*Best viewed on larger screens

Final Rule

Proposed Rule

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: Authority: 20 U.S.C. 1681 et seq., unless otherwise noted. 2. Section 106.3 is amended by revising the section heading and paragraph (a) to read as follows: § 106.3 AvailableRemedial remediesand affirmative action and self-evaluation. (a) Remedial action. If the Assistant Secretary finds that a recipient has violateddiscriminated thisagainst part,persons suchon recipientthe shallbasis takeof suchsex remedialin actionan aseducation theprogram Assistantor Secretaryactivity deemsunder necessarythis to remedy the violationpart, whichor shallotherwise notviolated includethis assessmentpart, ofsuch damagesrecipient againstmust thetake recipient.such Nothingremedial hereinaction prohibitsas the Assistant Secretary fromdeems deeming necessary equitable relief to remedy athe violation, ofconsistent thiswith part20 U.S.C. 1682. * * * * * 3. Section 106.6 is amended by revising the section heading and adding paragraphs (d), (e), and (f), (g), and (h) to read as follows: § 106.6 Effect of other requirements and preservation of rights. * * * * * (d) Constitutional protections. Nothing in this part requires a recipient to: (1) Restrict any rights that would otherwise be protected from government action by the First Amendment of the U.S. Constitution; (2) Deprive a person of any rights that would otherwise be protected from government action under the Due Process Clauses of the Fifth and Fourteenth Amendments of the U.S.Constitution; or (3) Restrict any other rights guaranteed against government action by the U.S. Constitution. (e) Effect of Section 444 of General Education Provisions Act (GEPA)/ Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g and 34 CFR part 99. The obligation to comply with this part is not obviated or alleviated by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99. (f) Title VII of the Civil Rights Act of 1964. Nothing in this part shallmay be read in derogation of anany employeeindividual’s rights under title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. or any regulations promulgated thereunder. (g) Exercise of rights by parents or guardians. Nothing in this part may be read in derogation of any legal right of a parent or guardian to act on behalf of a “complainant,” “respondent,” “party,” or other individual, subject to paragraph (e) of this section, including but not limited to filing a formal complaint. (h) Preemptive effect. To the extent of a conflict between State or local law and title IX as implemented by §§ 106.30, 106.44, and 106.45, the obligation to comply with §§ 106.30, 106.44, and 106.45 is not obviated or alleviated by any State or local law. * * * * * 4. Section 106.8 is revised to read as follows: § 106.8 Designation of coordinator, dissemination of policy, and adoption of grievance procedures. (a) Designation of coordinator. Each recipient must designate and authorize at least one employee to coordinate its efforts to comply with its responsibilities under this part., which employee must be referred to as the “Title IX Coordinator.” The recipient must notify allapplicantsfor itsadmission and employment, students, parents or legal guardians of elementary and secondary school students, employees, and all unions or professional organizations holding collective bargaining or professional agreements with the recipient, of the name or title, office address, electronic mail address, and telephone number of the employee or employees designated as the Title IX Coordinator pursuant to this paragraph. Any person may report sex discrimination, including sexual harassment (whether or not the person reporting is the person alleged to be the victim of conduct that could constitute sex discrimination or sexual harassment), in person, by mail, by telephone, or by electronic mail, using the contact information listed for the Title IX Coordinator, or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report. Such a report may be made at any time (including during non-business hours) by using the telephone number or electronic mail address, or by mail to the office address, listed for the Title IX Coordinator. (b) Dissemination of policy—(1) Notification of policy. Each recipient must notify applicantspersons forentitled admissionto anda employment,notification students,under employees,andparagraph all(a) unionsof orthis professionalsection organizationsthat holding collective bargaining or professional agreements with the recipient that it does not discriminate on the basis of sex in the education program or activity that it operates, and that it is required by title IX and this part not to discriminate in such a manner. Such notification must state that the requirement not to discriminate in the education program or activity extends to employment and admission (unless subpart C of this part does not apply) toand theemployment, recipient) and that inquiries about the application of title IX and this part to such recipient may be referred to the employeerecipient’s designatedTitle pursuantIX to paragraph (a) of this sectionCoordinator, to the Assistant Secretary, or both. (2) Publications. (i) Each recipient must prominently display the contact information required to be listed for the Title IX Coordinator under paragraph (a) statement of this section and the policy described in paragraph (b)(1) of this section on its website, if any, and in each handbookhandbookor or catalog that it makes available to persons entitled to a notification under paragraph (ba)(1) of this section. (ii) 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. (c) Adoption of grievance procedures. A recipient must adopt and publish grievance procedures that provide for the prompt and equitable resolution of student and employee complaints alleging any action that would be prohibited by this part and ofa grievance process that complies with § 106.45 for formal complaints as defined in § 106.30. A recipient must provide to persons entitled to a notification under paragraph (a) of this section notice of the recipient’s grievance procedures and grievance process, including how to report or file a complaint of sex discrimination, and how to filereport or respondfile to a formal complaint of sexsexual discriminationharassment, toand studentshow andthe employeesrecipient will respond. (d) Application outside the United States. The requirements thatof aparagraph recipient(c) adoptof athis policysection andapply grievanceonly proceduresto assex describeddiscrimination occurring against a person in thisthe sectionUnited applyStates. 5. onlySection 106.9 is revised to exclusionread fromas participation,follows: § denial106.9 Severability. If any provision of benefitsthis subpart or its application to any person, act, or discriminationpractice onis held invalid, the basisremainder of sexthe occurringsubpart againstor athe personapplication inof theits Unitedprovisions States. §to 106.9any [Removedperson, andact, Reserved] 5.or Sectionpractice 106.9shall isnot removedbe andaffected reservedthereby. 6. Section 106.12 is amended by revising paragraph (b) to read as follows: § 106.12 Educational institutions controlled by religious organizations. * * * * * (b) Assurance of exemption. An educational institution that seeks assurance of the exemption set forth in paragraph (a) of this section may do so by submitting in writing to the Assistant Secretary a statement by the highest ranking official of the institution, identifying the provisions of this part that conflict with a specific tenet of the religious organization. An institution is not required to seek assurance from the Assistant Secretary in order to assert such an exemption. In the event the Department notifies an institution that it is under investigation for noncompliance with this part and the institution wishes to assert an exemption set forth in paragraph (a) of this section, the institution may at that time raise its exemption by submitting in writing to the Assistant Secretary a statement by the highest ranking official of the institution, identifying the provisions of this part which conflict with a specific tenet of the religious organization, whether or not the institution had previously sought assurance of thean exemption from the Assistant Secretary. * * * * * 7. Add § 106.18 to subpart B to read as follows: § 106.18 Severability. If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice shall not be affected thereby. 8. Add § 106.24 to subpart C to read as follows: § 106.24 Severability. If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice shall not be affected thereby. 9. Add § 106.30 to subpart D to read as follows: § 106.30 Definitions. (a) As used in this subpartpart:Actual knowledge means notice of sexual harassment or allegations of sexual harassment to a recipient’s Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient, or to aany teacheremployee inof thean elementary and secondary context with regard to student-on-student harassmentschool. Imputation of knowledge based solely on respondeatvicarious superiorliability or constructive notice is insufficient to constitute actual knowledge. This standard is not met when the only official of the recipient with actual knowledge is also the respondent. The mere ability or obligation to report sexual harassment doesor notto qualifyinform ana employeestudent about how to report sexual harassment, evenor ifhaving thatbeen employeetrained isto ando officialso, does not qualify an individual as one who has authority to institute corrective measures on behalf of the recipient. “Notice” as used in this paragraph includes, but is not limited to, a report of sexual harassment to the Title IX Coordinator as described in § 106.8(a).Complainant means an individual who hasis reportedalleged beingto be the victim of conduct that could constitute sexual harassment.Consent. The Assistant Secretary will not require recipients to adopt a particular definition of consent with respect to sexual assault, as referenced in this section.Formal complaint means a document filed by a complainant or onsigned whoseby behalf the Title IX Coordinator hasalleging filedsexual harassment against a formalrespondent complaintand requesting that the recipient investigate the allegation of sexual harassment. ForAt purposesthe time of thisfiling definitiona formal complaint, thea personcomplainant must be participating in or attempting to whomparticipate in the individualeducation hasprogram reportedor mustactivity of the recipient with which the formal complaint is filed. A formal complaint may be filed with the Title IX Coordinator in person, by mail, or anotherby personelectronic mail, by using the contact information required to whombe noticelisted offor sexualthe harassmentTitle resultsIX inCoordinator under § 106.8(a), and by any additional method designated by the recipient’s. actualAs knowledgeused underin this section.Formalparagraph, complaintthe phrase “document filed by a complainant” means a document signedor electronic submission (such as by aelectronic complainantmail or through an online portal provided for this purpose by the recipient) that contains the complainant’s physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint. Where the Title IX Coordinator allegingsigns sexuala harassmentformal againstcomplaint, the Title IX Coordinator is not a respondentcomplainant aboutor conductotherwise withina itsparty educationunder programthis part or activityunder § 106.45, and requestingmust initiationcomply ofwith the recipient’srequirements grievanceof proceduresthis consistentpart, withincluding § 106.45(b)(1)(iii).Respondent means an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.Sexual harassment means conduct on the basis of sex that satisfies one or more of the following: (1) An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct; (2) Unwelcome conduct ondetermined theby basisa ofreasonable sexperson thatto isbe so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; or (3) Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” as defined in 34CFR34 668U.46S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8), or “stalking” as defined in 34 U.S.C. 12291(a)(30).Supportive measures means non- disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent before or after the filing of a formal complaint or where no formal complaint has been filed. Such measures are designed to restore or preserve equal access to the recipient’s education program or activity, without unreasonably burdening the other party;, including measures designed to protect the safety of all parties andor the recipient’s educational environment;, andor deter sexual harassment. Supportive measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures. The recipient must maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the ability of the institutionrecipient to provide the supportive measures. The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures. 8.