s returnsreturn to the recipient’s education program or activity, the student must be reinstated to the academic status and, as practicable, to the extracurricular status
that the student held when the voluntary leave began.
(viv) LactationEnsure space. The recipient must ensure that the studentavailability canof access a lactation space, which must be a space other than a bathroom, that is clean, shielded from view, free from intrusion from others, and may be used by a student for expressing breast milk or breastfeeding as needed.
(vi4) LimitationReasonable onmodifications supportingfor documentation.students Abecause recipientof mustpregnancy notor requirerelated supportingconditions. documentationReasonable undermodifications paragraphsto (b)(3)(ii)the throughrecipient’s (v)policies, unlesspractices, theor documentationprocedures isfor necessarya andstudent reasonablebecause forof thepregnancy recipientor torelated determineconditions, thefor reasonablepurposes modificationsof tothis makesection:
or(i) whetherMust tobe takeprovided additionalon specifican actionsindividualized underand paragraphsvoluntary (b)(3)(ii)basis throughdepending (v).on Examplesthe ofstudent’s situationsneeds when requiringnecessary supportingto documentationprevent isdiscrimination notand necessaryensure andequal reasonableaccess include,to butthe arerecipient’s noteducation limitedprogram toor activity, whenunless the student’srecipient needcan fordemonstrate athat specificmaking actionthe undermodification paragraphswould (b)(3)(ii)fundamentally throughalter (v)the isrecipient’s obvious,education suchprogram asor whenactivity. A fundamental alteration is a studentchange whothat is pregnantso needssignificant athat biggerit uniform;alters when the studentessential hasnature previouslyof provided the recipient’s witheducation sufficientprogram supportingor documentationactivity;
when(ii) theMust reasonablebe modificationeffectively becauseimplemented, ofcoordinated, pregnancyand ordocumented relatedby conditionsthe atTitle issueIX isCoordinator; allowingand
a(iii) studentMay toinclude carrybut orare keepnot waterlimited nearbyto andbreaks drink,during useclass ato biggerattend deskto related health needs, sitexpressing orbreast standmilk, or takebreastfeeding; breaksintermittent absences to eat,attend drink,medical appointments; access to online or useother thehomebound restroomeducation; whenchanges thein studentschedule hasor lactationcourse needssequence; orextension whenof thetime specificfor actioncoursework underand paragraphsrescheduling (b)(3)(ii)of throughtests and examinations; counseling; changes in physical space or supplies (v)for isexample, availableaccess to studentsa forlarger reasonsdesk otheror thana pregnancyfootrest); elevator access; or relatedother conditionsappropriate withoutchanges submittingto supportingpolicies, documentationpractices, or procedures.
(45) Comparable treatment to other temporary medicaldisabilities or conditions. To the extent consistentnot withotherwise addressed in paragraph (b)(3) of this section, a recipient must treat pregnancy or
related conditions or any temporary disability resulting therefrom in the same manner and under the same policies as any other temporary medicaldisability conditionsor physical condition with respect to any medical or hospital benefit, service, plan, or policy the recipient administers, operates, offers, or participates in with respect to students admitted to the recipient’s education program or activity.
(56) Certification to participate. A recipient mustmay not require a student who is pregnant or has related conditions to provide certification from a healthcarephysician provider or any other personlicensed healthcare provider that the student is physically able to participate in the recipient’s class, program, or extracurricular activity unless:
(i) The certified level of physical ability or health is necessary for participation in the class, program, or extracurricular activity;
(ii) The recipient requires such certification of all students participating in the class, program, or extracurricular activity; and
(iii) The information obtained is not used as a basis for discrimination prohibited by this part.
§ 106.41 [Amended]
17. Section 106.41 is amended by removing paragraph (d).
18. Section 106.44 is revised to read as follows:
106.44 Recipient’sAction responseby a recipient to operate its education program or activity free from sex discrimination.
(a) General. (1) A recipient withmust knowledgetake ofprompt conductand thateffective reasonablyaction mayto constituteend any sex discrimination that has occurred in its education program or activity, mustprevent respondits promptlyrecurrence, and effectively;remedy andits (2)effects. ATo recipientensure mustthat alsoit complycan withsatisfy this sectionobligation, toa addressrecipient sexmust discriminationcomply inwith itsthis education program or activitysection.
(b) Barriers to reportingMonitoring. A recipient must:
require(1) Require its Title IX Coordinator to: (1)monitor Monitor the recipient’s education program or activity for barriers to reporting information about conduct that reasonably may constitute sex discrimination under Title IX or this part; and
(2) Take steps reasonably calculated to address such barriers.
(c) Notification requirements.
(1) An elementary school or secondary school recipient must require all of its employees who are not confidential employees to notify the Title IX Coordinator when the employee has information about conduct that reasonably may constitute sex discrimination under Title IX or this part.
(2) All other recipients must, at a minimum, require:
(i) Any employee who is not a confidential employee and who either has authority to institute corrective measures on behalf of the recipient orto notify the Title IX Coordinator when the employee has information about conduct that may constitute sex discrimination under Title IX;
(ii) Any employee who is not a confidential employee and who has responsibility for administrative leadership, teaching, or advising in the recipient’s education program or activity to notify the Title IX Coordinator when the employee has information about a student being subjected to conduct that reasonably may constitute sex discrimination under Title IX;
(iii) Any employee who is not a confidential employee and who has responsibility for administrative leadership, teaching, or thisadvising part;in the recipient’s education program or activity and has information about an employee being subjected to conduct that may constitute sex discrimination under Title IX to either:
(iiA) AllNotify otherthe employeesTitle whoIX areCoordinator notwhen confidentialthe employeesemployee andhas notinformation coveredabout byan paragraphemployee being subjected to conduct that may constitute sex discrimination under Title IX; or
(cB) Provide the contact information of the Title IX Coordinator and information about
how to report sex discrimination to any person who provides the employee with the information; and
(2iv)(i) ofAll thisother sectionemployees who are not confidential employees, if any, to either:
(A) Notify the Title IX Coordinator when the employee has information about conduct that reasonably may constitute sex discrimination under Title IX or this part; or
(B) Provide the contact information of the Title IX Coordinator and information about how to makereport a complaint of sex discrimination to any person who provides the employee with information about conduct that reasonably may constitute sex discrimination under Title IX or this part.
(3) A postsecondary institution must reasonablymake determinea andfact-specific specifyinquiry to determine whether andthe underrequirements whatof circumstancesparagraph (c)(2) of this section apply to a person who is both a student and an employee of the postsecondary institution. In making this determination, a postsecondary institution must, at a minimum, consider whether the person’s primary relationship with the postsecondary institution is subject to receive an education and whether the requirementsperson learns of paragraphconduct (c)(2)that ofmay thisconstitute sectionsex discrimination under Title IX in the postsecondary institution’s education program or activity while performing employment-related work.
(4) The requirements of paragraphs (c)(1) and (c)(2) of this section do not apply towhen anthe only employee whowith hasinformation personallyabout been subject to conduct that reasonably may constitute sex discrimination under Title IX oris thisthe partemployee-complainant.
