Category: Department of Education

Numerous Groups and Individuals Applaud New Title IX Regulation

Post author By saveadmin
Post date August 17, 2020

INDEPENDENT WOMEN’S FORUM: “IWF applauds the Title IX federal regulations released today by the Department of Education. The new regulations—for the first time—codify the obligation of schools to address claims of sexual misconduct. They also require that schools conduct all sexual misconduct investigations without bias and in a non-discriminatory manner.”

YOUNG AMERICA’S FOUNDATION: “These bold reforms – driven by unprecedented input from the American people – will restore constitutional principles and allow students to be confident in fairness and accountability from their schools.”

FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION: “Advocates for free speech and due process on campus won one of their biggest-ever victories today with the finalization of long-awaited new Department of Education Title IX regulations. The regulations guarantee critical due process protections that Americans recognize as essential to securing justice, but that have for too long been denied to students accused of sexual misconduct on college campuses.”

JEANNIE SUK GERSEN, HARVARD LAW SCHOOL: “The major story here is that for the first time, the regulations are really making it clear that there are certain elements to a fair process. It’s not just telling schools to be fair, which they have been told by the Education Department multiple times. These regs are actually laying out some of the elements that the department thinks are essential to making a process fair in the college disciplinary context.”

NINA J. GINSBERG, PRESIDENT OF THE NATIONAL ASSOCIATION FOR CRIMINAL DEFENSE LAWYERS: “The restoration of due process on campus is essential…America’s colleges and universities are where millions of young adults are not just learning from textbooks and lectures — they are also becoming civically engaged members of a community, of a social order. We cannot expect young adult students to understand and defend core constitutional principles once they leave campus if some of those core principles that apply in America’s justice system are honored only in the breach by the educational institutions presiding over student misconduct proceedings.”

NADINE STROSSEN, FORMER PRESIDENT OF THE ACLU: “One of the best things about the DeVos guidelines is that it really goes back to square one of what the purpose of Title IX is.”

JUDGE RAYMOND KETHLEDGE, U.S. COURT OF APPEALS FOR THE SIXTH CIRCUIT: “Any number of federal constitutional and statutory provisions reflect the proposition that, in this country, we determine guilt or innocence individually—rather than collectively, based on one’s identification with some demographic group. That principle has not always been perfectly realized in our Nation’s history, but as judges it is one that we take an oath to enforce.”

KIMBERLY LAU, JAMES FIGLIOZZI AND BRANDEN LYNN, ATTORNEYS AT WARSHAW BURSTEIN: “Placed in an unenviable position, DOE sought to strike a balance by integrating the bedrock principles of due process found within our legal system while also providing continuous support to complainants… As legal practitioners, we believe the final regulations, while not perfect, represent a step in the right direction for Title IX.”

MICHAEL POWELL, NEW YORK TIMES: “Ms. DeVos’ actions won praise from a surprising audience: an influential group of feminist legal scholars who applauded the administration for repairing what they viewed as unconscionable breaches in the rights of the accused.”

DOUGLAS WILDER, FORMER GOVERNOR OF VIRGINIA: “…the Department of Education has taken a major step toward improving one area with a longtime culture of injustice. Education Secretary Betsy DeVos recently strengthened Title IX protections for the survivors of sexual misconduct on campus, while instituting due process in campus proceedings.”

JUSTICE RUTH BADER GINSBURG, U.S. SUPREME COURT: “The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that…[it’s] one of the basic tenets of our system…everyone deserves a fair hearing.”

STACI SLEIGH-LAYMAN, EXECUTIVE DIRECTOR OF HUMAN RESOURCES AND THE TITLE IX COORDINATOR AT CENTRAL WASHINGTON UNIVERSITY: “These new changes give a lot of credibility and due process and equal kind of attention to the person accused as well as the person coming forward… they put in place a process that seeks to provide due process for both sides.”

BUDDY ULLMAN, FORMER PROFESSOR AT THE OREGON HEALTH & SCIENCE UNIVERSITY: “I am a progressive Democrat and enthusiastic supporter of the new Title IX Rule that was recently issued by Education Secretary Betsy DeVos. The DeVos Rule provides colleges and universities with a detailed and uniform modus operandi on how they must handle gender discrimination, sexual harassment, and sexual assault disputes. The new regulations emphasize fairness, equitability, due process protections, and extensive supportive measures for all parties, all of which have been.”