(b) AddAs used in §§ 106.44 and 106.45: Elementary and secondary school means a local educational agency (LEA), as defined in the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act, a preschool, or a private elementary or secondary school.Postsecondary institution means an institution of graduate higher education as defined in § 106.2(l), an institution of undergraduate higher education as defined in § 106.2(m), an institution of professional education as defined in § 106.2(n), or an institution of vocational education as defined in § 106.2(o). 10. Add § 106.44 to subpart D to read as follows: § 106.44 Recipient’s response to sexual harassment. (a) General response to sexual harassment. A recipient with actual knowledge of sexual harassment in an education program or activity of the recipient against a person in the United States, must respond promptly in a manner that is not deliberately indifferent. A recipient is deliberately indifferent only if its response to sexual harassment is clearly unreasonable in light of the known circumstances. (b) SpecificFor circumstances.the (1)purposes Aof recipientthis mustsection, follow§§ procedures106.30, consistentand with § 106.45, in“education responseprogram toor aactivity” formalincludes complaint.locations, Ifevents, theor recipientcircumstances followsover procedures (includingwhich implementingthe anyrecipient appropriateexercised remedysubstantial ascontrol required)over consistentboth withthe §respondent 106.45and in response to a formal complaint, the recipient’scontext responsein towhich the formalsexual complaintharassment isoccurs, not deliberately indifferent and doesalso notincludes otherwiseany constitutebuilding discriminationowned underor titlecontrolled IX. (2)by When a recipientstudent hasorganization actualthat knowledgeis regardingofficially reportsrecognized by multiplea complainantspostsecondary ofinstitution. conductA byrecipient’s theresponse samemust respondenttreat thatcomplainants couldand constituterespondents sexualequitably harassment,by theoffering Titlesupportive IXmeasures Coordinatoras mustdefined filein a§ formal complaint106.30 Ifto the Title IX Coordinator files a formal complaint in response to the reportscomplainant, and theby recipientfollowing followsa proceduresgrievance (includingprocess implementingthat anycomplies appropriate remedy as required) consistent with § 106.45 inbefore responsethe toimposition theof formalany complaint,disciplinary thesanctions recipient’sor responseother toactions thethat reportsare is not deliberatelysupportive indifferent. (3)measures Foras institutionsdefined ofin higher§ education106.30, against a recipientrespondent. isThe notTitle deliberatelyIX indifferentCoordinator whenmust inpromptly contact the absencecomplainant ofto adiscuss formal complaint the recipientavailability offersof and implements supportive measures designedas todefined effectivelyin restore§ or106.30, preserveconsider the complainant’s accesswishes with respect to thesupportive recipient’smeasures, educationinform programthe orcomplainant activity.of At the timeavailability of supportive measures arewith offered,or without the recipientfiling mustof ina writingformal informcomplaint, and explain to the complainant of the rightprocess tofor filefiling a formal complaint. atThe thatDepartment timemay ornot adeem laterarecipient date,to consistenthave withsatisfied otherthe provisionsrecipient’s ofduty thisto part. (4)not Ifbe paragraphsdeliberately (b)(1)indifferent throughunder (3) of this sectionpart arebased noton implicated,the a recipient’s withrestriction actual knowledge of sexualrights harassmentprotected inunder anthe educationU.S. programConstitution, orincluding activity of the recipientFirst againstAmendment, aFifth personAmendment, inand theFourteenth UnitedAmendment. (b) StatesResponse must,to consistenta withformal paragraphcomplaint. (a1) ofIn thisresponse section,to respond in a mannerformal thatcomplaint, isa notrecipient deliberatelymust indifferent.follow Aa recipientgrievance isprocess deliberatelythat indifferentcomplies onlywith if§ its106.45. responseWith toor sexualwithout harassmenta isformal clearlycomplaint, unreasonablea inrecipient lightmust ofcomply thewith known§ circumstances106.44(a). (52) The Assistant Secretary will not deem a recipient’s determination regarding responsibility to be evidence of deliberate indifference by the recipient, merelyor otherwise evidence of discrimination under title IX by the recipient, solely because the Assistant Secretary would have reached a different determination based on an independent weighing of the evidence. (c) Emergency removal. Nothing in this sectionpart 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 immediate threat to the physical health or safety of studentsany student or employeesother individual arising from the allegations of sexual harassment justifies removal, and provides the respondent with notice and an opportunity to challenge the decision immediately following the removal. This provision shallmay not be construed to modify any rights under the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, or title II of the Americans with Disabilities Act. (d) Administrative leave. Nothing in this sectionsubpart precludes a recipient from placing a non-student employee respondent on administrative leave during the pendency of ana investigationgrievance process that complies with § 106.45. This provision may not be construed to modify any rights under Section 504 of the Rehabilitation Act of 1973 or the Americans with Disabilities Act. 11. Add § 106.45 to subpart D to read as follows: § 106.45 Grievance proceduresprocess for formal complaints of sexual harassment. (a) Discrimination on the basis of sex. A recipient’s treatment of a complainant or a respondent in response to a formal complaint of sexual harassment may constitute discrimination on the basis of sex under title IX. (b) AGrievance process. For the purpose of addressing formal complaints of sexual harassment, a recipient’s treatmentgrievance ofprocess must comply with the respondentrequirements mayof alsothis constitutesection. discriminationAny onprovisions, therules, basisor ofpractices sexother underthan titlethose IX. (b)required Grievanceby procedures.this Forsection thethat purposea recipient adopts as part of addressingits grievance process for handling formal complaints of sexual harassment, grievanceas proceduresdefined mustin comply§ with106.30, themust requirementsapply ofequally thisto sectionboth parties. (1) Basic requirements for grievance proceduresprocess. GrievanceA proceduresrecipient’s grievance process must— (i) Treat complainants and respondents equitably. Anby equitableproviding resolutionremedies forto a complainant must include remedies where a findingdetermination of responsibility for sexual harassment has been made against the respondent;, suchand remediesby following a grievance process that complies with this section before the imposition of any disciplinary sanctions or other actions that are not supportive measures as defined in § 106.30, against a respondent. Remedies must be designed to restore or preserve equal access to the recipient’s education program or activity. AnSuch equitableremedies resolutionmay forinclude athe respondentsame mustindividualized includeservices duedescribed processin protections§ before106.30 anyas “supportive measures”; however, remedies need not be non-disciplinary sanctionsor arenon-punitive imposedand need not avoid burdening the respondent; (ii) Require an objective evaluation of all relevant evidenceincluding both inculpatory and exculpatory evidence and provide that credibility determinations may not be based on a person’s status as a complainant, respondent, or witness; (iii) Require that any individual designated by a recipient as a coordinatorTitle IX Coordinator, investigator, or decision- maker, or any person designated by a recipient to facilitate an informal resolution process, not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent. A recipient must ensure that coordinatorsTitle IX Coordinators, investigators, and decision-makers, and any person who facilitates an informal resolution process, receive training on both the definition of sexual harassment andin § 106.30, the scope of the recipient’s education program or activity, how to conduct an investigation and grievance process, including hearings, ifappeals, and informal resolution processes, as applicable, thatand protecthow to serve impartially, including by avoiding prejudgment of the safetyfacts at issue, conflicts of studentsinterest, and bias. A recipient must ensure duethat processdecision-makers protectionsreceive fortraining allon partiesany technology to be used at a live hearing and on issues of relevance of questions and evidence, including when questions and promoteevidence accountabilityabout the complainant’s sexual predisposition or prior sexual behavior are not relevant, as set forth in paragraph (b)(6) of this section. A recipient also must ensure that investigators receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence, as set forth in paragraph (b)(5)(vii) of this section. Any materials used to train coordinatorsTitle IX Coordinators, investigators, or decision-makers, mayand any person who facilitates an informal resolution process, must not rely on sex stereotypes and must promote impartial investigations and adjudications of formal complaints of sexual harassment; (iv) Include a presumption that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process; (v) Include reasonably prompt timeframestime frames for conclusion of the grievance process, including reasonably prompt timeframestime frames for filing and resolving appeals and informal resolution processes if the recipient offers aninformal appealresolution processes, and a process that allows for thethetemporary temporary delay of the grievance process or the limited extension of timeframestime frames for good cause with written notice to the complainant and the respondent of the delay or extension and the reasons for the action. Good cause may include considerations such as the absence of thea partiesparty, ora witnessesparty’s advisor, or a witness; concurrent law enforcement activity,; or the need for language assistance or accommodation of disabilities; (vi) Describe the range of possible disciplinary sanctions and remedies or list the possible disciplinary sanctions and remedies that the recipient may implement following any determination of responsibility; (vii) DescribeState whether the standard of evidence to be used to determine responsibility is the preponderance of the evidence standard or the clear and convincing evidence standard, apply the same standard of evidence for formal complaints against students as for formal complaints against employees, including faculty, and apply the same standard of evidence to all formal complaints of sexual harassment; (viii) Include the procedures and permissible bases for the complainant and respondent to appeal if the recipient offers an