(d) Confidential employee requirements.
(1) A recipient must notify all participants in the recipient’s education program or activity of howthe toidentity contactof its confidential employees, if any, excluding any employee whose confidential status is only with respect to their conducting an Institutional Review Board-approved human-subjects research study designed to gather information about sex discrimination as set out in the definition of confidential employee in § 106.2.
(2) A recipient must require a confidential employee to explain their confidential status to any person who informs the confidential employee of conduct that reasonably may constitute sex
discrimination under Title IX orand thismust part:provide (i)that Theperson employee’swith statuscontact asinformation confidential for purposes of this part, including the circumstancesrecipient’s inTitle whichIX theCoordinator employeeand isexplain nothow required to notifyreport theinformation Title IX Coordinator about conduct that reasonably may constitute sex discrimination; (ii)under How to contact the recipient’s Title IX Coordinator and how to make a complaint of sex discrimination; and
(iii) That the Title IX Coordinator may be able to offer and coordinate supportive measures, as well as initiate an informal resolution process or an investigation under the grievance procedures.
(e) Public awareness events. When a postsecondary institution’s Title IX Coordinator is notified of information about conduct that reasonably may constitute sex-based harassment under Title IX or this part that was provided by a person during a public event to raise awareness about sex-based harassment that was held on the postsecondary institution’s campus or through an online platform sponsored by a postsecondary institution to raise awareness about sex-based harassment associated with a postsecondary institution’s education program or activity, the postsecondary institution is not obligated to act in response to thethis information under this section, § 106.45, or § 106.46, unless itthe indicatesinformation reveals an imminentimmediate and serious threat to the health or safety of astudents complainant,or anyother students,persons employees,in orthe otherpostsecondary personsinstitution’s community. However, in all cases the postsecondary institution must use this information to inform its efforts to prevent sex-based harassment, including by providing tailored training to address alleged sex-based harassment in a particular part of its education program or activity or at a specific location when information indicates there may be multiple incidents of sex-based harassment.
Nothing in Title IX or this part obligates a postsecondary institution to require its Title IX Coordinator or any other employee to attend such public awareness events.
(f) Title IX Coordinator requirements. TheA Title IX Coordinator is responsible for coordinating the recipient’s compliancemust withrequire its obligations under Title IX andCoordinator thisto part.take (1)the Afollowing recipientsteps mustupon requirebeing its Title IX Coordinator, when notified of conduct that reasonably may constitute sex discrimination under Title IX or this part, to take the following actions to promptly and effectively end any sex discrimination in its education program or activity, prevent its recurrence, and remedy its effects:
(i1) Treat the complainant and respondent equitably;
(ii2) Offer and coordinate supportive measures under paragraph (gi) ofNotify this section, as appropriate, for the complainant. Inof addition, if the recipient has initiated grievance procedures under § 106.45, and if applicable § 106.46,; or offered an informal resolution process under paragraph (k) of this section to the respondent, offer and
coordinate supportive measures under paragraph (gii) ofIf thisa section,complaint asis appropriatemade, fornotify the respondent; (iii)(A)of Notify the complainantapplicable or, if the complainant is unknown, the individual who reported the conduct, of the grievance procedures
under § 106.45, and ifnotify applicablethe §parties 106.46,of and the informal resolution process under paragraph (k) of this section, if available and appropriate;
and
(B3) IfOffer aand complaintcoordinate issupportive made,measures notifyunder theparagraph respondent(g) of thethis grievancesection, proceduresas under § 106.45appropriate, andto ifthe applicablecomplainant §and 106.46,respondent andto therestore informalor resolutionpreserve processthat underparty’s paragraphaccess (k)to ofthe thisrecipient’s section,education ifprogram availableor and appropriateactivity;
(iv4) In response to a complaint, initiate the grievance procedures or informal resolution process under § 106.45, and if applicable § 106.46, or the informal resolution process under paragraph (k) of this section, if available and appropriate and requested by all parties;
(v5) In the absence of a complaint or the withdrawal of any or all of the allegations in a complaint, and in the absence or termination of an informal resolution process, determine whether to initiate a complaint of sex discrimination that complies with the grievance procedures under § 106.45, and if applicable § 106.46.
(A) To make this fact-specific determination, theif Titlenecessary IX Coordinator must consider, at a minimum, the following factors:
(1) The complainant’s request not to proceedaddress withconduct initiation of a complaint;
(2) The complainant’s reasonable safety concerns regarding initiation of a complaint;
(3) The risk that additionalmay actsconstitute of sex discrimination would occur if a complaint is not initiated;
(4) The severity of the alleged sex discrimination, including whether the discrimination, if established, would require the removal of a respondent from campus or imposition of another disciplinary sanction to end the discrimination and prevent its recurrence;
(5) The age and relationship of the parties, including whether the respondent is an employee of the recipient;
(6) The scope of the alleged sex discrimination, including information suggesting a
pattern, ongoing sex discrimination, or sex discrimination alleged to have impacted multiple individuals;
(7) The availability of evidence to assist a decisionmaker in determining whether sex discrimination occurred; and
(8) Whether the recipient could end the alleged sex discrimination and prevent its recurrence without initiating its grievance procedures under § 106.45, and if applicable § 106.46.
(B) If, after considering these and other relevant factors, the Title IX Coordinatorin determines that the conduct as alleged presents an imminent and serious threat to the health or safety of the complainant or other person, or that the conduct as alleged prevents the recipient’s from ensuring equal access on the basis of sex to its education program or activity, the Title IX Coordinator may initiate a complaint.
(vi) If initiating a complaint under paragraph (f)(1)(v) of this section, notify the complainant prior to doing so and appropriately address reasonable concerns about the complainant’s safety or the safety of others, including by providing supportive measures consistent with paragraph (g) of this section; and
(vii6) RegardlessTake of whether a complaint is initiated, take other appropriate prompt and effective steps, in addition to steps necessary to effectuate the remedies provided to an individual complainant, if any, to ensure that sex discrimination does not continue or recur within the recipient’s education program or activity., (2)in Aaddition Titleto IXremedies Coordinatorprovided is not required to complyan withindividual paragraphscomplainant.
(fg)(1)(i) throughSupportive (vii)measures. ofUpon this section upon being notified of conduct that may constitute sex discrimination ifunder the Title IX, Coordinatora reasonably determines that the conduct as alleged could not constitute sex discrimination under Title IX orCoordinator thismust part.offer (g)supportive Supportive measures., Underas paragraphappropriate, (f)to ofthe thiscomplainant section,or arespondent recipientto mustthe offerextent andnecessary coordinateto supportiverestore measures,or aspreserve appropriate,that asparty’s describedaccess into paragraphsthe (g)(1)recipient’s througheducation (6)program ofor this sectionactivity. For allegations of sex discrimination, other than sex-based harassment or retaliation, a recipient’s provision of supportive measures doeswould not require the recipient, its employee, or any other person authorized to provide aid, benefit, or serviceservices on the recipient’s behalf to alter the allegedallegedly discriminatory conduct for the purpose of providing a supportive measure.
