Filed Under: Appeals
The regs state that the recipient must offer appeal rights that are the same as the recipient offers in all other comparable proceedings. So, if a unionized campus offers three levels of appeal related to discrimination complaints for employees who are unionized under its CBA, would it then have to offer the same three levels of appeal in its Title IX-related resolutions, on the same exact bases/grounds for appeal as are offered in the CBA? What proceedings does OCR consider comparable? Would it be limited to other employee cases? Or does comparable not differentiate between types of populations (students, employees, faculty)?
Section 106.45(i) states “[i]n 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).” Therefore, how a collective bargaining agreement interacts with a recipient’s obligations under § 106.45(i) is necessarily a fact-specific inquiry that depends on the appeal process offered in comparable proceedings, if any, including proceedings relating to other discrimination complaints. The preamble to the 2024 Title IX regulations emphasizes that “a recipient has discretion to decide whether the opportunity to appeal a determination [whether sex discrimination occurred] would be appropriate for a given type of complaint, as long as a recipient does not exercise this discretion arbitrarily.” 89 FR 33712; see also 87 FR 41489.
Further, as explained in the preamble to the 2024 Title IX regulations:
- “[W]hile a recipient may choose to implement a single procedure for all of its complaints (as long as the single procedure satisfies the requirements of § 106.45, and if applicable § 106.46), it may choose otherwise for various reasons, such as to comply with its other obligations under Federal, State, or local law. Nothing in the final regulations prohibits a postsecondary institution from, for example, choosing to maintain one set of grievance procedures for employee-to-employee sex-based harassment complaints that are consistent with § 106.45 and its legal or contractual requirements on employee-involved complaints; one set of grievance procedures for employee-to-student sex-based harassment complaints that are consistent with § 106.46 and those same legal or contractual requirements; and another set of grievance procedures for student-to-student sex-based harassment complaints that are consistent with § 106.46 and State law governing student discipline.” 89 FR 33656.