appeal; and (ix) Describe the range of supportive measures available to complainants and respondents; and (x) Not require, allow, rely upon, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege. (2) Notice of allegations—(i) Notice upon receipt of formal complaint. Upon receipt of a formal complaint, a recipient must provide the following written notice to the parties who are known: (A) Notice of the recipient’s grievance proceduresprocess that complies with this section, including any informal resolution process. (B) Notice of the allegations constitutingof asexual potentialharassment violationpotentially ofconstituting thesexual recipient’sharassment codeas ofdefined conductin § 106.30, including sufficient details known at the time and with sufficient time to prepare a response before any initial interview. Sufficient details include the identities of the parties involved in the incident, if known, the specific section of the recipient’s code of conduct allegedly violated, the conduct allegedly constituting sexual harassment under this§ part and under the recipient’s code of conduct106.30, and the date and location of the alleged incident, if known. The written notice must include a statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process. The written notice must also inform the parties that they may requesthave an advisor of their choice, who may be, but is not required to be, an attorney, under paragraph (b)(5)(iv) of this section, and may inspect and review evidence under paragraph (b)(35)(viiivi) of this section. andThe written notice must inform the parties of any provision in the recipient’s code of conduct that prohibits knowingly making false statements or knowingly submitting false information during the grievance process. (ii) Ongoing notice requirement. If, in the course of an investigation, the recipient decides to investigate allegations about the complainant or respondent that are not included in the notice provided pursuant to paragraph (b)(2)(i)(B) of this section, the recipient must provide notice of the additional allegations to the parties, ifwhose identities are known. (3) InvestigationsDismissal of a formal complaint.—(i) The recipient must investigate the allegations in a formal complaint. If the conduct alleged byin the complainantformal complaint would not constitute sexual harassment as defined in § 106.30 even if proved, or did not occur withinin the recipient’s education program or activity, or did not occur against a person in the recipientUnited mustStates, then the recipientmust dismiss the formal complaint with regard to that conduct for purposes of sexual harassment under title IX or this part; such a dismissal does not preclude action under another provision of the recipient’s code of conduct. (ii) The recipient may dismiss the formal complaint or any allegations therein, if at any time during the investigation or hearing: a complainant notifies the Title IX Coordinator in writing that the complainant would like to withdraw the formal complaint or any allegations therein; the respondent is no longer enrolled or employed by the recipient; or specific circumstances prevent the recipient from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein. (iii) Upon a dismissal required or permitted pursuant to paragraph (b)(3)(i) or (b)(3)(ii) of this section, the recipient must promptly send written notice of the dismissal and reason(s) therefor simultaneously to the parties. (4) Consolidation of formal complaints. A recipient may consolidate formal complaints as to allegations of sexual harassment against more than one respondent, or by more than one complainant against one or more respondents, or by one party against the other party, where the allegations of sexual harassment arise out of the same facts or circumstances. Where a grievance process involves more than one complainant or more than one respondent, references in this section to the singular “party,” “complainant,” or “respondent” include the plural, as applicable. (5) Investigation of a formal complaint. When investigating a formal complaint and throughout the grievance process, a recipient must— (i) Ensure that the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rest on the recipient and not on the parties provided that the recipient cannot access, consider, disclose, or otherwise use a party’s recordsthat are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the recipient obtains that party’s voluntary, written consent to do so for a grievance process under this section (if a party is not an “eligible student,” as defined in 34 CFR 99.3, then the recipient must obtain the voluntary, written consent of a “parent,” as defined in 34 CFR 99.3); (ii) Provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence; (iii) Not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence; (iv) Provide the parties with the same opportunities to have others present during any grievance proceeding, including the opportunity to be accompanied to any related 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 advisor or presence for either the complainant or respondent in any meeting or grievance proceeding; however, the recipient may establish restrictions regarding the extent to which the advisor may participate in the proceedings, as long as the restrictions apply equally to both parties; (v) Provide, to thea party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings with a party, with sufficient time for the party to prepare to participate; (vi) ForProvide recipientsboth thatparties arean elementaryequal andopportunity secondaryto schools,inspect theand recipient’sreview grievanceany procedureevidence mayobtained requireas apart liveof hearing.the Withinvestigation orthat withoutis adirectly hearing,related to the decision-makerallegations must,raised afterin thea recipientformalcomplaint, hasincluding incorporated the parties’evidence responsesupon towhich the investigativerecipient reportdoes undernot paragraphintend (b)(3)(ix)to ofrely thisin section,reaching aska eachdetermination partyregarding responsibility and anyinculpatory witnessesor anyexculpatory relevantevidence questionswhether andobtained follow-upfrom questions,a includingparty thoseor challengingother credibilitysource, so that aeach party wantscan askedmeaningfully ofrespond anyto partythe orevidence witnessesprior to conclusion of the investigation. IfPrior noto hearingcompletion isof heldthe investigative report, the decision-makerrecipient must affordsend to each party and the opportunityparty’s advisor, if any, the evidence subject to submitinspection writtenand questions,review providein eachan partyelectronic withformat theor answersa hard copy, and allowthe forparties additional,must limitedhave follow-upat questionsleast from10 eachdays party.to Withsubmit ora withoutwritten a hearingresponse, allwhich suchthe questioninginvestigator mustwill excludeconsider evidenceprior to completion of the complainant’sinvestigative sexualreport. behaviorThe orrecipient predisposition,must unlessmake all such evidence aboutsubject to the complainantpartiess sexualinspection behaviorand isreview offeredavailable at any hearing to provegive thateach someoneparty otherequal thanopportunity theto respondentrefer committedto thesuch conductevidence allegedduring by the complainanthearing, orincluding iffor thepurposes evidenceof concernscross-examination; specificand (vii) incidentsCreate ofan theinvestigative complainant’sreport sexualthat behaviorfairly withsummarizes respectrelevant evidence and, at least 10 days prior to thea respondenthearing and(if a hearing is offeredrequired tounder provethis consent.section Theor decision-makerotherwise mustprovided) explainor other time of determination regarding responsibility, send to theeach party proposingand the questionsparty’s advisor, if any, decisionthe toinvestigative excludereport questionsin asan notelectronic relevant;format or a hard copy, for their review and written response. (vii6) ForHearings. institutions(i) ofFor higherpostsecondary educationinstitutions, the recipient’s grievance procedureprocess must provide for a live hearing. At the live hearing, the decision- maker(s) must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such cross-examination at athe live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally, notwithstanding the discretion of the recipient under paragraph (b)(35)(iv) of this section to otherwise restrict the extent to which advisors may participate in the proceedings. At the request of either party, the recipient must provide for the live hearing to occur with theparties located in separate rooms with technology enabling the decision-maker(s) and parties to simultaneously see and hear the party or the witness answering questions. Only relevant cross- examination and other questions may be asked of a party or witness. Before a complainant, respondent, or witness answers a cross-examination or other question, the decision-maker(s) must first determine whether the question is relevant and explain any decision to exclude a question as not relevant. If a party does not have an advisor present at the live hearing, the recipient must provide without fee or charge to that party, an advisor alignedof withthe thatrecipient’s partychoice, who may be, but is not required to be, an attorney, to conduct cross-examination. Allon cross-behalf examinationof mustthat excludeparty. Questions and evidence ofabout the complainant’s sexual behaviorpredisposition or predispositionprior sexual behavior are not relevant, unless such questions and evidence about the complainant’s prior sexual behavior isare offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the questions and evidence concernsconcern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and isare offered to prove consent. AtIf thea requestparty ofor eitherwitness partydoes not submit to cross-examination at the live hearing, the recipientdecision-maker(s) must providenot forrely cross-examinationon toany occurstatement withof thethat partiesparty locatedor witness in separatereaching roomsa withdetermination technologyregarding enablingresponsibility; provided, however, that the decision-maker(s) andcannot partiesdraw toan simultaneouslyinference seeabout andthe heardetermination theregarding partyresponsibility answeringbased questions.solely Theon decision-a makerparty’s mustor explainwitness’s toabsence from the party’slive advisorhearing askingor refusal to answer cross-examination or other questions. anyLive decisionhearings pursuant to excludethis questionsparagraph asmay notbe relevant.conducted Ifwith aall partyparties orphysically witnesspresent doesin notthe submitsame togeographic cross-location examinationor, at the hearingrecipient’s discretion, theany decision-makeror mustall notparties, relywitnesses, onand anyother statementparticipants ofmay thatappear partyat orthe witnesslive inhearing reachingvirtually, awith determinationtechnology regardingenabling responsibility; (viii)participants Providesimultaneously bothto partiessee anand equalhear opportunityeach toother. inspectRecipients andmust reviewcreate anyan evidenceaudioor obtainedaudiovisual asrecording, partor transcript, of theany investigationlive thathearing isand directlymake relatedit available to the allegationsparties raisedfor ininspection aand formalreview. (ii) complaint,For includingrecipients thethat evidenceare uponelementary whichand thesecondary recipientschools, doesand notother intendrecipients tothat relyare innot reachingpostsecondary ainstitutions, determinationthe regardingrecipient’s responsibilitygrievance process may, sobut thatneed eachnot, partyprovide canfor meaningfullya respondhearing. toWith theor evidencewithout priora tohearing, conclusionafter of the investigation.recipient Priorhas tosent completion of the investigative report, to the recipientparties mustpursuant send to eachparagraph party(b)(5)(vii) of this section and thebefore party’sreaching advisor,a ifdetermination anyregarding responsibility, the