R. SHEP MELNICK, BROOKINGS INSTITUTION: “Not only was the Education Department’s rulemaking process extraordinarily extensive and its response to comments meticulous, but its final rules return to the legal framework established by the Supreme Court over two decades ago… the new administrative regulations are less radical—and more demanding—than the Education Department’s critics often suggest… the Department of Education deserves credit for going through a transparent, time-consuming, and rigorous rulemaking process and respecting the Supreme Court’s interpretation of Title IX.”

What They’re Saying

Department of Education Title IX

U.S. Department of Education Launches New Title IX Resources for Students, Institutions as Historic New Rule Takes Effect

Post author By saveadmin
Post date August 17, 2020

AUGUST 14, 2020

WASHINGTON — U.S. Secretary of Education Betsy DeVos launched new resources to help students and schools understand the protections provided by the Department’s historic regulation on Title IX, as the Rule takes full effect today. The Rule, announced on May 6, 2020, following years of stakeholder input, public comment and careful deliberation, extends many new protections against sexual harassment, and strongly safeguards the rights of all students, including the right to due process. The Department also launched a new website that provides a one-stop resource for this key information, including how to file a complaint, an overview of the Rule’s protections for survivors, and a detailed webinar on how schools can fully implement and uphold the new provisions in the law.

“Today marks a new era in the storied history of Title IX in which the right to equal access to education required by law is truly protected for all students,” said Secretary DeVos. “Every student should know that their school will be held accountable for responding to incidents of sexual misconduct and that it must treat all students fairly. This rule, as courts have recently noted, restores balance to the scales of justice in our schools, ending one of the most infamous and damaging overreaches of the previous administration.”

The new website will serve as an online hub for information and resources students can use to understand their rights under Title IX and what the new Rule means for them. It also provides a robust fact sheet for students that dispels myths and falsehoods about the Rule. For instance, the Rule expressly prohibits students from directly cross-examining one another, and it requires schools to provide support services to students, even if a student chooses not to move forward with a formal complaint process. The website is also home to information on how courts have opined on the new Rule and the importance of due process and includes statements from lawmakers, respected attorneys, and other major thought leaders on the importance of due process for all students.

To access the website, please click here

Background on the Title IX Rule:

Since the beginning of her tenure, Secretary DeVos has worked to ensure all students have the freedom to learn in a safe environment, free from discrimination. The regulation carries the full force of law, unlike the previous administration’s much-criticized “Dear Colleague” letter on the topic that denied students basic due process protections and led to courts frequently overturning school decisions, subjecting survivors to further trauma. With the benefit of robust public participation in the rulemaking process, the Title IX regulation reflects Secretary DeVos’ commitment to ensuring that every person’s claim of sexual misconduct is taken seriously while ensuring the fair treatment of every person accused of such misconduct.

Key provisions of the Department of Education’s new Title IX regulation:

Defines sexual harassment to include sexual assault, dating violence, domestic violence, and stalking, as unlawful discrimination on the basis of sex
Provides a consistent, legally sound framework on which survivors, the accused, and schools can rely
Requires schools to offer clear, accessible options for any person to report sexual harassment
Empowers survivors to make decisions about how a school responds to incidents of sexual harassment
Requires schools to offer survivors supportive measures, such as class or dorm reassignments or no-contact orders
Protects K-12 students by requiring elementary and secondary schools to respond promptly when any school employee has notice of sexual harassment
Holds colleges responsible for off-campus sexual harassment at houses owned or under the control of school-sanctioned fraternities and sororities
Restores fairness on college and university campuses by upholding a student’s right to written notice of allegations, the right to an advisor, and the right to submit, cross-examine, and challenge evidence at a live hearing
Shields survivors from having to come face-to-face with the accused during a hearing and from answering questions posed personally by the accused
Requires schools to select one of two standards of evidence, the preponderance of the evidence standard or the clear and convincing evidence standard, and to apply the selected standard evenly to proceedings for all students and employees, including faculty
Provides “rape shield” protections and ensures survivors are not required to divulge any medical, psychological, or similar privileged records
Requires schools to offer an equal right of appeal for both parties to a Title IX proceeding
Gives schools flexibility to use technology to conduct Title IX investigations and hearings remotely
Protects students and faculty by prohibiting schools from using Title IX in a manner that deprives students and faculty of rights guaranteed by the First Amendment

https://www.ed.gov/news/press-releases/us-department-education-launches-new-title-ix-resources-students-institutions-historic-new-rule-takes-effect

Campus Department of Education Title IX

Federal judge refuses to block campus sexual assault rules

Post author By saveadmin
Post date August 13, 2020

WASHINGTON — A federal judge on Wednesday allowed the Education Department to move forward with new rules governing how schools and universities respond to complaints of sexual assault.