(1) Supportive measures may vary depending on what the recipient deems to be reasonablyavailable
availableand reasonable. These measures may include but are not limited to: counseling; extensions of deadlines and other course-related adjustments; campus escort services; increased security and monitoring of certain areas of the campus; restrictions on contact appliedbetween tothe one or more parties; leaves of absence; voluntary or involuntary changes in class, work, housing, or extracurricular or any other activity, regardless of whether there is or is not a comparable alternative; and training and education programs related to sex-based harassment.
(2) Supportive measures mustthat not unreasonably burden eithera partyrespondent andmay must be designedimposed toonly protectduring the safetypendency of thea parties or the recipient’s educational environment, or to provide support during the recipient’s grievance procedures under § 106.45, and if applicable § 106.46, and must be terminated at the conclusion of those grievance procedures. These measures must be no more restrictive of the respondent than is necessary to restore or duringpreserve the informalcomplainant’s resolutionaccess processto underthe §recipient’s 106education program or activity.44(k). A recipient mustmay not impose such measures for punitive or disciplinary reasons.
(3) AFor supportive measures other than those that burden a respondent, a recipient may, as appropriate, modify or terminate supportive measures at the conclusion of the grievance procedures under § 106.45, and if applicable § 106.46, or at the conclusion of the informal resolution process under paragraph (k) of this section, or the recipient may continue them beyond that point.
(4) A recipient must provide a complainant or respondent withaffected by a timelydecision opportunity to seekprovide, fromdeny, anmodify, appropriateor andterminate impartialsupportive employee,measures with a timely opportunity to seek modification or reversal of the recipient’s decision toby provide,an denyappropriate, modify,impartial or terminate supportive measures applicable to thememployee. The impartial employee must be someone other than the employee who made the decision being challenged decision and must have authority to modify or reverse the decision, if theappropriate. impartialA employeerecipient determinesmust thatmake thea decisionfact-specific inquiry to provide,determine deny,what modify,constitutes a timely opportunity for seeking
modification or terminatereversal of a supportive measure. If the supportive measure wasburdens inconsistentthe withrespondent, the definitioninitial opportunity to seek modification or reversal of supportivethe measuresrecipient’s indecision §must 106be provided before the measure is imposed or, if necessary under the circumstances, as soon as possible after the measure has taken effect.2. A recipient must also provide a partycomplainant or respondent affected by a supportive measure with the opportunity to seek additional modification or termination of asuch supportive measure applicable
to them if circumstances change materially.
(5) A recipient must ensure that it does not disclose information about any supportive measures to persons other than the personcomplainant or respondent unless necessary to whomprovide theythe apply,supportive includingmeasure. informingA onerecipient may inform a party of supportive measures provided to or imposed on another party, unlessonly if necessary to provide the supportive measure or restore or preserve athat party’s access to the education program or activity,.
or(6) whenUnder anparagraph exception in § 106.44(jf)(13) throughof (5)this appliessection, the Title IX Coordinator is responsible for offering and coordinating supportive measures.
(67) (i) If the complainant or respondent is an elementary or secondary student with a disability, the recipient must require the Title IX Coordinator tomust consult with one or more members, as appropriate, of the student’s Individualized Education Program (IEP) team, 34 CFR 300.321, if any, or one or more members, as appropriate, of the group of persons responsible for the student’s placement decision under 34 CFR 104.35(c) (Section 504 team), if any, to determinehelp howensure tothe complyrecipient complies with the requirements of the Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, in the implementation of supportive measures.
(ii) If the complainant or respondent is a postsecondary student with a disability, the Title IX Coordinator may consult, as appropriate, with the individual or office that the recipient has designated to provide supportsupports to students with disabilities to determinehelp howensure tothat complythe recipient
complies with Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, in the implementation of supportive measures.
(h) Emergency removal. Nothing in this part precludes a recipient from removing a respondent from the recipient’s education program or activity on an emergency basis, provided that the recipient undertakes an individualized safety and risk analysis, determines that an imminentimmediate and serious threat to the health or safety of a complainant or any students, employees, or other persons arising from the allegations of sex discrimination justifies removal, and provides the respondent with notice and an opportunity to challenge the decision immediately following the removal. This provision must not be construed to modify any rights under the Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, or Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq12131-12134.
(i) Administrative leave. Nothing in this part precludes a recipient from placing an employee respondent on administrative leave from employment responsibilities during the pendency of the recipient’s grievance procedures. This provision must not be construed to modify any rights under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, or Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq12131-12134.
(j) ProhibitedRecipient disclosuresprohibitions. ofWhen personallyconducting identifiablean information.informal Aresolution recipientprocess mustunder notparagraph disclose(k) personallyof identifiablethis informationsection, obtainedimplementing ingrievance theprocedures courseunder of§ complying with this part106.45, exceptand inif theapplicable following§ circumstances:106.46, (1)or Whenrequiring thea recipientTitle hasIX obtainedCoordinator priorto writtentake consentother fromappropriate asteps personunder withparagraph the(f)(6) legalof rightthis tosection, consenta torecipient themust disclosure;not (2)disclose When the informationidentity isof disclosed to a parentparty, guardianwitness, or other authorizedparticipant legalexcept representativein with the legalfollowing rightcircumstances:
to(1) receiveWhen disclosuresthe onparty, behalfwitness, ofor theother personparticipant whosehas personallyprovided identifiableprior informationwritten isconsent atto issuedisclose their identity;
(32) ToWhen carrypermitted outunder the purposesFamily ofEducational thisRights part,and includingPrivacy actionAct, taken20 toU.S.C address1232g, conductor thatits reasonablyimplementing mayregulations, constitute34 sexCFR discriminationpart under Title IX in the recipient’s education program or activity99;
(43) As required by Federal law, Federal regulations, or the terms and conditions of a Federal award, including a grant award or other funding agreement; or
(54) To thecarry extentout suchthe disclosurespurposes areof not otherwise in conflict with Title IX or this part, whenincluding requiredaction bytaken Stateto oraddress localconduct lawthat ormay whenconstitute permittedsex discrimination under FERPA,Title 20IX U.S.C.in 1232g,the orrecipient’s itseducation implementingprogram regulations,or 34 CFR part 99activity.
(k) Discretion to offer informal resolution in some circumstances.
(1) At any time prior to determining whether sex discrimination occurred under § 106.45, and if applicable § 106.46, a recipient may offer to a complainant and respondent an informal resolution process, unless thethere complaintare includes allegations that an employee engaged in sex-based harassmentdiscrimination oftoward ana elementary school or secondary school student or such a process would conflict with Federal, State or local law. A recipient that provides the parties an informal resolution process must, to the extent necessary, also require its Title IX Coordinator to take other appropriate prompt and effective steps to ensure that sex discrimination does not continue or recur within the recipient’s education program or activity.
(i) SubjectA to the limitations in paragraph (k)(1) of this section, a recipient has discretion to determine whether it is appropriate to offer an informal resolution process when it receives information about conduct that reasonably may constitute sex discrimination under Title IX or this part or when a complaint of sex discrimination is made, and may decline to offer informal resolution despite one or more of the parties’ wishes.