evidencedecision-maker(s) subjectmust toafford inspectioneach andparty reviewthe inopportunity anto electronicsubmit formatwritten, suchrelevant asquestions that a fileparty sharingwants platform,asked thatof restrictsany theparty partiesor andwitness, advisorsprovide fromeach downloadingparty orwith copying the evidenceanswers, and theallow partiesfor shalladditional, havelimited atfollow-up leastquestions tenfrom dayseach toparty. submitWith or without a written responsehearing, whichquestions theand investigatorevidence willabout considerthe priorcomplainant’s tosexual completionpredisposition ofor theprior investigativesexual report.behavior Theare recipientnot mustrelevant, makeunless all such evidencequestions subjectand hereinevidence toabout the partiescomplainants inspectionprior andsexual reviewbehavior availableare atoffered anyto hearingprove tothat givesomeone eachother partythan equalthe opportunityrespondent tocommitted referthe toconduct suchalleged evidenceby during the hearingcomplainant, includingor forif purposesthe ofquestions cross-examination; and (ix) Createevidence anconcern investigativespecific reportincidents thatof fairlythe summarizescomplainant’s relevantprior evidencesexual and,behavior atwith leastrespect ten days prior to athe hearingrespondent (ifand aare hearingoffered isto requiredprove underconsent. thisThe sectiondecision-maker(s) ormust otherexplain timeto ofthe determinationparty regardingproposing responsibility,the providequestions aany copydecision of the report to theexclude partiesa forquestion theiras reviewnot and written responserelevant. (47) Determination regarding responsibility. (i) The decision-maker(s), who cannot be the same person(s) as the Title IX Coordinator or the investigator(s), must issue a written determination regarding responsibility. To reach this determination, the recipient must apply either the preponderance of the evidence standard or the clear and convincing evidence standard, although the recipient may employ the preponderance of the evidence standarddescribed onlyin ifparagraph the(b)(1)(vii) recipient uses that standard for conduct code violations that do not involve sexual harassment but carry the same maximum disciplinary sanction. The recipient must also apply the same standard of evidencethis for complaints against students as it does for complaints against employees, including facultysection. (ii) The written determination must include— (A) Identification of the section(s)allegations ofpotentially theconstituting recipient’ssexual codeharassment ofas conductdefined in alleged§ to have been violated106.30; (B) A description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held; (C) Findings of fact supporting the determination; (D) Conclusions regarding the application of the recipient’s code of conduct to the facts; (E) A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions the recipient imposes on the respondent, and anywhether remedies provided by the recipient to the complainant designed to restore or preserve equal access to the recipient’s education program or activity will be provided by the recipient to the complainant; and (F) The recipient’s procedures and permissible bases for the complainant and respondent to appeal, if the recipient offers an appeal. (iii) The recipient must provide the written determination to the parties simultaneously. The If the recipient does not offer an appeal, the determination regarding responsibility becomes final either on the date that the recipient provides the parties with the written determination. Ifof the recipientresult offers an appeal, the determination regarding responsibility becomes final at either the conclusion of the appeal process, if an appeal is filed, or, if an appeal is not filed, the date on which an appeal would no longer be considered timely. (5iv) Appeals.The ATitle recipientIX mayCoordinator chooseis toresponsible offerfor aneffective appeal.implementation Ifof aany recipientremedies. (8) offersAppeals. an(i) appeal,A itrecipient must allowoffer both parties toan appeal. Infrom casesa wheredetermination thereregarding hasresponsibility, beenand from a findingrecipient’s dismissal of responsibility,a althoughformal acomplaint complainantor mayany appealallegations therein, on the groundfollowing bases: (A) Procedural irregularity that affected the remediesoutcome areof the matter; (B) New evidence that was not designedreasonably toavailable restoreat orthe preservetime the complainant’sdetermination accessregarding toresponsibility or dismissal was made, that could affect the recipient’soutcome educationof programthe ormatter; activityand (C) The Title IX Coordinator, investigator(s), or decision-maker(s) had a complainantconflict isof notinterest entitledor tobias afor particularor sanction against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter. (ii) A recipient may offer an appeal equally to both parties on additional bases. (iii) As to all appeals, the recipient must: (iA) Notify the other party in writing when an appeal is filed and implement appeal procedures equally for both parties; (iiB) Ensure that the appeal decision- maker(s) for the appeal is not the same person as anythe investigator(s) or decision-maker(s) that reached the determination ofregarding responsibility or dismissal, the investigator(s), or the Title IX Coordinator; (iiiC) Ensure that the appeal decision- maker(s) for the appeal complies with the standards set forth in paragraph (b)(1)(iii) of this section; (ivD) Give both parties a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome; (vE) Issue a written decision describing the result of the appeal and the rationale for the result; and (viF) Provide the written decision simultaneously to both parties. (69) Informal resolution. AtA recipient may not require as a condition of enrollment or continuing enrollment, or employment or continuing employment, or enjoyment of any other right, waiver of the right to an investigation and adjudication of formal complaints of sexual harassment consistent with this section. Similarly, a recipient may not require the parties toparticipate in an informal resolution process under this section and may not offer an informal resolution process unless a formal complaint is filed. However, at any time prior to reaching a determination regarding responsibility the recipient may facilitate an informal resolution process, such as mediation, that does not involve a full investigation and adjudication, provided that the recipient (i) Provides to the parties a written notice disclosing— (A): Thethe allegations; (B), Thethe requirements of the informal resolution process including the circumstances under which it precludes the parties from resuming a formal complaint arising from the same allegations, ifprovided, however, that at any; time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and (C) Anyresume the grievance process with respect to the formal complaint, and any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared; and (ii) Obtains the parties’ voluntary, written consent to the informal resolution process.; and (7iii) RecordDoes keeping.not (i)offer Aor recipientfacilitate mustan create,informal makeresolution availableprocess to theresolve complainantallegations andthat respondent,an andemployee sexually harassed a student. (10) Recordkeeping. (i) A recipient must maintain for a period of threeseven years records of (A) Each sexual harassment investigation including any determination regarding responsibility and any audio or audiovisual recording or transcript required under paragraph (b)(6)(i) of this section, any disciplinary sanctions imposed on the respondent, and any remedies provided to the complainant designed to restore or preserve equal access to the recipient’s education program or activity; (B) Any appeal and the result therefrom; (C) InformalAny informal resolution, ifand anythe result therefrom; and (D) All materials used to train coordinatorsTitle IX Coordinators, investigators, and decision-makers, withand regardany toperson sexualwho harassmentfacilitates an informal resolution process. 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. (ii) AFor each response required under § 106.44, a recipient must create, and maintain for a period of threeseven years, records of any actions, including any supportive measures, taken in response to a report or formal complaint of sexual harassment. In each instance, the recipient must document the basis for its conclusion that its response was not clearlydeliberately unreasonableindifferent, and document that it has taken measures designed to restore or preserve equal access to the recipient’s educationaleducation program or activity. If a recipient does not provide a complainant with supportive measures, then the recipient must document the reasons why such a response was not clearly unreasonable in light of the known circumstances. The documentation of certain bases or measures does not limit the recipient in the future from providing additional explanations or detailing additional measures taken.[FR 12. DocAdd § 106.46 2018to subpart D to read as follows: § 106.46 Severability. If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice shall not be affected thereby. 13. Add § 106.62 to subpart E to read as follows: § 106.62 Severability. If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice shall not be affected thereby. 14. Subpart F is revised to read as follows: Subpart F25314Retaliation Sec. 106.71 FiledRetaliation 106.72 11Severability Subpart F28–18;Retaliation § 106.71 Retaliation. (a) Retaliation prohibited. No recipient or other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by title IX or this part, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this part. Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by title IX or this part, constitutes retaliation. The recipient must keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report orfiled a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as may be permitted by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder. Complaints alleging retaliation may be filed according to the grievance procedures for sex discrimination required to be adopted under § 106.8(c). (b) Specific circumstances. (1) The exercise of rights protected under the First Amendment does not constitute retaliation prohibited under paragraph (a) of this section. (2) Charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a grievance proceeding under this part does not constitute retaliation prohibited under paragraph (a) of this section, provided, however, that a determination regarding responsibility, alone, is not sufficient to conclude that any party made a materially false statement in bad faith. § 106.72 Severability. If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice shall not be affected thereby. 15. Add subpart G to read as follows:45 Subpart amG – Procedures Sec. 106.81 Procedures 106.82 Severability 2033Subpart G – Procedures § 106.81 Procedures.The procedural provisions applicable to title VI of the Civil Rights Act of 1964 are hereby adopted and incorporated herein by reference. These procedures may be found at 34 CFR 100.6-100.11 and 34 CFR part 101. The definitions in § 106.30 do not apply to 34 CFR 100.6- 100.11 and 34 CFR part 101. § 106.82 Severability. If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice shall not be affected thereby.Subject Index to Title IX Preamble and Regulation [Removed]BILLING 16. CODERemove 4000–01–Pthe Subject Index to Title IX Preamble and Regulation. 17. In addition to the amendments set forth above, in 34 CFR part 106, remove the parenthetical authority citation at the ends of §§ 106.1, 106.2, 106.3, 106.4, 106.5, 106.6, 106.7, , 106.11, 106.12, 106.13, 106.14, 106.15, 106.16, 106.17, 106.21, 106.22, 106.23, 106.31, 106.32, 106.33, 106.34, 106.35, 106.36, 106.37, 106.38, 106.39, 106.40, 106.41, 106.42, 106.43, 106.51, 106.52, 106.53, 106.54, 106.55, 106.56, 106.57, 106.58, 106.59, 106.60, and 106.61.