The rules, which take effect Friday, expand the rights of the accused, narrow the definition of sexual harassment and reduce the scope of cases that schools are required to investigate, among other changes.

In a suit challenging the rules, attorneys general from 17 states and the District of Columbia argued that the policy would block schools from investigating certain sexual abuse complaints and would discourage students from reporting assaults.

“As a result, fewer sexual harassment complaints will be filed, and schools will be less well equipped to protect their students’ safety and rid their programs and activities of the pernicious effects of sex discrimination,” the suit said.

But US District Judge Carl. J. Nichols rejected those arguments.

“Plaintiffs are free to investigate and punish as violations of their codes of conduct or of state law behavior that does not meet the new definition of sexual harassment under the Final Rule,” Nichols wrote.

He also turned aside an argument that the rules would bring heavy costs for schools and limit their ability to respond to the coronavirus pandemic.

“The Court recognizes the obvious seriousness of the COVID-19 pandemic,” he wrote. “In fact, for these and other reasons, a later effective date might have been a preferable policy decision.”

Still, he said, the Education Department took the pandemic into account when it issued the new rules, and schools have long known that a new policy would be coming.

Education Secretary Betsy DeVos said the ruling is “yet another victory for students and reaffirms that students’ rights under Title IX go hand in hand with basic American principles of fairness and due process.”

DeVos issued her policy May 6 after rescinding earlier guidelines from the Obama administration in 2017. Victims’ advocates say the 2017 rules forced colleges to confront sexual abuse after ignoring it for years. But DeVos has said the guidelines turned campus disciplinary panels into “kangaroo courts” that were too quick to punish accused students.

DeVos’ rules, which carry the weight of law, tell schools how to implement Title IX, the 1972 law barring discrimination based on sex in education.

Under her overhaul, the definition of sexual harassment is narrowed to “unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive” that it denies a person access to a school’s education programs or activity.

The policy will now require colleges to investigate claims only if they’re reported to certain officials, and schools can be held accountable for mishandling complaints only if they acted with “deliberate indifference.” Opponents also took exception with a provision allowing students to question one another through representatives at live hearings.

DeVos on Wednesday said the rules require schools “to act in meaningful ways to support survivors of sexual misconduct without sacrificing important safeguards to protect free speech and provide all students with a transparent, reliable process.”

The case challenging the rules was led by attorneys general in Pennsylvania, New Jersey and California, with backing from a total of 17 states and the District of Columbia.

The California and Pennsylvania attorneys general didn’t immediately respond to requests for comment.

The challenge was supported by the American Council on Education, an association of university presidents, along with 24 other higher education organizations. In a June legal brief, the groups said the policy ordered a “sea change” for colleges but gave them less than three months to implement it.

“In the best of times, that deadline would be unreasonable. But in light of the extraordinary burdens that have been placed on American colleges and universities in the wake of the COVID-19 global pandemic, that August 14 implementation deadline is problematic in the extreme,” the groups wrote.

Campus Civil Rights Department of Education Department of Justice Due Process False Allegations Sexual Assault Title IX

Can Lockdown Learning Liberate Male Students?

Post author By saveadmin
Post date August 5, 2020

The COVID-19 cloud hanging over North American universities may contain a ray of sunlight. It may ease what is called “the boy problem” in education—a significantly reduced number of male students and of male achievement in colleges. As bleak as isolated learning may seem to some, it may be more male friendly than many campuses.

Critics denounce off-campus learning as a lesser service being offered at full price. Certainly, the college experience can be enhanced by direct interaction with professors, other students, and organizations. But a radical left ideology dominates the university system, and it is sustained by an army of administrators who implement policies of social control, from speech codes to sexual mores. This often leads to stifled opinions, preferential treatment of some classes of student, accusations of misconduct, speech police, campus hearings with no due process, and punishment with no appeal. There can be advantages to a stripped-down version of learning without the social justice and social control that turns the benefits of interaction into cruel dangers.

An October 2018 article in the New York Times, “Think Professors Are Liberal? Try School Administrators,” complained,

The ideological bent of those overseeing collegiate life is having the biggest impact on campus culture…I received a disconcerting email this year from a senior staff member in the Office of Diversity and Campus Engagement at Sarah Lawrence College, where I teach. The email was soliciting ideas…for a conference, open to all of us, titled “Our Liberation Summit.” The conference would touch on such progressive topics as liberation spaces on campus, Black Lives Matter and justice for women as well as for lesbian, gay, bisexual, transgender, queer, intersex, asexual and allied people.