(ii) InCircumstances addition to the limitations in paragraph (k)(1) of this section, circumstances when a recipient may decline to allow informal resolution include but are not limited to when the recipient determines that the alleged conduct would present a future risk of harm to others.
(2) A recipient must not require or pressure the parties to participate in an informal resolution process. The recipient must obtain the parties’ voluntary consent to the informal resolution process and must not require waiver of the right to an investigation and determinationadjudication
of a complaint as a condition of enrollment or continuing enrollment, or employment or continuing employment, or exercise of any other right.
(3) Before initiation of an informal resolution process, the recipient must provide to the parties notice that explains:
(i) The allegations;
(ii) The requirements of the informal resolution process;
(iii) That, prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and to initiate or resume the recipient’s grievance procedures;
(iv) That the parties’ agreement to a resolution at the conclusion of the informal resolution process would preclude the parties from initiating or resuming grievance procedures arising from the same allegations;
(v) The potential terms that may be requested or offered in an informal resolution agreement,;
including(vi) noticeWhich thatrecords anwill informalbe resolutionmaintained agreementand iscould bindingbe only on the partiesshared;
and
(vivii) WhatThat informationif the recipient willinitiates maintainor andresumes whetherits grievance procedures under § 106.45, and howif applicable § 106.46, the recipient couldor a party must not access, consider, disclose, suchor otherwise use information, forincluding userecords, inobtained grievancesolely proceduresthrough underan §informal 106.45,resolution process as part of the investigation or determination of the outcome of the complaint; and
if(viii) applicableThat, §when 106.46applicable, and if the recipient resumes its grievance procedures, arethe initiatedinformal orresolution resumedfacilitator could serve as a witness for purposes other than providing information obtained solely through the informal resolution process.
(4) The facilitator for the informal resolution process must not be the same person as the investigator or the decisionmaker in the recipient’s grievance procedures. Any person
designated by a recipient to facilitate an informal resolution process must not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent. Any person facilitating informal resolution must receive training under § 106.8(d)(3).
(5) Potential terms that may be included in an informal resolution agreement include but are not limited to:
(i) Restrictions on contact; and
(ii) Restrictions on the respondent’s participation in one or more of the recipient’s programs or activities or attendance at specific events, including restrictions the recipient could have imposed as remedies or disciplinary sanctions had the recipient determined atthat thesex conclusiondiscrimination ofoccurred under the recipient’s grievance procedures that sex discrimination occurred.
19. Section 106.45 is revised to read as follows:
106.45 Grievance procedures for the prompt and equitable resolution of complaints of sex discrimination.
(a) (1) General. AFor recipient’spurposes grievanceof proceduresaddressing forcomplaints theof promptsex anddiscrimination, equitablea resolutionrecipient’s ofprompt complaintsand ofequitable sexgrievance discriminationprocedures must be in writing and include provisions that incorporate the requirements of this section. The requirements related to a respondent apply only to sex discrimination complaints alleging that a person violated the recipient’s prohibition on sex discrimination. When a sex discrimination complaint alleges that a recipient’s policy or practice discriminates on the basis of sex, the recipient is not considered a respondent.
(a) (2) Complaint. The following persons have a right to make a complaint of sex discrimination, including complaints of sex-based harassment, requesting that the recipient investigateinitiate andits makegrievance a determination about alleged discrimination under Title IX or this partprocedures:
(i) A complainant;
(ii) A parent,person guardian,who orhas othera authorizedright legalto representativemake witha thecomplaint legal right to act on behalf of a complainant under § 106.6(g);
(iii) The Title IX Coordinator, after making the determination specified in § 106.44(f)(1)(v);
(iv) With respect to complaints of sex discrimination other than sex-based harassment, inany addition to the persons listed in paragraphs (a)(2)(i) through (iii) of this section,
(A) Any student or employee; or (B)third Anyparty person other than a student or employee who was participating or attempting to participate in the recipient’s education program or activity atwhen the time of the alleged sex discrimination occurred.
(b) Basic requirements for grievance procedures. A recipient’s grievance procedures must:
(1) Treat complainants and respondents equitably;
(2) Require that any person designated as a Title IX Coordinator, investigator, or decisionmaker not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent. The decisionmaker may be the same person as the Title IX Coordinator or investigator;
(3) Include a presumption that the respondent is not responsible for the alleged sexconduct discrimination until a determination whether sex discrimination occurred is made at the conclusion of the recipient’s grievance procedures for complaints of sex discrimination;
(4) Establish reasonably prompt timeframes for the major stages of the grievance procedures, including a process that allows for the reasonable extension of timeframes on a case-by-case basis for good cause with notice to the parties that includes the reason for the delay. Major stages include, for example, evaluation (i.e., the recipient’s decisiondetermination of whether to dismiss or investigate a complaint of sex discrimination); investigation; determination; and appeal, if any;
(5) RequireTake the recipient to take reasonable steps to protect the privacy of the parties and witnesses during the pendency of a recipient’s grievance procedures, provided that the steps do not restrict the ability of the parties to: obtain and present evidence, including by speaking to witnesses, subject to § 106.71; consult with theira family membersmember, confidential resourcesresource, or advisorsadvisor; or otherwise prepare for ora participatehearing, inif theone grievanceis proceduresoffered; or otherwise defend their interests;
(6) Require an objective evaluation of all relevant evidence, thatconsistent iswith relevant,the asdefinition definedof relevant in § 106.2, and not otherwise impermissible under paragraph (b)(7) of this section—including both inculpatory and exculpatory evidence—and provide that credibility determinations must not be based on a person’s status as a complainant, respondent, or witness; and
(7) Exclude the following types of evidence, and questions seeking that evidence, as impermissible (i.e., must not be accessed, or considered, except by the recipient to determine whether an exception in paragraphs (i) through (iii) applies; must not be disclosed;, andor must not otherwise be used), regardless of whether they are relevant:
(i) Evidence that is protected under a privilege as recognized by Federal or State law or evidence provided to a confidential employee, unless the person toholding whomsuch privilege has waived the privilege orvoluntarily confidentialityin isa owedmanner haspermitted voluntarilyin waived the privilegerecipient’s or confidentialityjurisdiction;
(ii) A party’s or witness’s records that are made or maintained by a physician, psychologist, or other recognized professional or paraprofessional in connection with the provision of treatment to the party or witness, unless the recipient obtains that party’s or witness’s voluntary, written consent for use in the recipient’s grievance procedures; and
(iii) Evidence that relates to the complainant’s sexual interests or prior sexual conduct, unless evidence about the complainant’s prior sexual conduct is offered to prove that someone other than the respondent committed the alleged conduct or is offered to prove consent with evidence aboutconcerning specific incidents of the complainant’s prior sexual conduct with the
respondent that is offered to prove consent to the alleged sex-based harassment. The fact of prior consensual sexual conduct between the complainant and respondent does not by itself demonstrate or imply the complainant’s consent to the alleged sex-based harassment or preclude determination that sex-based harassment occurred; and
(8) If a recipient adopts grievance procedures that apply to the resolution of some, but not all, complaints articulate consistent principles for how the recipient will determine which procedures apply.