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: Authority: 20 U.S.C. 1681 et seq., unless otherwise noted. 2. Section 106.3 is amended by revising the section heading and paragraph (a) to read as follows: § 106.3 AvailableRemedial remediesand affirmative action and self-evaluation. (a) Remedial action. If the Assistant Secretary finds that a recipient has violateddiscriminated thisagainst part,persons suchon recipientthe shallbasis takeof suchsex remedialin actionan aseducation theprogram Assistantor Secretaryactivity deemsunder necessarythis to remedy the violationpart, whichor shallotherwise notviolated includethis assessmentpart, ofsuch damagesrecipient againstmust thetake recipient.such Nothingremedial hereinaction prohibitsas the Assistant Secretary fromdeems deeming necessary equitable relief to remedy athe violation, ofconsistent thiswith part20 U.S.C. 1682. * * * * * 3. Section 106.6 is amended by revising the section heading and adding paragraphs (d), (e), and (f), (g), and (h) to read as follows: § 106.6 Effect of other requirements and preservation of rights. * * * * * (d) Constitutional protections. Nothing in this part requires a recipient to: (1) Restrict any rights that would otherwise be protected from government action by the First Amendment of the U.S. Constitution; (2) Deprive a person of any rights that would otherwise be protected from government action under the Due Process Clauses of the Fifth and Fourteenth Amendments of the U.S.Constitution; or (3) Restrict any other rights guaranteed against government action by the U.S. Constitution. (e) Effect of Section 444 of General Education Provisions Act (GEPA)/ Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g and 34 CFR part 99. The obligation to comply with this part is not obviated or alleviated by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99. (f) Title VII of the Civil Rights Act of 1964. Nothing in this part shallmay be read in derogation of anany employeeindividual’s rights under title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. or any regulations promulgated thereunder. (g) Exercise of rights by parents or guardians. Nothing in this part may be read in derogation of any legal right of a parent or guardian to act on behalf of a “complainant,” “respondent,” “party,” or other individual, subject to paragraph (e) of this section, including but not limited to filing a formal complaint. (h) Preemptive effect. To the extent of a conflict between State or local law and title IX as implemented by §§ 106.30, 106.44, and 106.45, the obligation to comply with §§ 106.30, 106.44, and 106.45 is not obviated or alleviated by any State or local law. * * * * * 4. Section 106.8 is revised to read as follows: § 106.8 Designation of coordinator, dissemination of policy, and adoption of grievance procedures. (a) Designation of coordinator. Each recipient must designate and authorize at least one employee to coordinate its efforts to comply with its responsibilities under this part., which employee must be referred to as the “Title IX Coordinator.” The recipient must notify allapplicantsfor itsadmission and employment, students, parents or legal guardians of elementary and secondary school students, employees, and all unions or professional organizations holding collective bargaining or professional agreements with the recipient, of the name or title, office address, electronic mail address, and telephone number of the employee or employees designated as the Title IX Coordinator pursuant to this paragraph. Any person may report sex discrimination, including sexual harassment (whether or not the person reporting is the person alleged to be the victim of conduct that could constitute sex discrimination or sexual harassment), in person, by mail, by telephone, or by electronic mail, using the contact information listed for the Title IX Coordinator, or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report. Such a report may be made at any time (including during non-business hours) by using the telephone number or electronic mail address, or by mail to the office address, listed for the Title IX Coordinator. (b) Dissemination of policy—(1) Notification of policy. Each recipient must notify applicantspersons forentitled admissionto anda employment,notification students,under employees,andparagraph all(a) unionsof orthis professionalsection organizationsthat holding collective bargaining or professional agreements with the recipient that it does not discriminate on the basis of sex in the education program or activity that it operates, and that it is required by title IX and this part not to discriminate in such a manner. Such notification must state that the requirement not to discriminate in the education program or activity extends to employment and admission (unless subpart C of this part does not apply) toand theemployment, recipient) and that inquiries about the application of title IX and this part to such recipient may be referred to the employeerecipient’s designatedTitle pursuantIX to paragraph (a) of this sectionCoordinator, to the Assistant Secretary, or both. (2) Publications. (i) Each recipient must prominently display the contact information required to be listed for the Title IX Coordinator under paragraph (a) statement of this section and the policy described in paragraph (b)(1) of this section on its website, if any, and in each handbookhandbookor or catalog that it makes available to persons entitled to a notification under paragraph (ba)(1) of this section. (ii) 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. (c) Adoption of grievance procedures. A recipient must adopt and publish grievance procedures that provide for the prompt and equitable resolution of student and employee complaints alleging any action that would be prohibited by this part and ofa grievance process that complies with § 106.45 for formal complaints as defined in § 106.30. A recipient must provide to persons entitled to a notification under paragraph (a) of this section notice of the recipient’s grievance procedures and grievance process, including how to report or file a complaint of sex discrimination, and how to filereport or respondfile to a formal complaint of sexsexual discriminationharassment, toand studentshow andthe employeesrecipient will respond. (d) Application outside the United States. The requirements thatof aparagraph recipient(c) adoptof athis policysection andapply grievanceonly proceduresto assex describeddiscrimination occurring against a person in thisthe sectionUnited applyStates. 5. onlySection 106.9 is revised to exclusionread fromas participation,follows: § denial106.9 Severability. If any provision of benefitsthis subpart or its application to any person, act, or discriminationpractice onis held invalid, the basisremainder of sexthe occurringsubpart againstor athe personapplication inof theits Unitedprovisions States. §to 106.9any [Removedperson, andact, Reserved] 5.or Sectionpractice 106.9shall isnot removedbe andaffected reservedthereby. 6. Section 106.12 is amended by revising paragraph (b) to read as follows: § 106.12 Educational institutions controlled by religious organizations. * * * * * (b) Assurance of exemption. An educational institution that seeks assurance of the exemption set forth in paragraph (a) of this section may do so by submitting in writing to the Assistant Secretary a statement by the highest ranking official of the institution, identifying the provisions of this part that conflict with a specific tenet of the religious organization. An institution is not required to seek assurance from the Assistant Secretary in order to assert such an exemption. In the event the Department notifies an institution that it is under investigation for noncompliance with this part and the institution wishes to assert an exemption set forth in paragraph (a) of this section, the institution may at that time raise its exemption by submitting in writing to the Assistant Secretary a statement by the highest ranking official of the institution, identifying the provisions of this part which conflict with a specific tenet of the religious organization, whether or not the institution had previously sought assurance of thean exemption from the Assistant Secretary. * * * * * 7. Add § 106.18 to subpart B to read as follows: § 106.18 Severability. If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice shall not be affected thereby. 8. Add § 106.24 to subpart C to read as follows: § 106.24 Severability. If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice shall not be affected thereby. 9. Add § 106.30 to subpart D to read as follows: § 106.30 Definitions. (a) As used in this subpartpart:Actual knowledge means notice of sexual harassment or allegations of sexual harassment to a recipient’s Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient, or to aany teacheremployee inof thean elementary and secondary context with regard to student-on-student harassmentschool. Imputation of knowledge based solely on respondeatvicarious superiorliability or constructive notice is insufficient to constitute actual knowledge. This standard is not met when the only official of the recipient with actual knowledge is also the respondent. The mere ability or obligation to report sexual harassment doesor notto qualifyinform ana employeestudent about how to report sexual harassment, evenor ifhaving thatbeen employeetrained isto ando officialso, does not qualify an individual as one who has authority to institute corrective measures on behalf of the recipient. “Notice” as used in this paragraph includes, but is not limited to, a report of sexual harassment to the Title IX Coordinator as described in § 106.8(a).Complainant means an individual who hasis reportedalleged beingto be the victim of conduct that could constitute sexual harassment.Consent. The Assistant Secretary will not require recipients to adopt a particular definition of consent with respect to sexual assault, as referenced in this section.Formal complaint means a document filed by a complainant or onsigned whoseby behalf the Title IX Coordinator hasalleging filedsexual harassment against a formalrespondent complaintand requesting that the recipient investigate the allegation of sexual harassment. ForAt purposesthe time of thisfiling definitiona formal complaint, thea personcomplainant must be participating in or attempting to whomparticipate in the individualeducation hasprogram reportedor mustactivity of the recipient with which the formal complaint is filed. A formal complaint may be filed with the Title IX Coordinator in person, by mail, or anotherby personelectronic mail, by using the contact information required to whombe noticelisted offor sexualthe harassmentTitle resultsIX inCoordinator under § 106.8(a), and by any additional method designated by the recipient’s. actualAs knowledgeused underin this section.Formalparagraph, complaintthe phrase “document filed by a complainant” means a document signedor electronic submission (such as by aelectronic complainantmail or through an online portal provided for this purpose by the recipient) that contains the complainant’s physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint. Where the Title IX Coordinator allegingsigns sexuala harassmentformal againstcomplaint, the Title IX Coordinator is not a respondentcomplainant aboutor conductotherwise withina itsparty educationunder programthis part or activityunder § 106.45, and requestingmust initiationcomply ofwith the recipient’srequirements grievanceof proceduresthis consistentpart, withincluding § 106.45(b)(1)(iii).Respondent means an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.Sexual harassment means conduct on the basis of sex that satisfies one or more of the following: (1) An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct; (2) Unwelcome conduct ondetermined theby basisa ofreasonable sexperson thatto isbe so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; or (3) Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” as defined in 34CFR34 668U.46S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8), or “stalking” as defined in 34 U.S.C. 12291(a)(30).Supportive measures means non- disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent before or after the filing of a formal complaint or where no formal complaint has been filed. Such measures are designed to restore or preserve equal access to the recipient’s education program or activity, without unreasonably burdening the other party;, including measures designed to protect the safety of all parties andor the recipient’s educational environment;, andor deter sexual harassment. Supportive measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures. The recipient must maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the ability of the institutionrecipient to provide the supportive measures. The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures. 8.