The conservative professor objected to the political polarization of this campus conference and the power of the administrator. Those who reject any tax-funded conference can sympathize, not because of the politics involved but because of the taxes. The fact that “those overseeing collegiate life” push their own orthodoxy is insult added to injury.

The silver lining of at-home learning: students who attend class in pajamas have little occasion to encounter social justice warrior (SJW) bureaucrats. In on-campus life, they seem to be everywhere.

In 2017, Todd J. Zywicki and Christopher Koopman of George Mason University published a study entitled “The Changing of the Guard: The Political Economy of Administrative Bloat in American Higher Education.” They found,

Universities have increased spending, but very little of that increased spending has been related to classroom instruction; rather, it is being directed toward non-classroom costs. As a result, there has been a growth in academic bureaucracies, as universities focus on hiring employees to manage or administer people, programs, and regulations. Between 2001 and 2011, these sorts of hires have increased 50% faster than the number of classroom instructors. This trend…has become ubiquitous in…American higher education. (p.2). [Data draws on WSJ article “Deans List: Hiring Spree Fattens College Bureaucracy—And Tuition.”]

Focusing on a narrow field of administrators offers a glimpse of the harm these bureaucrats inflict. Consider the impact of one branch on one student population: Title IX on male students, who have been called “the new minority” at colleges. This is particularly true of males from low-income families.

Jim Shelley, the manager of the Men’s Resource Center at Lakeland Community College in Ohio, explains one reason why; campuses feel hostile to them. They feel that college is geared toward protecting and promoting females.

“Not only are there not programs like ours [on other campuses] that are supportive of male students, but at most college campuses the attitude is that men are the problem.…I’ve had male students tell me that their first week in college they were made to feel like potential rapists.”

A great deal of attention in the last decade has been directed to “the boy problem” in education. A few examples include:

Higher Ed Live: Missing Men: Addressing the College Gender Gap
Stanford Professor Postings: Where the Guys Are: Males in Higher Education
Inside Higher Education: The Other Gender Gap
College Stats: Why Men Are Falling Behind in Higher Ed

Logically, administrators seem to be ideally placed to ensure that campuses are welcoming to and not hostile environments for males. In reality, they do the opposite. Just one example are sex specific scholarships that overwhelmingly favor female applicants—often prohibiting male ones—even though Title IX’s implementing regulation, 34 CFR 106, prohibits federally tax-supported scholarships that, “On the basis of sex, provide different amounts or types of such assistance, limit eligibility for such assistance which is of any particular type or source, apply different criteria, or otherwise discriminate.”

A broader overview reveals how badly administrators may be failing or actively harming male students. The overview involves taking universities at their word and examining the makeup of staff, such as Title IX administrators. A popular campus idea is that only another member of a specific gender or race understands the experience of that gender or race; only blacks understand the black experience, etc.

This argument is used to push for a so-called diversity of hiring that gives female students access to female counselors and mentors, for example. Again, this approach leads to preferential hiring based on gender or race—that is, quotas—which are anathema to any system of merit. Nevertheless, socially engineered quotas are normal at universities. If applied even handedly, this should result in a population of administrators that roughly mirrors the population of students. This seems especially important for Title IX administrators who are supposed to ensure non-discrimination based on sex.

What is the gender mix of the student populations? It varies from campus to campus, of course, but an October 2019 article entitled “The Degrees of Separation Between the Genders in College “ in the Washington Post renders a fair sense of it. The article states, “Fifty years ago, 58 percent of U.S. college students were men. Today, 56 percent are women, Education Department estimates show.” This is a commonly cited statistic.

Capture One would expect Title IX administrators, therefore, to be half-female and half-male, or something roughly close to this ratio. A review of the websites of the largest public university in each state, however, reveals a huge gender gap in Title iX staff. In the 51 universities, there were 168 female staffers to 48 male, or 3.5 times more females.

If this gap resulted from free market factors, then it would be an interesting and harmless anomaly that probably reflects how employment preferences differ between the genders. No solution would be required because no problem would exist. But universities are socially engineered institutions. They receive Title IX funding and other federal benefits on the specific condition of non-discrimination. If blacks constituted 44 percent of a student body while 3.5 times more whites than blacks occupied highly paid positions of authority, there would be a cry of “racism!” No one cries out for male students.