(c) Notice of allegations. Upon initiation of the recipient’s grievance procedures, a recipient must provide notice of the allegations to the parties whose identities are known.
(1) The notice must include:
(i) The recipient’s grievance procedures under this section, and if applicable § 106.46, and any informal resolution process under § 106.44(k);
(ii) Sufficient information available at the time to allow the parties to respond to the allegations. Sufficient information includes the identities of the parties involved in the incident(s), the conduct alleged to constitute sex discrimination under Title IX or this part, and the date(s) and location(s) of the alleged incident(s), to the extent that information is available to the recipient; and
(iii) A statement that retaliation is prohibited; and
(iv) A statement that the parties are entitled to an equal opportunity to access the relevant and not otherwise impermissible evidence or an accurate description of this evidence as set out in paragraph (f)(4) of this section; and if the recipient provides a description of the evidence, the parties are entitled to an equal opportunity to access to the relevant and not otherwise impermissible evidence upon the request of any party.
(2) If, in the course of an investigation, the recipient decides to investigate additional allegations ofabout sex discrimination by the respondent’s conduct toward the complainant that are not included in the notice provided under paragraph (c)(1) of this section or that are included in a complaint that is consolidated under paragraph (e) of this section, the recipient must provide notice of the additional allegations to the parties whose identities are known.
(d) Dismissal of a complaint.
(1) A recipient may dismiss a complaint of sex discrimination made through its grievance procedures under this section, and if applicable § 106.46, for any of the following reasons:
(i) The recipient is unable to identify the respondent after taking reasonable steps to do so;
(ii) The respondent is not participating in the recipient’s education program or activity and is not employed by the recipient;
(iii) The complainant voluntarily withdraws any or all of the allegations in the complaint, the Title IX Coordinator declines to initiate a complaint under § 106.44(f)(1)(v), and the recipient determines that, without the complainant’s withdrawn allegations, the conduct that remains alleged in the complaint, if any, would not constitute sex discrimination under Title IX or this part even if proven; or
(iv) The recipient determines the conduct alleged in the complaint, even if proven, would not constitute sex discrimination under Title IX or this part. Prior to dismissing the complaint under this paragraph, the recipient must make reasonable efforts to clarify the allegations with the complainant.
(2) Upon dismissal, a recipient must promptly notify the complainant of the basis for the dismissal. If the dismissal occurs after the respondent has been notified of the allegations, then the recipient must also notify the respondent of the dismissal and the basis for the dismissal promptly following notification to the complainant, or simultaneously if notification is in writing.
(3) A recipient must notify theall complainantparties that a dismissal may be appealed, and provide theany complainantparty with an opportunity to appeal theits dismissal of a complaint on the bases set out in § 106.46(i)(1). If the dismissal occurs after the respondent has been notified of the allegations, thenand the recipient must also notify the respondent that the dismissal may be appealed on the bases set out in § 106.46(i)(1). If the dismissal is appealed, the recipient must:
(i) Notify the parties ofwhen anyan appeal, includingis noticefiled ofand theimplement allegations consistent with paragraph (c) of this section if notice was not previously provided to the respondent;
(ii) Implement appeal procedures equally for the parties;
(iiiii) Ensure that the decisionmaker for the appeal did not take part in an investigation of the allegations or dismissal of the complaint;
(iviii) Ensure that the decisionmaker for the appeal has been trained as set out in § 106.8(d)(2);
(viv) Provide the parties a reasonable and equal opportunity to make a statement in support of, or challenging, the outcome; and
(viv) Notify theall parties of the result of the appeal and the rationale for the result.
(4) A recipient that dismisses a complaint must, at a minimum:
(i) Offer supportive measures to the complainant as appropriate under § 106.44(g);
(ii) For dismissals under paragraphparagraphs (d)(1)(iii) or (1)(iv) of this section in which the respondent has been notified of the allegations, offer supportive measures to the respondent as appropriate under § 106.44(g); and
(iii) Require its Title IX Coordinator to take other appropriate prompt and effective steps to ensure that sex discrimination does not continue or recur within the recipient’s education program or activity under § 106.44(f)(16)(vii).
(e) Consolidation of complaints. A recipient may consolidate complaints of sex discrimination against more than one respondent, or by more than one complainant against one or more respondents, or by one party against another party, when the allegations of sex discrimination arise out of the same facts or circumstances. If one of the complaints to be consolidated is a complaint of sex-based harassment involving a student complainant or student respondent at a postsecondary institution, the grievance procedures for investigating and resolving the consolidated complaint must comply with the requirements of this section and § 106.46 in addition to the requirements of this section. When more than one complainant or more than one respondent is involved, references in this section and in § 106.46 to a party, complainant, or respondent include the plural, as applicable.
(f) Complaint investigation. A recipient must provide for adequate, reliable, and impartial investigation of complaints. To do so, the recipient must:
(1) Ensure that the burden is on the recipient—not on the parties—to conduct an investigation that gathers sufficient evidence to determine whether sex discrimination occurred;
(2) Provide an equal opportunity for the parties to present relevant fact witnesses and other inculpatory and exculpatory evidence that are relevant and not otherwise impermissible;
(3) Review all evidence gathered through the investigation and determine what evidence is relevant and what evidence is impermissible regardless of relevance, consistent with § 106.2 and with paragraph (b)(7) of this section; and
(4) Provide each party with ana equaldescription opportunityof to access the evidence that is relevant to the allegations of sex discrimination and not otherwise impermissible, consistentas withwell §as 106.2 and with paragraph (b)(7) of this section, in the following manner:
(i) A recipient must provide an equal opportunity to access either the relevant and not otherwise impermissible evidence, or an accurate description of this evidence. If the recipient provides a description of the evidence, it must further provide the parties with an equal opportunity to access the relevant and not otherwise impermissible evidence upon the request of any party;
(ii) A recipient must provide a reasonable opportunity to respond to the evidence or to the accurate description of the evidence described in paragraph (f)(4)(i) of this section; and
(iii) A recipient must take reasonable steps to prevent and address the parties’ unauthorized disclosure of information and evidence obtained solely through the grievance procedures.
For purposes of this paragraph, disclosures of such information and evidence for purposes of administrative proceedings or litigation related to the complaint of sex discrimination are authorized.
(g) QuestioningEvaluating parties and witnesses to aid in evaluating allegations and assessing credibility. A recipient must provide a process that enables the decisionmaker to questionadequately partiesassess andthe witnessescredibility toof adequatelythe assessparties aand party’switnesses or witness’s credibility to the extent credibility is both in dispute and relevant to evaluating one or more allegations of sex discrimination.