(b) AddAs used in §§ 106.44 and 106.45: Elementary and secondary school means a local educational agency (LEA), as defined in the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act, a preschool, or a private elementary or secondary school.Postsecondary institution means an institution of graduate higher education as defined in § 106.2(l), an institution of undergraduate higher education as defined in § 106.2(m), an institution of professional education as defined in § 106.2(n), or an institution of vocational education as defined in § 106.2(o). 10. Add § 106.44 to subpart D to read as follows: § 106.44 Recipient’s response to sexual harassment. (a) General response to sexual harassment. A recipient with actual knowledge of sexual harassment in an education program or activity of the recipient against a person in the United States, must respond promptly in a manner that is not deliberately indifferent. A recipient is deliberately indifferent only if its response to sexual harassment is clearly unreasonable in light of the known circumstances. (b) SpecificFor circumstances.the (1)purposes Aof recipientthis mustsection, follow§§ procedures106.30, consistentand with § 106.45, in“education responseprogram toor aactivity” formalincludes complaint.locations, Ifevents, theor recipientcircumstances followsover procedures (includingwhich implementingthe anyrecipient appropriateexercised remedysubstantial ascontrol required)over consistentboth withthe §respondent 106.45and in response to a formal complaint, the recipient’scontext responsein towhich the formalsexual complaintharassment isoccurs, not deliberately indifferent and doesalso notincludes otherwiseany constitutebuilding discriminationowned underor titlecontrolled IX. (2)by When a recipientstudent hasorganization actualthat knowledgeis regardingofficially reportsrecognized by multiplea complainantspostsecondary ofinstitution. conductA byrecipient’s theresponse samemust respondenttreat thatcomplainants couldand constituterespondents sexualequitably harassment,by theoffering Titlesupportive IXmeasures Coordinatoras mustdefined filein a§ formal complaint106.30 Ifto the Title IX Coordinator files a formal complaint in response to the reportscomplainant, and theby recipientfollowing followsa proceduresgrievance (includingprocess implementingthat anycomplies appropriate remedy as required) consistent with § 106.45 inbefore responsethe toimposition theof formalany complaint,disciplinary thesanctions recipient’sor responseother toactions thethat reportsare is not deliberatelysupportive indifferent. (3)measures Foras institutionsdefined ofin higher§ education106.30, against a recipientrespondent. isThe notTitle deliberatelyIX indifferentCoordinator whenmust inpromptly contact the absencecomplainant ofto adiscuss formal complaint the recipientavailability offersof and implements supportive measures designedas todefined effectivelyin restore§ or106.30, preserveconsider the complainant’s accesswishes with respect to thesupportive recipient’smeasures, educationinform programthe orcomplainant activity.of At the timeavailability of supportive measures arewith offered,or without the recipientfiling mustof ina writingformal informcomplaint, and explain to the complainant of the rightprocess tofor filefiling a formal complaint. atThe thatDepartment timemay ornot adeem laterarecipient date,to consistenthave withsatisfied otherthe provisionsrecipient’s ofduty thisto part. (4)not Ifbe paragraphsdeliberately (b)(1)indifferent throughunder (3) of this sectionpart arebased noton implicated,the a recipient’s withrestriction actual knowledge of sexualrights harassmentprotected inunder anthe educationU.S. programConstitution, orincluding activity of the recipientFirst againstAmendment, aFifth personAmendment, inand theFourteenth UnitedAmendment. (b) StatesResponse must,to consistenta withformal paragraphcomplaint. (a1) ofIn thisresponse section,to respond in a mannerformal thatcomplaint, isa notrecipient deliberatelymust indifferent.follow Aa recipientgrievance isprocess deliberatelythat indifferentcomplies onlywith if§ its106.45. responseWith toor sexualwithout harassmenta isformal clearlycomplaint, unreasonablea inrecipient lightmust ofcomply thewith known§ circumstances106.44(a). (52) The Assistant Secretary will not deem a recipient’s determination regarding responsibility to be evidence of deliberate indifference by the recipient, merelyor otherwise evidence of discrimination under title IX by the recipient, solely because the Assistant Secretary would have reached a different determination based on an independent weighing of the evidence. (c) Emergency removal. Nothing in this sectionpart 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 immediate threat to the physical health or safety of studentsany student or employeesother individual arising from the allegations of sexual harassment justifies removal, and provides the respondent with notice and an opportunity to challenge the decision immediately following the removal. This provision shallmay not be construed to modify any rights under the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, or title II of the Americans with Disabilities Act. (d) Administrative leave. Nothing in this sectionsubpart precludes a recipient from placing a non-student employee respondent on administrative leave during the pendency of ana investigationgrievance process that complies with § 106.45. This provision may not be construed to modify any rights under Section 504 of the Rehabilitation Act of 1973 or the Americans with Disabilities Act. 11. Add § 106.45 to subpart D to read as follows: § 106.45 Grievance proceduresprocess for formal complaints of sexual harassment. (a) Discrimination on the basis of sex. A recipient’s treatment of a complainant or a respondent in response to a formal complaint of sexual harassment may constitute discrimination on the basis of sex under title IX. (b) AGrievance process. For the purpose of addressing formal complaints of sexual harassment, a recipient’s treatmentgrievance ofprocess must comply with the respondentrequirements mayof alsothis constitutesection. discriminationAny onprovisions, therules, basisor ofpractices sexother underthan titlethose IX. (b)required Grievanceby procedures.this Forsection thethat purposea recipient adopts as part of addressingits grievance process for handling formal complaints of sexual harassment, grievanceas proceduresdefined mustin comply§ with106.30, themust requirementsapply ofequally thisto sectionboth parties. (1) Basic requirements for grievance proceduresprocess. GrievanceA proceduresrecipient’s grievance process must— (i) Treat complainants and respondents equitably. Anby equitableproviding resolutionremedies forto a complainant must include remedies where a findingdetermination of responsibility for sexual harassment has been made against the respondent;, suchand remediesby following a grievance process that complies with this section before the imposition of any disciplinary sanctions or other actions that are not supportive measures as defined in § 106.30, against a respondent. Remedies must be designed to restore or preserve equal access to the recipient’s education program or activity. AnSuch equitableremedies resolutionmay forinclude athe respondentsame mustindividualized includeservices duedescribed processin protections§ before106.30 anyas “supportive measures”; however, remedies need not be non-disciplinary sanctionsor arenon-punitive imposedand need not avoid burdening the respondent; (ii) Require an objective evaluation of all relevant evidenceincluding both inculpatory and exculpatory evidence and provide that credibility determinations may not be based on a person’s status as a complainant, respondent, or witness; (iii) Require that any individual designated by a recipient as a coordinatorTitle IX Coordinator, investigator, or decision- maker, or any person designated by a recipient to facilitate an informal resolution process, not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent. A recipient must ensure that coordinatorsTitle IX Coordinators, investigators, and decision-makers, and any person who facilitates an informal resolution process, receive training on both the definition of sexual harassment andin § 106.30, the scope of the recipient’s education program or activity, how to conduct an investigation and grievance process, including hearings, ifappeals, and informal resolution processes, as applicable, thatand protecthow to serve impartially, including by avoiding prejudgment of the safetyfacts at issue, conflicts of studentsinterest, and bias. A recipient must ensure duethat processdecision-makers protectionsreceive fortraining allon partiesany technology to be used at a live hearing and on issues of relevance of questions and evidence, including when questions and promoteevidence accountabilityabout the complainant’s sexual predisposition or prior sexual behavior are not relevant, as set forth in paragraph (b)(6) of this section. A recipient also must ensure that investigators receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence, as set forth in paragraph (b)(5)(vii) of this section. Any materials used to train coordinatorsTitle IX Coordinators, investigators, or decision-makers, mayand any person who facilitates an informal resolution process, must not rely on sex stereotypes and must promote impartial investigations and adjudications of formal complaints of sexual harassment; (iv) Include a presumption that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process; (v) Include reasonably prompt timeframestime frames for conclusion of the grievance process, including reasonably prompt timeframestime frames for filing and resolving appeals and informal resolution processes if the recipient offers aninformal appealresolution processes, and a process that allows for thethetemporary temporary delay of the grievance process or the limited extension of timeframestime frames for good cause with written notice to the complainant and the respondent of the delay or extension and the reasons for the action. Good cause may include considerations such as the absence of thea partiesparty, ora witnessesparty’s advisor, or a witness; concurrent law enforcement activity,; or the need for language assistance or accommodation of disabilities; (vi) Describe the range of possible disciplinary sanctions and remedies or list the possible disciplinary sanctions and remedies that the recipient may implement following any determination of responsibility; (vii) DescribeState whether the standard of evidence to be used to determine responsibility is the preponderance of the evidence standard or the clear and convincing evidence standard, apply the same standard of evidence for formal complaints against students as for formal complaints against employees, including faculty, and apply the same standard of evidence to all formal complaints of sexual harassment; (viii) Include the procedures and permissible bases for the complainant and respondent to appeal if the recipient offers an appeal; and (ix) Describe the range of supportive measures