Administrators will not give up their positions easily, simply because they are highly paid and bring status. According to the 2012-13 “Administrators in Higher Education Salary Survey” by the College and University Professional Association for Human Resources, the average annual salary of a “Chief Executive Officer of a System” in a two-year institution was $291,132; in a four-year institution, $370,470; in a doctoral context, $431,575. By contrast, a 2015-16 report from the American Association of University Professors (AAUP) found the average salary of a tenured professor at a public college was $78,762. Again, this is not a hard comparison, but it renders a good general sense of the scope of the problem and why the administrators will not easily cede their authority.

Ultimately, the solution is to privatize colleges and run them as businesses in which owners make decisions, usually according to market feedback. In the absence of this and the presence of tax-funding, however, it is blatantly wrong to privilege one class of human being and discriminate against another class in employment and opportunity. It is especially hypocritical to do so within a program that allegedly champions non-discrimination.

If the lockdown of universities loosens the death grip that anti-male administrators have on college campuses, then at least one benefit will come from it. If SJW social justice bureaucrats are shown to be irrelevant, perhaps cash-strapped universities will consider a return to academia and cease to be petri dishes of social experimentation.

https://libertarianinstitute.org/articles/can-lockdown-learning-liberate-male-students/

Campus Department of Education Title IX Trauma Informed

Why TIX and Trauma-Informed Investigations Don’t Mix

Post author By saveadmin
Post date August 5, 2020

As Universities put finishing touches on their Title IX policies, SAVE is advising university counsel to assure Title IX investigations do not rely on methods that are victim-centered, where investigators are encouraged to “Start By Believing”.

When investigators start by believing the accusing party, in effect, they are disbelieving the responding party. This leaves no room for
Presumption of Innocence in campus adjudications.

These trauma-informed methods are inadvisable for four reasons:

• The Final Rule requires all Title IX administrators are trained on…how to serve impartially, including avoiding prejudgment of the facts at issue, conflicts of interest, and bias…”

• Recent judicial decisions rule against trauma-informed investigations. In a decision against Syracuse University, a federal judge noted: “Plaintiff alleges that the investigation relied on ‘trauma informed techniques’ that ‘turn unreliable evidence into its opposite,’ such that inconsistency in the alleged female victim’s account. . .becomes evidence that her testimony is truthful”.

• A lack of scientific basis noted in several peer-reviewed articles surrounds trauma-informed investigations. Journalist Emily Yoffe has described these methods as “junk science”.

• Leading Title IX Groups, such as ATIXA, FACE, and SAVE have been critical of these types of investigations, noting lack of fairness and due process for all parties. In addition, 158 professors and legal experts endorsed an Open Letter critical of the use of trauma-informed methods.

SAVE notes “trauma-informed” may be useful in the context of providing counseling and mental health services. But trauma-informed philosophy serves to bias the investigative process, rendering campus adjudications unreliable.

SAVE encourages you to contact the provost at your alma mater or local college and encourage their oversight to assure the university does not include trauma-informed investigations for their TIX proceedings.

Campus Civil Rights Department of Education Due Process Fair Campus Act Investigations Title IX

To cripple the abusive campus ‘sex bureaucracy,’ rein in the Title IX coordinators

Post author By saveadmin
Post date August 2, 2020

If you want to entrench a government policy, make sure someone’s job depends on enforcing it. Even if that person isn’t a true believer in the program initially, she will be by the time her first paycheck arrives – and increasingly after that. That’s certainly the case with the education system’s Title IX coordinators, who are charged with overseeing schools’ compliance with federal sex discrimination statutes and questionable regulatory dictates.

What do Title IX coordinators do? Their core job duty, at least in theory, is to monitor their institution’s compliance with Title IX of the Education Amendments of 1972, which helps ensure that institutions receiving federal money do not tolerate sexual harassment that effectively bars the victim’s access to educational opportunity.

However, regulators’ zeal for stamping out sexual harassment has warped enforcement in ways that violate students’ free speech and due process rights. That’s all thanks to the Office of Civil Rights (OCR) within the Department of Education, which under the Obama administration issued widely criticized guidance documents elaborating on – and often unreasonably expanding the interpretation of – what counts as harassment. These documents imposed new duties on regulated schools based on a serious misreading of the law, and were instituted without following the appropriate procedures for public notice and comment.

Fortunately, the Trump administration has withdrawn some of the worst guidance documents and issued binding regulations that should discourage schools from curtailing students’ fundamental rights. However, there is at least one more problematic Obama-era Title IX guidance remaining on the books. It describes, at length, the procedures that federal funding recipients must follow in employing Title IX coordinators.