(h) Determination of whether sex discrimination occurred. Following an investigation and evaluation ofprocess all relevant and not otherwise impermissible evidence under paragraphs (f) and (g) of this section, the recipient must:
(1) Use the preponderance of the evidence standard of proof to determine whether sex discrimination occurred, unless the recipient uses the clear and convincing evidence standard of proof in all other comparable proceedings, including proceedings relating to other discrimination complaints, in which case the recipient may elect to use that standard of proof in determining whether sex discrimination occurred. Both standards of proof require the decisionmaker to evaluate relevant and not otherwise impermissible evidence for its persuasiveness; if the decisionmaker is not persuaded under the applicable standard by the evidence that sex discrimination occurred, whatever the quantity of
the evidence is, the decisionmaker mustshould not determine that sex discrimination occurred.
(2) Notify the parties inof writingthe outcome of the complaint, including the determination of whether sex discrimination occurred under Title IX or this part including the rationale for such determination, and the procedures and permissible bases for the complainant and respondent to appeal, if applicable;
(3) If there is a determination that sex discrimination occurred, as appropriate, require the Title IX Coordinator to coordinateprovide the provision and implementationimplement of remedies to a complainant andor other personsperson the recipient identifies as having had equal access to the recipient’s education program or activity limited or denied by sex discrimination, coordinate the imposition of any disciplinary sanctions on a respondent, including notification to the
complainant of any such disciplinary sanctions, and require the Title IX Coordinator to take other appropriate prompt and effective steps to ensure that sex discrimination does not continue or recur within the recipient’s education program or activity under § 106.44(f)(16)(vii). A recipient may not impose discipline on a respondent for sex discrimination prohibited by Title IX unless there is a determination at the conclusion of the recipient’s grievance procedures that the respondent engaged in prohibited sex discrimination;
(4) Comply with §this 106.45section, and if applicable § 106.46, before the imposition of any disciplinary sanctions against a respondent; and
(5) Not discipline a party, witness, or others participating in a recipient’s grievance procedures for making a false statement or for engaging in consensual sexual conduct based solely on the recipient’s determination of whether sex discrimination occurred.
(i) Appeals. In addition to an appeal of a dismissal consistent with paragraph (d)(3) of this section, a recipient must offer the parties an appeal process that, at a minimum, is the same as it offers in all other comparable proceedings, if any, including proceedings relating to other discrimination complaints. For a complaint of sex-based harassment involving a student complainant or student respondent, a postsecondary institution must also offer an appeal on the bases set out in § 106.46(i)(1).
(j) Additional provisions. If a recipient adopts additional provisions as part of its grievance procedures for handling complaints of sex discrimination, including sex-based harassment, such additional provisions must apply equally to the parties.
(kj) Informal resolution. In lieu of resolving a complaint through the recipient’s grievance procedures, the parties may instead elect to participate in an informal resolution process under § 106.44(k) if provided by the recipient consistent with that paragraph.
(lk) Provisions limited to sex-based harassment complaints. For complaints alleging sex-based harassment, the grievance procedures must:
(1) Describe the range of supportive measures available to complainants and respondents under § 106.44(g); and
(2) List,Describe or describe the range of, or list, the possible disciplinary sanctions that the recipient may impose and remedies that the recipient may provideimpose following a determination that sex-based harassment occurred.
§ 106.46 [Redesignated as § 106.48]
20. Section 106.46 is redesignated as §section 106.48 inwithin subpart D.
21. AddSection a new § 106.46 is added to subpart D to read as follows:
106.46 Grievance procedures for the prompt and equitable resolution of complaints of sex-based harassment involving student complainants or student respondents at postsecondary institutions.
(a) General. A postsecondary institution’s prompt and equitable written grievance procedures for prompt and equitable resolution of complaints of sex-based harassment involving a student complainant or student respondent must include provisions that incorporate the requirements of § 106.45 and this section.
(b) Student employees. When a complainant or respondent is both a student and an employee of a postsecondary institution, the postsecondary institution must make a fact-specific inquiry to determine whether the requirements of this section apply. In making this determination, a postsecondary institution must, at a minimum, consider whether the party’s primary relationship with the postsecondary institution is to receive an education and whether the alleged sex-based harassment occurred while the party was performing employment-related work.
(c) Written notice of allegations.
(1) Upon the initiation of the postsecondary institution’s sex-based harassment grievance procedures under this section, a postsecondary institution must provide written notice to the parties, whose identities are known, withof:
sufficient(i) timeAll forinformation therequired partiesunder to§ prepare106.45(c); aand
response before any initial interview.
(1ii) TheAllegations writtenpotentially noticeconstituting mustsex-based includeharassment, allincluding the information required under § 106.45(c)(1)(iii), throughwith sufficient time for the parties to prepare a response before any initial interview.
(iii2) andThe written notice must also inform the parties that:
(i) The respondent is presumed not responsible for the alleged conduct until a determination of whether sex-based harassment untiloccurred a determination is made at the conclusion of the grievance procedures under this section and that prior to the determination, the parties will have an opportunity to present relevant and not otherwise impermissible evidence to a trained, impartial decisionmaker;
(ii) They may have an advisor of their choice to serve in the role set out in paragraph (e)(2) of this section, and that the advisor may be, but is not required to be, an attorney;
(iii) They are entitled to anreceive equalaccess opportunity to access the relevant and not otherwise impermissible evidence or to an investigative report that accurately summarizes this evidence as set out in paragraph (e)(6) of this section; and
if the postsecondary institution provides access to an investigative report, the parties are entitled to an equal opportunity to access to the relevant and not otherwise impermissible evidence upon the request of any party; and
(iv) If applicable, any provision in the postsecondary institution’s code of conduct prohibits knowingly making false statements or knowingly submitting false information during the grievance procedure.
(2) If, in the course of an investigation, the recipient decides to investigate additional
allegations of sex-based harassment by the respondent toward the complainant that are not included in the written notice provided under paragraph (c) of this section or that are included in a complaint that is consolidated under § 106.45(e), the recipient must provide written notice of the additional allegations to the parties whose identities are known.
(3) To the extent the postsecondary institution has reasonablelegitimate concerns for the safety of any person as a result of providing this notice, the postsecondary institution may reasonably delay providing written notice of the allegations in order to address the safety concern appropriately. ReasonableLegitimate concerns must be based on individualized safety and risk analysis and
not on mere speculation or stereotypes.
(d) Dismissal of a complaint. When dismissing a complaint alleging sex-based harassment and involving a student complainant or a student respondent, a postsecondary institution must:
(1) Provide the parties, simultaneously, with written notice of the dismissal and the basis for the dismissal, if dismissing a complaint under any of the bases in § 106.45(d)(1), except if the dismissal occurs before the respondent has been notified of the allegations, in which case the recipient must provide such written notice only to the complainant; and
(2) Obtain the complainant’s withdrawal in writing if dismissing a complaint based on the complainant’s voluntary withdrawal of the complaint or allegations under § 106.45(d)(1)(iii).