available to complainants and respondents; and (x) Not require, allow, rely upon, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege. (2) Notice of allegations—(i) Notice upon receipt of formal complaint. Upon receipt of a formal complaint, a recipient must provide the following written notice to the parties who are known: (A) Notice of the recipient’s grievance proceduresprocess that complies with this section, including any informal resolution process. (B) Notice of the allegations constitutingof asexual potentialharassment violationpotentially ofconstituting thesexual recipient’sharassment codeas ofdefined conductin § 106.30, including sufficient details known at the time and with sufficient time to prepare a response before any initial interview. Sufficient details include the identities of the parties involved in the incident, if known, the specific section of the recipient’s code of conduct allegedly violated, the conduct allegedly constituting sexual harassment under this§ part and under the recipient’s code of conduct106.30, and the date and location of the alleged incident, if known. The written notice must include a statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process. The written notice must also inform the parties that they may requesthave an advisor of their choice, who may be, but is not required to be, an attorney, under paragraph (b)(5)(iv) of this section, and may inspect and review evidence under paragraph (b)(35)(viiivi) of this section. andThe written notice must inform the parties of any provision in the recipient’s code of conduct that prohibits knowingly making false statements or knowingly submitting false information during the grievance process. (ii) Ongoing notice requirement. If, in the course of an investigation, the recipient decides to investigate allegations about the complainant or respondent that are not included in the notice provided pursuant to paragraph (b)(2)(i)(B) of this section, the recipient must provide notice of the additional allegations to the parties, ifwhose identities are known. (3) InvestigationsDismissal of a formal complaint.—(i) The recipient must investigate the allegations in a formal complaint. If the conduct alleged byin the complainantformal complaint would not constitute sexual harassment as defined in § 106.30 even if proved, or did not occur withinin the recipient’s education program or activity, or did not occur against a person in the recipientUnited mustStates, then the recipientmust dismiss the formal complaint with regard to that conduct for purposes of sexual harassment under title IX or this part; such a dismissal does not preclude action under another provision of the recipient’s code of conduct. (ii) The recipient may dismiss the formal complaint or any allegations therein, if at any time during the investigation or hearing: a complainant notifies the Title IX Coordinator in writing that the complainant would like to withdraw the formal complaint or any allegations therein; the respondent is no longer enrolled or employed by the recipient; or specific circumstances prevent the recipient from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein. (iii) Upon a dismissal required or permitted pursuant to paragraph (b)(3)(i) or (b)(3)(ii) of this section, the recipient must promptly send written notice of the dismissal and reason(s) therefor simultaneously to the parties. (4) Consolidation of formal complaints. A recipient may consolidate formal complaints as to allegations of sexual harassment against more than one respondent, or by more than one complainant against one or more respondents, or by one party against the other party, where the allegations of sexual harassment arise out of the same facts or circumstances. Where a grievance process involves more than one complainant or more than one respondent, references in this section to the singular “party,” “complainant,” or “respondent” include the plural, as applicable. (5) Investigation of a formal complaint. When investigating a formal complaint and throughout the grievance process, a recipient must— (i) Ensure that the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rest on the recipient and not on the parties provided that the recipient cannot access, consider, disclose, or otherwise use a party’s recordsthat are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the recipient obtains that party’s voluntary, written consent to do so for a grievance process under this section (if a party is not an “eligible student,” as defined in 34 CFR 99.3, then the recipient must obtain the voluntary, written consent of a “parent,” as defined in 34 CFR 99.3); (ii) Provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence; (iii) Not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence; (iv) Provide the parties with the same opportunities to have others present during any grievance proceeding, including the opportunity to be accompanied to any related 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 advisor or presence for either the complainant or respondent in any meeting or grievance proceeding; however, the recipient may establish restrictions regarding the extent to which the advisor may participate in the proceedings, as long as the restrictions apply equally to both parties; (v) Provide, to thea party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings with a party, with sufficient time for the party to prepare to participate; (vi) ForProvide recipientsboth thatparties arean elementaryequal andopportunity secondaryto schools,inspect theand recipient’sreview grievanceany procedureevidence mayobtained requireas apart liveof hearing.the Withinvestigation orthat withoutis adirectly hearing,related to the decision-makerallegations must,raised afterin thea recipientformalcomplaint, hasincluding incorporated the parties’evidence responsesupon towhich the investigativerecipient reportdoes undernot paragraphintend (b)(3)(ix)to ofrely thisin section,reaching aska eachdetermination partyregarding responsibility and anyinculpatory witnessesor anyexculpatory relevantevidence questionswhether andobtained follow-upfrom questions,a includingparty thoseor challengingother credibilitysource, so that aeach party wantscan askedmeaningfully ofrespond anyto partythe orevidence witnessesprior to conclusion of the investigation. IfPrior noto hearingcompletion isof heldthe investigative report, the decision-makerrecipient must affordsend to each party and the opportunityparty’s advisor, if any, the evidence subject to submitinspection writtenand questions,review providein eachan partyelectronic withformat theor answersa hard copy, and allowthe forparties additional,must limitedhave follow-upat questionsleast from10 eachdays party.to Withsubmit ora withoutwritten a hearingresponse, allwhich suchthe questioninginvestigator mustwill excludeconsider evidenceprior to completion of the complainant’sinvestigative sexualreport. behaviorThe orrecipient predisposition,must unlessmake all such evidence aboutsubject to the complainantpartiess sexualinspection behaviorand isreview offeredavailable at any hearing to provegive thateach someoneparty otherequal thanopportunity theto respondentrefer committedto thesuch conductevidence allegedduring by the complainanthearing, orincluding iffor thepurposes evidenceof concernscross-examination; specificand (vii) incidentsCreate ofan theinvestigative complainant’sreport sexualthat behaviorfairly withsummarizes respectrelevant evidence and, at least 10 days prior to thea respondenthearing and(if a hearing is offeredrequired tounder provethis consent.section Theor decision-makerotherwise mustprovided) explainor other time of determination regarding responsibility, send to theeach party proposingand the questionsparty’s advisor, if any, decisionthe toinvestigative excludereport questionsin asan notelectronic relevant;format or a hard copy, for their review and written response. (vii6) ForHearings. institutions(i) ofFor higherpostsecondary educationinstitutions, the recipient’s grievance procedureprocess must provide for a live hearing. At the live hearing, the decision- maker(s) must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such cross-examination at athe live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally, notwithstanding the discretion of the recipient under paragraph (b)(35)(iv) of this section to otherwise restrict the extent to which advisors may participate in the proceedings. At the request of either party, the recipient must provide for the live hearing to occur with theparties located in separate rooms with technology enabling the decision-maker(s) and parties to simultaneously see and hear the party or the witness answering questions. Only relevant cross- examination and other questions may be asked of a party or witness. Before a complainant, respondent, or witness answers a cross-examination or other question, the decision-maker(s) must first determine whether the question is relevant and explain any decision to exclude a question as not relevant. If a party does not have an advisor present at the live hearing, the recipient must provide without fee or charge to that party, an advisor alignedof withthe thatrecipient’s partychoice, who may be, but is not required to be, an attorney, to conduct cross-examination. Allon cross-behalf examinationof mustthat excludeparty. Questions and evidence ofabout the complainant’s sexual behaviorpredisposition or predispositionprior sexual behavior are not relevant, unless such questions and evidence about the complainant’s prior sexual behavior isare offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the questions and evidence concernsconcern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and isare offered to prove consent. AtIf thea requestparty ofor eitherwitness partydoes not submit to cross-examination at the live hearing, the recipientdecision-maker(s) must providenot forrely cross-examinationon toany occurstatement withof thethat partiesparty locatedor witness in separatereaching roomsa withdetermination technologyregarding enablingresponsibility; provided, however, that the decision-maker(s) andcannot partiesdraw toan simultaneouslyinference seeabout andthe heardetermination theregarding partyresponsibility answeringbased questions.solely Theon decision-a makerparty’s mustor explainwitness’s toabsence from the party’slive advisorhearing askingor refusal to answer cross-examination or other questions. anyLive decisionhearings pursuant to excludethis questionsparagraph asmay notbe relevant.conducted Ifwith aall partyparties orphysically witnesspresent doesin notthe submitsame togeographic cross-location examinationor, at the hearingrecipient’s discretion, theany decision-makeror mustall notparties, relywitnesses, onand anyother statementparticipants ofmay thatappear partyat orthe witnesslive inhearing reachingvirtually, awith determinationtechnology regardingenabling responsibility; (viii)participants Providesimultaneously bothto partiessee anand equalhear opportunityeach toother. inspectRecipients andmust reviewcreate anyan evidenceaudioor obtainedaudiovisual asrecording, partor transcript, of theany investigationlive thathearing isand directlymake relatedit available to the allegationsparties raisedfor ininspection aand formalreview. (ii) complaint,For includingrecipients thethat evidenceare uponelementary whichand thesecondary recipientschools, doesand notother intendrecipients tothat relyare innot reachingpostsecondary ainstitutions, determinationthe regardingrecipient’s responsibilitygrievance process may, sobut thatneed eachnot, partyprovide canfor meaningfullya respondhearing. toWith theor evidencewithout priora tohearing, conclusionafter of the investigation.recipient Priorhas tosent completion of the investigative report, to the recipientparties mustpursuant send to eachparagraph party(b)(5)(vii) of this section and thebefore party’sreaching advisor,a ifdetermination anyregarding responsibility, the evidencedecision-maker(s) subjectmust toafford