The term “coordinator” appears nowhere in Title IX itself. The requirement originates from a 1975 regulation (34 C.F.R. 106.8) that told funding recipients they had to designate a responsible employee to handle Title IX compliance. The requirement prompted almost no public comment at the time, probably because it was seen as the kind of modest measure that agencies routinely take to carry out a statute, such as telling recipients what color paper they must use in correspondence with an agency.

Yet onto this slender bureaucratic reed, the Obama administration engrafted a complex regulatory regime that essentially created privately administered “sex bureaucracies” within every funding recipient’s management.

Under pressure from this guidance, many colleges and universities expanded their Title IX offices. Harvard University has by my count 58 compliance staff members. Yale University has 22. Even tiny liberal arts colleges have significant Title IX offices: Middlebury has one main Title IX coordinator and six deputies; Amherst has one coordinator and six deputies; Haverford has one and eight deputies.

As these offices have grown, staff duties have expanded to include work going beyond ensuring compliance with the law and instead promoting the “spirit” of Title IX. One Swarthmore coordinator noted to the media that these “jobs are really not just about compliance anymore, but also about campus climate.”

What are these offices doing to promote Title IX’s spirit? As Jeannie Suk and Jacob Gersen discuss in a 2016 California Law Review article, “The Sex Bureaucracy,” many have gone beyond preventing unlawful sex discrimination and instead have expanded into lecturing students on what used to be seen as highly personal decisions about pursuing “healthy” or “safe” romantic and sexual relationships. Most of us learned foundational relationship skills such as “Always use ‘I’ statements” and “Don’t interrupt your partner” from partners, friends, clergy, or private therapists. Yet Title IX coordinators at Swarthmore and the University of Illinois have taken it upon themselves to propound such advice to students

“Is bureaucracy the antonym of desire?” Suk and Gersen ask. Certainly many of us would think so. Are bureaucrats hired to enforce a nondiscrimination statute really well-equipped to serve also as essentially relationship therapists? Much of their advice may be noncontroversial, but some may be less so, especially to students who hold traditional or religious values. Is it infantilizing to young adults to treat them as needing this kind of hectoring? Because of the pandemic-related economic downturn, many universities are in a particularly tight financial situation right now. Wouldn’t it make sense for regulators to give them some more flexibility in this area?

The Trump administration has made a priority of restoring the rule of law and stopping agency abuse of guidance documents: an executive order lays out procedures for transparency in issuance of guidance documents and restricts executive agencies’ unlawful issuance of guidance documents, and Associate Attorney General Rachel Brand issued a memo prohibiting Department of Justice components from issuing guidance documents that effectively bind the public.

The Trump administration should follow through on its commitment to pull back overreaching guidance and repeal this problematic document, in order to rein in the Title IX coordinators and their abusive sex bureaucracy.

Alison Somin is a legal fellow at Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty. Follow her on Twitter @AlisonSomin.

Accountability Campus Civil Rights Department of Education Discrimination Due Process False Allegations Investigations Office for Civil Rights Press Release Sex Education Sexual Assault Sexual Harassment Title IX Training Victims Violence

Double Jeopardy: SAVE Calls on College Administrators to Assure Due Process Protections for Black Students in Title IX Proceedings

Post author By saveadmin
Post date July 28, 2020

Contact: Rebecca Stewart
Telephone: 513-479-3335
Email: info@saveservices.org

Double Jeopardy: SAVE Calls on College Administrators to Assure Due Process Protections for Black Students in Title IX Proceedings

WASHINGTON / July 28, 2020 – SAVE recently released a study that shows black male students face a type of “double jeopardy” by virtue of being male and black. (1) Analyses show although black male students are far outnumbered on college campuses, they are four times more likely than white students to file lawsuits alleging their rights were violated in Title IX proceedings (2), and at one university OCR investigated for racial discrimination, black male students were accused of 50% of the sexual violence reported to the university yet they comprised only 4.2% of the student population. (3)

In 2015, Harvard Law Professor Janet Halley raised an alarm to the U.S. Senate HELP committee that, “the rate of complaints and sanctions against male students of color is unreasonably high.” (4) She advised school administrators to, “not only to secure sex equality but also to be on the lookout for racial bias and racially disproportionate impact and for discrimination on the basis of sexual orientation and gender identity – not only against complainants but also against the accused.” (5)

Her powerful words were ignored. Over the past 5 years numerous black males have been caught up in campus Title IX proceedings. Their lawsuits often claim a lack of due process in the procedures.