(e) Complaint investigation. When investigating a complaint alleging sex-based harassment and throughout the postsecondary institution’s grievance procedures for complaints of sex-based harassment involving a student complainant or a student respondent, a postsecondary institution:
(1) Must provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all meetings, investigative interviews, or proceedingshearings with sufficient time for the party to prepare to participate;
(2) Must provide the parties with the same opportunities to be accompanied to any meeting or proceeding by the advisor of their choice, who may be, but is not required to be, an attorney, and not limit the choice or presence of the advisor for the complainant or respondent in any meeting or grievance proceeding; however, the postsecondary institution may establish restrictions regarding the extent to which the advisor may participate in the grievance procedures, as long as the restrictions apply equally to the parties;
(3) Must provide the parties with the same opportunities, if any, to have persons other than the advisor of the parties’ choice present during any meeting or proceeding;
(4) Has discretion to determine whether the parties may present expert witnesses as long as the determination applies equally to the parties;
(5) Must allow for the reasonable extension of timeframes on a case-by-case basis for good cause with written notice to the parties that includes the reason for the delay; and
(6) Must provide each party and the party’s advisor, if any, with anequitable equalaccess opportunity to access the evidence that is relevant to the allegations of sex-based harassment and not otherwise impermissible, consistent with §§ 106.2 and 106.45(b)(7), in the following manner:
(i) A postsecondary institution must provide aneither equalequitable opportunityaccess to access either the relevant and not otherwise impermissible evidence, or to the same written investigative report that accurately summarizes this evidence. If the postsecondary institution provides access to an investigative report, it must further provide the parties with anequitable equalaccess opportunity to access the relevant and not otherwise impermissible evidence upon the request of any party;
(ii) A postsecondary institution must provide the parties with a reasonable opportunity to review and respond to the evidence oras theprovided investigativeunder report described in paragraph (e)(6)(i) of this section prior to the determination of whether sex-based harassment occurred. If a postsecondary institution conducts a live hearing as part of its grievance procedures, it must provide this opportunity to review the evidence in advance of the live hearing; it is at the postsecondary institution’s discretion whether to provide this opportunity to respond prior to the live hearing, during the live hearing, or both prior to and during the live hearing;
(iii) A postsecondary institution must take reasonable steps to prevent and address the parties’ and their advisors’ unauthorized disclosure of information and evidence obtained solely through the sex-based harassment grievance procedures. For purposes of this paragraph, disclosures of such information and evidence for purposes of administrative proceedings or litigation related to the complaint of sex-based harassment are authorized; and
(iv) Compliance with paragraph (e)(6) of this section satisfies the requirements of
§ 106.45(f)(4).
(f) QuestioningEvaluating parties and witnesses to aid in evaluating allegations and assessing credibility.
(1) Process for questioningevaluating partiesallegations and witnessesassessing credibility. A postsecondary institution must provide a process as specified in this subpart that enables the decisionmaker to questionadequately partiesassess andthe witnessescredibility toof adequatelythe assessparties aand party’switnesses or witness’s credibility to the extent credibility is both in dispute and relevant to evaluating one or more allegations of sex-based harassment. QuestioningThis assessment of thecredibility partiesincludes andeither:
witnesses(i) mustAllowing takethe placedecisionmaker consistentto withask the followingparties provisionsand beforewitnesses, determiningduring whetherindividual sex-basedmeetings harassmentwith occurred:the (i)parties Whenor aat postsecondary institution chooses not to conduct a live hearing under paragraph (g) of this section, the process for proposing and asking relevant and not otherwise impermissible questions and follow-up questions of parties and witnesses under §§ 106.2 and 106.45(b)(7) and follow-up questions, including questions challenging credibility, must:before (A)determining Allowwhether thesex-based investigatorharassment oroccurred decisionmakerand allowing each party to askpropose suchto questionsthe duringdecisionmaker individualor meetingsinvestigator withrelevant aand partynot orotherwise witness;impermissible questions under §§ 106.2 and 106.45(Bb)(7) Allowand eachfollow-up partyquestions, toincluding proposequestions suchchallenging questionscredibility, that the party wants asked of any party or witness and have those questions asked byduring theindividual investigatormeetings orwith decisionmakerthe duringparties one or moreat individuala meetings,live includinghearing follow-upunder meetings,paragraph with(g) aof partythis orsection witness, subject to the requirements in paragraph (f)(3) of this section; and
(C) Provide each party with an audio or
audiovisual recording or transcript with enough time for the party to have a reasonable opportunity to propose follow-up questions.
(ii) When a postsecondary institution chooses to conduct a live hearing, underallowing paragrapheach (g)party’s ofadvisor thisto section,ask theany processparty forand proposingany andwitnesses askingall relevant and not otherwise impermissible questions and follow-up questions of parties and witnesses under §§ 106.2 and 106.45(b)(7), includingand questionsfollow-up challenging credibility, must allow the decisionmaker to ask such questions, andincluding either:
(A) Allow each party to propose such questions thatchallenging the party wants asked of any party or witness and have those questions asked by the decisionmakercredibility, subject to the requirements under paragraph (f)(3) of this section; or
(B) Allow each party’s advisor to ask any party or witness such questions, subject to the requirements under paragraph (f)(3) of this section. Such questioning must never be conducted by a party personally. If a postsecondary institution permits advisor-conducted questioning and a party does not have an advisor towho can ask questions on their behalf, the postsecondary institution must provide the party with an advisor of
the postsecondary institution’s choice, without charge to the party, for the purpose of advisor-conductedconducting questioning. InThe thoseadvisor instances, the postsecondary institution must not appoint a confidential employee and may appointbe, but is not required to appointbe, an attorney to serve as an advisor.
(2) Compliance with § 106.45(g). Compliance with paragraph (f)(1)(i) or (f)(1)(ii) of this section satisfies the requirements of § 106.45(g).
(3) Procedures for the decisionmaker to evaluate the questions and limitations on questions. The decisionmaker must determine whether a proposed question is relevant under § 106.2 and not otherwise impermissible under §§§ 106.2 and 106.45(b)(7), prior to the question being posed, and must explain any decision to exclude a question as not relevant or otherwise impermissible. If a decisionmaker determines that a party’s question is relevant and not otherwise impermissible, then theit question must be asked except that a postsecondary institution must not permit questions that are unclear or harassing of the party or witness being questioned. The decisionmaker must give a party an opportunity to clarify or revise a question that the decisionmaker has determined is unclear or harassing and, if the party sufficiently clarifies or revises a question to satisfy the terms of this paragraph, the question must be asked. A postsecondary institution may also adoptimpose and apply other reasonable rules regarding decorum, provided they apply equally to the parties.
(4) Refusal to respond to questions andrelated inferencesto basedcredibility. onIf refusala toparty does not respond to questions. Arelated decisionmakerto maytheir choosecredibility, tothe placedecisionmaker lessmust ornot norely weighton uponany statementsstatement byof athat party orthat witnesssupports whothat refusesparty’s to respond to questions deemed relevant and not impermissibleposition. The decisionmaker must not draw an inference about whether sex-based harassment occurred based solely on a party’s or witness’s refusal to respond questions related to suchtheir questionscredibility.