inspectioneach andparty reviewthe inopportunity anto electronicsubmit formatwritten, suchrelevant asquestions that a fileparty sharingwants platform,asked thatof restrictsany theparty partiesor andwitness, advisorsprovide fromeach downloadingparty orwith copying the evidenceanswers, and theallow partiesfor shalladditional, havelimited atfollow-up leastquestions tenfrom dayseach toparty. submitWith or without a written responsehearing, whichquestions theand investigatorevidence willabout considerthe priorcomplainant’s tosexual completionpredisposition ofor theprior investigativesexual report.behavior Theare recipientnot mustrelevant, makeunless all such evidencequestions subjectand hereinevidence toabout the partiescomplainants inspectionprior andsexual reviewbehavior availableare atoffered anyto hearingprove tothat givesomeone eachother partythan equalthe opportunityrespondent tocommitted referthe toconduct suchalleged evidenceby during the hearingcomplainant, includingor forif purposesthe ofquestions cross-examination; and (ix) Createevidence anconcern investigativespecific reportincidents thatof fairlythe summarizescomplainant’s relevantprior evidencesexual and,behavior atwith leastrespect ten days prior to athe hearingrespondent (ifand aare hearingoffered isto requiredprove underconsent. thisThe sectiondecision-maker(s) ormust otherexplain timeto ofthe determinationparty regardingproposing responsibility,the providequestions aany copydecision of the report to theexclude partiesa forquestion theiras reviewnot and written responserelevant. (47) Determination regarding responsibility. (i) The decision-maker(s), who cannot be the same person(s) as the Title IX Coordinator or the investigator(s), must issue a written determination regarding responsibility. To reach this determination, the recipient must apply either the preponderance of the evidence standard or the clear and convincing evidence standard, although the recipient may employ the preponderance of the evidence standarddescribed onlyin ifparagraph the(b)(1)(vii) recipient uses that standard for conduct code violations that do not involve sexual harassment but carry the same maximum disciplinary sanction. The recipient must also apply the same standard of evidencethis for complaints against students as it does for complaints against employees, including facultysection. (ii) The written determination must include— (A) Identification of the section(s)allegations ofpotentially theconstituting recipient’ssexual codeharassment ofas conductdefined in alleged§ to have been violated106.30; (B) A description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held; (C) Findings of fact supporting the determination; (D) Conclusions regarding the application of the recipient’s code of conduct to the facts; (E) A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions the recipient imposes on the respondent, and anywhether remedies provided by the recipient to the complainant designed to restore or preserve equal access to the recipient’s education program or activity will be provided by the recipient to the complainant; and (F) The recipient’s procedures and permissible bases for the complainant and respondent to appeal, if the recipient offers an appeal. (iii) The recipient must provide the written determination to the parties simultaneously. The If the recipient does not offer an appeal, the determination regarding responsibility becomes final either on the date that the recipient provides the parties with the written determination. Ifof the recipientresult offers an appeal, the determination regarding responsibility becomes final at either the conclusion of the appeal process, if an appeal is filed, or, if an appeal is not filed, the date on which an appeal would no longer be considered timely. (5iv) Appeals.The ATitle recipientIX mayCoordinator chooseis toresponsible offerfor aneffective appeal.implementation Ifof aany recipientremedies. (8) offersAppeals. an(i) appeal,A itrecipient must allowoffer both parties toan appeal. Infrom casesa wheredetermination thereregarding hasresponsibility, beenand from a findingrecipient’s dismissal of responsibility,a althoughformal acomplaint complainantor mayany appealallegations therein, on the groundfollowing bases: (A) Procedural irregularity that affected the remediesoutcome areof the matter; (B) New evidence that was not designedreasonably toavailable restoreat orthe preservetime the complainant’sdetermination accessregarding toresponsibility or dismissal was made, that could affect the recipient’soutcome educationof programthe ormatter; activityand (C) The Title IX Coordinator, investigator(s), or decision-maker(s) had a complainantconflict isof notinterest entitledor tobias afor particularor sanction against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter. (ii) A recipient may offer an appeal equally to both parties on additional bases. (iii) As to all appeals, the recipient must: (iA) Notify the other party in writing when an appeal is filed and implement appeal procedures equally for both parties; (iiB) Ensure that the appeal decision- maker(s) for the appeal is not the same person as anythe investigator(s) or decision-maker(s) that reached the determination ofregarding responsibility or dismissal, the investigator(s), or the Title IX Coordinator; (iiiC) Ensure that the appeal decision- maker(s) for the appeal complies with the standards set forth in paragraph (b)(1)(iii) of this section; (ivD) Give both parties a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome; (vE) Issue a written decision describing the result of the appeal and the rationale for the result; and (viF) Provide the written decision simultaneously to both parties. (69) Informal resolution. AtA recipient may not require as a condition of enrollment or continuing enrollment, or employment or continuing employment, or enjoyment of any other right, waiver of the right to an investigation and adjudication of formal complaints of sexual harassment consistent with this section. Similarly, a recipient may not require the parties toparticipate in an informal resolution process under this section and may not offer an informal resolution process unless a formal complaint is filed. However, at any time prior to reaching a determination regarding responsibility the recipient may facilitate an informal resolution process, such as mediation, that does not involve a full investigation and adjudication, provided that the recipient (i) Provides to the parties a written notice disclosing— (A): Thethe allegations; (B), Thethe requirements of the informal resolution process including the circumstances under which it precludes the parties from resuming a formal complaint arising from the same allegations, ifprovided, however, that at any; time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and (C) Anyresume the grievance process with respect to the formal complaint, and any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared; and (ii) Obtains the parties’ voluntary, written consent to the informal resolution process.; and (7iii) RecordDoes keeping.not (i)offer Aor recipientfacilitate mustan create,informal makeresolution availableprocess to theresolve complainantallegations andthat respondent,an andemployee sexually harassed a student. (10) Recordkeeping. (i) A recipient must maintain for a period of threeseven years records of (A) Each sexual harassment investigation including any determination regarding responsibility and any audio or audiovisual recording or transcript required under paragraph (b)(6)(i) of this section, any disciplinary sanctions imposed on the respondent, and any remedies provided to the complainant designed to restore or preserve equal access to the recipient’s education program or activity; (B) Any appeal and the result therefrom; (C) InformalAny informal resolution, ifand anythe result therefrom; and (D) All materials used to train coordinatorsTitle IX Coordinators, investigators, and decision-makers, withand regardany toperson sexualwho harassmentfacilitates an informal resolution process. 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. (ii) AFor each response required under § 106.44, a recipient must create, and maintain for a period of threeseven years, records of any actions, including any supportive measures, taken in response to a report or formal complaint of sexual harassment. In each instance, the recipient must document the basis for its conclusion that its response was not clearlydeliberately unreasonableindifferent, and document that it has taken measures designed to restore or preserve equal access to the recipient’s educationaleducation program or activity. If a recipient does not provide a complainant with supportive measures, then the recipient must document the reasons why such a response was not clearly unreasonable in light of the known circumstances. The documentation of certain bases or measures does not limit the recipient in the future from providing additional explanations or detailing additional measures taken.[FR 12. DocAdd § 106.46 2018to subpart D to read as follows: § 106.46 Severability. If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice shall not be affected thereby. 13. Add § 106.62 to subpart E to read as follows: § 106.62 Severability. If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice shall not be affected thereby. 14. Subpart F is revised to read as follows: Subpart F25314Retaliation Sec. 106.71 FiledRetaliation 106.72 11Severability Subpart F28–18;Retaliation § 106.71 Retaliation. (a) Retaliation prohibited. No recipient or other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by title IX or this part, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this part. Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by title IX or this part, constitutes retaliation. The recipient must keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report orfiled a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as may be permitted by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder. Complaints alleging retaliation may be filed according to the grievance procedures for sex discrimination required to be adopted under § 106.8(c). (b) Specific circumstances. (1) The exercise of rights protected under the First Amendment does not constitute retaliation prohibited under paragraph (a) of this section. (2) Charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a grievance proceeding under this part does not constitute retaliation prohibited under paragraph (a) of this section, provided, however, that a determination regarding responsibility, alone, is not sufficient to conclude that any party made a materially false statement in bad faith. § 106.72 Severability. If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice shall not be affected thereby. 15. Add subpart G to read as follows:45 Subpart amG – Procedures Sec. 106.81 Procedures 106.82 Severability 2033Subpart G – Procedures § 106.81 Procedures.The procedural provisions applicable to title VI of the Civil Rights Act of 1964 are hereby adopted and incorporated herein by reference. These procedures may be found at 34 CFR 100.6-100.11 and 34 CFR part 101. The definitions in § 106.30 do not apply to 34 CFR 100.6- 100.11 and 34 CFR part 101. § 106.82 Severability. If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice shall not be affected thereby.Subject Index to Title IX Preamble and Regulation [Removed]BILLING 16. CODERemove 4000–01–Pthe Subject Index to Title IX Preamble and Regulation. 17. In addition to the amendments set forth above, in 34 CFR part 106, remove the parenthetical authority citation at the ends of §§ 106.1, 106.2, 106.3, 106.4, 106.5, 106.6, 106.7, , 106.11, 106.12, 106.13, 106.14, 106.15, 106.16, 106.17, 106.21, 106.22, 106.23, 106.31, 106.32, 106.33, 106.34, 106.35, 106.36, 106.37, 106.38, 106.39, 106.40, 106.41, 106.42, 106.43, 106.51, 106.52, 106.53, 106.54, 106.55, 106.56, 106.57, 106.58, 106.59, 106.60, and 106.61.

View the rest of our R3 resources by clicking here.