Grant Neal, a black student athlete, was suspended by Colorado State University – Pueblo for a rape his white partner denied ever happened. (6) Two black males students accused of sexually assaulting a fellow student recently settled a lawsuit against University of Findlay for racial, gender and ethnic discrimination. (7) Nikki Yovino was sentenced to a year in prison for making false rape accusations against two black Sacred Heart University football players whose lives were ruined by her accusations. (8) These are just a few examples.

Wheaton College in suburban Chicago, a major stop along the Underground Railroad, recently dismissed Chaplain Tim Blackmon, its first nonwhite chaplain in its 155-year history. Blackmon claims Wheaton’s Title IX office failed to investigate a previous Title IX complaint against him in a “clear misuse of the Title IX investigative process,” and he was “completely blind-sided by this Title IX investigation.” Blackmon’s attorney believes the professor’s race heavily factored into his firing, and that Wheaton was looking for an excuse to sever its relationship with its first African American chaplain and return to being a predominantly white educational institution. (9)

The impact to black male students and faculty could be even greater than any data or media reports imply since only those who can afford a costly litigation file lawsuits and make the news. More data is needed, but anecdotally black males are disproportionately harmed in campus Title IX proceedings.

SAVE recently spoke with Republican and Democrat offices in the House and Senate regarding this issue. Virtually all staffers agreed members of Congress are concerned about harm to black students and supportive of ways to offer protections to all students, including those of color.

The new Title IX regulation offers necessary due process protections that black students need. By complying with the regulation, college administrators will protect the rights of all students and address the serious problem that black men are accused and punished at unreasonably high rates. At a time when activists on college campuses are clamoring that Black Lives Matter, college administrators should assure they are doing everything they can to help their black students.

Citations:

SAVE is leading the policy movement for fairness and due process on campus: http://www.saveservices.org/

Campus Department of Education Office for Civil Rights Sexual Assault Sexual Harassment Title IX Victims

Supreme Court Asked to Review Title IX ‘Circuit Split’

Post author By saveadmin
Post date July 24, 2020

The petition to the Supreme Court, made by Emily Kollaritsch and other women who say they were raped by the same male student while attending Michigan State, asks the justices to solve a “circuit split” between appellate courts across the country. Several courts disagree on how colleges should be held liable when sexual harassment complainants experience further harm after filing complaints. The petition calls on the justices to decide whether colleges can be held responsible for failing to address students’ “vulnerability” to sexual misconduct, or if preventable sexual misconduct must actually occur for colleges to be found in violation of Title IX of the Education Amendments of 1972, the law that prohibits sex discrimination at federally funded institutions.

The case is centered on Kollaritsch and argues that Michigan State failed to protect her from being further harassed by a male student after the university found him responsible for sexually harassing her in 2011. The university issued a no-contact order and Kollaritsch said the male student broke it, but Michigan State could not prove he had. Kollaritsch also said she suffered panic attacks as a result of seeing the male student on campus, which she said indicated that Michigan State was “deliberately indifferent” to her sexual harassment. She said she suffered further harm by the male students’ presence on campus.

The 2019 opinion issued in the United States Sixth Circuit Court of Appeals said Michigan State could not be held liable because Kollaritsch could only prove she experienced mental health challenges from seeing the male student and not “further actionable sexual harassment” by him. The case was sent back to the district court for dismissal.

The Sixth Circuit opinion deepened a split in how different appellate courts interpret a 1999 Supreme Court case that found colleges can be held liable for “deliberate indifference” to sexual misconduct on campus under Title IX. Some circuit courts maintain that if a victimized student is merely vulnerable to harassment, even if it does not actually occur, then the institution is failing to provide an equal educational environment and could be held liable. The Eighth and Sixth Circuits hold that alleged victims must “prove additional, post-notice sexual harassment in order to state a claim for damages under Title IX,” according to Kollaritsch’s petition.

The petition was filed on July 2. On July 23, the court approved an extension requested by Michigan State to move the deadline for when the university’s lawyers must file a response. Michigan State will respond to the petition by Sept. 9, the case’s docket says.