(g) Live hearing procedures. A postsecondary institution’s sex-based harassment grievance procedures may, but need not, provide for a live hearing. If a postsecondary institution chooses to conduct a live hearing, it may conduct the live hearing with the parties physically present in the same geographic location., Atbut at the postsecondary institution’s discretion the institution may, or upon the request of either party, it must,will conduct the live hearing with the parties physically present in separate locations, with technology enabling the decisionmaker and parties to simultaneously see
and hear the party or the witness while that person is speaking or communicating in another format. A postsecondary institution must create an audio or audiovisual recording, or transcript, of any live hearing and make it available to the parties for inspection and review.
(h) Written determination of whether sex-based harassment occurred. The postsecondary institution must provide the determination whether sex-based harassment occurred in writing to the parties simultaneously.
(1) The written determination must include:
(i) A description of the alleged sex-based harassment;
(ii) Information about the policies and procedures that the postsecondary institution used to evaluate the allegations;
(iii) The decisionmaker’s evaluation of the relevant and not otherwise impermissible evidence and determination of whether sex-based harassment occurred;
(iv) When the decisionmaker finds that sex-based harassment occurred, any disciplinary sanctions the postsecondary institution will impose on the respondent, and whether remedies other than the imposition of disciplinary sanctions will be provided by the postsecondary institution to the complainant, and, to the extent appropriate, other students identified by the postsecondary institution to be experiencing the effects of the sex-based harassment; and
(v) The postsecondary institution’s procedures for the complainant and respondent to appeal.
(2) The determination regarding responsibility becomes final either on the date that the postsecondary institution provides the parties with the written determination of the result of anythe appeal, orif an appeal is filed, or if noan partyappeal appealsis not filed, the date on which an appeal would no longer be considered timely.
(i) Appeals.
(1) A postsecondary institution must offer the parties an appeal from a determination whetherthat sex-based harassment occurred, and from a postsecondary institution’s dismissal of a complaint or any allegations therein, on the following bases:
(i) Procedural irregularity that would change the outcomedetermination of whether sex-based harassment occurred in the matter;
(ii) New evidence that would change the outcome of the matter and that was not reasonably available whenat the time the determination of whether sex-based harassment occurred or dismissal was made; and
(iii) The Title IX Coordinator, investigator, or decisionmaker had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that would change the outcome of the matter.
(2) A postsecondary institution may offer an appeal equally to the parties on additional bases, soas long as the procedures and additional bases for appeal are equally available to all parties.
(3) As to all appeals, the postsecondary institution must comply with the requirements in § 106.45(d)(3)(i), (viv), and (viv) in writing.
(j) Informal resolution. If a postsecondary institution offers or provides the parties to the grievance procedures under § 106.45 and under this section with an informal resolution process under § 106.44(k), the postsecondary institution must inform the parties in writing of the offer and their rights and responsibilities in the informal resolution process and otherwise comply with the provisions of § 106.44(k)(3) in writing.
22. Section 106.47 is added to subpart D to read as follows:
106.47 Assistant Secretary review of sex-based harassment complaints.
The Assistant Secretary will not deem a recipient to have violated this part solely because the Assistant Secretary would have reached a different determination in a particular complaint alleging sex-based harassment than a recipient reached under § 106.45, and if applicable § 106.46, based on thean Assistant Secretary’s independent weighing of the evidence in sex-based harassment complaints.
23. Section 106.51 is amended by revising paragraph (b)(6) to read as follows:
106.51 Employment.
* * * * *
(b)* * * * * * * *
(6) Granting and return from leaves of absence, leave for pregnancy or related conditions, leave for persons of either sex to care for children or dependents, or any other leave;
* * * * *
24. Section 106.57 is revised to read as follows:
106.57 Parental, family, or marital status; pregnancy or related conditions.
(a) Status generally. A recipient mustshall not adopt or implementapply any policy, practice, or procedure, or take any employment action, on the basis of sex:
(1) Concerning the current, potential, or past parental, family, or marital status of an employee or applicant for employment, which treats persons differently; or
(2) ThatWhich is based upon whether an employee or applicant for employment is the head of household or principal wage earner in such employee’s or applicant’s family unit.
(b) Pregnancy or related conditions. A recipient mustshall not discriminate against or exclude from employment any employee or applicant for employment on the basis of current, potential, or past pregnancy or related conditions.
(c) Comparable treatment to other temporary medicaldisabilities or conditions. A recipient mustshall treat pregnancy or related conditions or any temporary disability resulting therefrom as any other temporary medicaldisability conditions for all job-related purposes, including commencement, duration and extensions of leave;, payment of disability income;, accrual of seniority and any other benefit or service;, and reinstatement;, and under any fringe benefit offered to employees by virtue of employment.
(d) VoluntaryPregnancy leaves of absenceleave. In the case of a recipient that does not maintain a leave policy for its employees, or in the case of an employee with insufficient leave or accrued employment time to qualify for leave under such a policy, a recipient mustshall treat pregnancy or related conditions as a justification for a voluntary leave of absence without pay for a reasonable period of time, at the conclusion of which the employee shall be reinstated to the status held when the leave began or to a comparable position, without decrease in rate of compensation or loss of promotional opportunities, or any other right or privilege of employment.
(e) Lactation time and space.
(1) A recipient must provide reasonable break time for an employee to express breast milk or breastfeed as needed.
(2) A recipient must ensure thatthe anavailability employeeof can access a lactation space, which must be a space other than a bathroom that is clean, shielded from view, free from intrusion from others, and may be used by an employee for expressing breast milk or breastfeeding as needed.
25. Section 106.60 is revised to read as follows:
106.60 Pre-employment inquiries.
(a) Marital status. A recipient must not make a pre-employment inquiry as to the marital status of an applicant for employment, including whether such applicant is “Miss or Mrs.”
(b) Sex. A recipient may ask an applicant for employment to self-identify their sex, but only if this question is asked of all applicants and if the response is not used as a basis for discrimination prohibited by Title IX or this part.
26. Section 106.71 is revised to read as follows:
106.71 Retaliation.
A recipient must prohibit retaliation, including peer retaliation, in its education program or activity. When a recipient hasreceives information about conduct that reasonably may constitute retaliation under Title IX or this part, the recipient is obligated to comply with § 106.44. UponA receiving a complaint alleging retaliation, a recipient must initiate its grievance procedures underupon §receiving 106.45,a or,complaint asalleging appropriate,retaliation an informal resolution process under § 106.44(k)45. As set out in § 106.45(e), if the complaint is consolidated with a complaint of sex-based harassment involving a student complainant or student respondent at a postsecondary institution, the grievance procedures initiated by the consolidated complaint must comply with the requirements of both §§ 106.45 and 106.46. Prohibited retaliation includes but is not limited to:
(a) Initiating a disciplinary process against a person for a code of conduct violation that does not involve sex discrimination but arises out of the same facts and circumstances as a complaint or information reported about possible sex discrimination, for the purpose of interfering with the exercise of any right or privilege secured by Title IX or this part; or
(b) Peer retaliation.
27. Section 106.81 is revised to read as follows:
106.81 Procedures.
The procedural provisions applicable to Titletitle VI of the Civil Rights Act of 1964 are hereby adopted and incorporated herein by reference. These procedures may be found at 34 CFR 100.6 through -100.11 and 34 CFR part 101.
