ATIXA's 2024 Program Legal and 2020 OPEN Center Responses

If we are providing supportive measures on August 2, 2024, for an incident that happened in May of 2024, with no associated complaint, would recipients be bound to allow a challenge of the supportive measures?

Can Program Legal provide clarification reconciling what a respondent has to report about themselves if they are a Mandated Reporter?

Could a recipient voluntarily adopt a policy that allows a confidential employee to report to the Title IX Coordinator if a complainant wanted them to, case-by-case? Or does this language prohibit such an approach: The Department declines to adopt a commenter’s suggestion to give students the option of whether to have a confidential employee keep a disclosure confidential or have that employee report it to the Title IX Coordinator. The Department is concerned that this approach could create confusion among students and employees as to whether and when a confidential employee has received appropriate consent to report to the Title IX Coordinator. The Department notes that final § 106.44(d)(2), as revised, requires a confidential employee to provide sufficient guidance to enable the student to report to the Title IX Coordinator by providing the student with information about how to contact the Title IX Coordinator and how to make a complaint of sex discrimination.

In defining sexual assault, does OCR intend recipients to use the terms forcible and non-forcible in policy language?

The regs require all personnel directly involved in carrying out the recipient’s Title IX duties to be trained in a manner that promotes a recipient’s compliance with these final regulations. The Department notes that this would include any advisors, graduate students, contractors, volunteers, or third-party agents who are performing roles that are directly involved in carrying out the recipient’s Title IX duties. Does this reference to advisors mean party advisors in the Title IX resolution process? Or academic advisors, or some of kind of advisors?

Just to be clear, with respect to partial removals, a partial removal that is non-disciplinary/non-punitive can be addressed as a supportive measure, but a partial removal that is punitive would be subject to the emergency removal standards?

In the July 2022 NPRM, the Department provided the example of a student who reports that his peers repeatedly denigrated him as “girly” over a period of weeks. 87 FR 41417. In this example, if one peer made a one-off remark calling the student “girly,” that alone may not be severe or pervasive enough to create a hostile environment, but if multiple peers repeatedly call the student “girly,” then that same treatment may create a hostile environment for that student. Similarly, if one student at a postsecondary institution made a derogatory comment to a pregnant student based on her pregnancy, that alone may not be sufficient to create a hostile environment, but if multiple people make similar comments to the same student based on pregnancy, that may create a hostile environment for the student. The Department notes that, when the elements of sex-based hostile environment are satisfied for an affected student, a recipient has an obligation to address that hostile environment, even if a particular respondent’s conduct does not justify discipline. For example, in response to a hostile environment created by a series of incidents by different respondents, a recipient may offer supportive measures to the affected student or provide training for the broader school community.” Understood, but in the process of investigating this, to determine if it is severe or pervasive, who is the respondent? Is this addressed the same way other investigations would be under the regs, since we still need to determine if a hostile environment has been created?

The regs state with respect to dismissals: (v) Provide the parties a reasonable and equal opportunity to make a statement in support of, or challenging, the outcome; What does OCR mean by “challenge the outcome” given that the grounds for appeal would seem to only permit a substantive (versus procedural) challenge on the basis of bias or new evidence. Is the outcome otherwise challengeable on the basis that it is simply incorrect or against the weight of the evidence?

§106.44k states: 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; What happens if the parties don’t abide by the Agreement after it is completed? Does this mean that the recipient cannot initiate or re-initiate the formal grievance process on the basis that the Agreement has effectively failed to remedy? How then is it supposed to remedy the discriminatory conduct, in OCR’s view?

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)?