Source: https://www.insidehighered.com/quicktakes/2020/07/24/supreme-court-asked-review-title-ix-%E2%80%98circuit-split%E2%80%99

Campus Department of Education Office for Civil Rights Scholarships

PR: Growing Number of Schools Being Investigated for Title IX Violations of Sex-Specific Scholarships

Post author By saveadmin
Post date July 13, 2020

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Growing Number of Schools Being Investigated for Title IX Violations of Sex-Specific Scholarships

WASHINGTON / July 14, 2020 – Title IX administrators are placing their institutions at risk of a burdensome OCR investigation as colleges continue to violate federal requirements banning scholarships that discriminate on the basis of sex. Title IX’s regulation 34 CFR 106.37(a) prohibits schools from offering scholarships that, “On the basis of sex, provide different amounts or types of such assistance, limit eligibility for such assistance which is of any particular type or source, apply different criteria, or otherwise discriminate.” (1)

On March 16, 2020, the SAVE Title IX Equity Project issued a press release identifying 237 schools that offered sex-scholarships that discriminate against male students (2). In response to complaints filed with the Office for Civil Rights, 84 new investigations were opened, with additional complaints still under consideration by the federal agency (3).

In the month of June, OCR opened investigations for single-sex scholarship violations against the following schools:

Auburn University, AL
University of Central Arkansas
Colorado State University-Fort Collins
University of Hawaii System
Boise State University
College of Western Idaho
Ivy Tech Community College, IN
Fort Hays State University, KS
University of Kansas-Lawrence
University of Louisville, KY
Montgomery College, MD
Community College of Baltimore County
University of Missouri-Columbia
University of Missouri-Kansas City
University of Missouri-St. Louis
Montana State University-Great Falls College
University of Montana-Missoula
East Carolina University, NC
Central Community College, NE
Metropolitan Community College, NE
Southeast Community College, NE
University of Nebraska-Omaha
New Hampshire Technical Institute-Concord’s Community College
Truckee Meadows Community College, NV
Kent State University, OH
Chemeketa Community College, OR
University of Memphis
University of Tennessee
Brigham Young University-Provo, UT
Weber State University, UT
Virginia Commonwealth University
Bellevue College, WA
University of Washington-Seattle
Washington State University
Madison Area Technical College, WI
Central Wyoming College

Two of the investigations involve allegations of particularly egregious misconduct. The University of Missouri-Columbia offers 70 scholarships to female students and only 1 scholarship to male students. Similarly, Auburn University in Alabama offers 67 scholarships to females and only 1 scholarship to male students (4).

Tulane University, an institution with not only a history of being investigated by OCR for sexual discrimination but also a history of offering female only scholarships (5), has again found itself under OCR’s microscope. Although Tulane entered into a Resolution Agreement with OCR in 2019 (6), OCR is currently evaluating yet another complaint filed in April against the institution for allegedly violating federal requirements that bar sex-discriminatory scholarships.

Mark Perry, an economist at University of Michigan-Flint who himself files OCR complaints against schools with single-sex campus programs, recently opined, “Universities are for the first time being challenged for violating Title IX by offering single sex programs/scholarships, as they continue to live in the past, as if we’re still in the 1960s or 1970s, by pretending that women are handicapped and disadvantaged.” (7)

These findings highlight how university administrators and general counsel need to exercise greater oversight to correct discriminatory practices or risk a costly investigation by the federal Office for Civil Rights.

Citations:

Campus Department of Education Office for Civil Rights Sexual Assault Sexual Harassment Stalking Title IX

Title IX Regulatory Text — 34 CFR 106

Post author By saveadmin
Post date May 9, 2020

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 paragraph (a) to read as follows:

§106.3 Remedial and affirmative action and self-evaluation.

(a) Remedial action. If the Assistant Secretary finds that a recipient has discriminated
against persons on the basis of sex in an education program or activity under this part, or
otherwise violated this part, such recipient must take such remedial action as the Assistant
Secretary deems necessary to remedy the violation, consistent with 20 U.S.C. 1682.

* * * * *

3. Section 106.6 is amended by revising the section heading and adding paragraphs (d),
(e), (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). 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 may be read in derogation
of any individual’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 applicants
for admission 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
persons entitled to a notification under paragraph (a) of this section that the recipient 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
admission (unless subpart C of this part does not apply) and employment, and that inquiries
about the application of title IX and this part to such recipient may be referred to the recipient’s
Title IX Coordinator, 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) of this section and the
policy described in paragraph (b)(1) of this section on its website, if any, and in each handbook
or catalog that it makes available to persons entitled to a notification under paragraph (a) 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 a 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, how to report or file a formal complaint of sexual harassment, and how the
recipient will respond.
(d) Application outside the United States. The requirements of paragraph (c) of this
section apply only to sex discrimination occurring against a person in the United States.
5. Section 106.9 is revised to read as follows:
§ 106.9 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.

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 an 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 part:
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 any employee of an elementary and
secondary school. Imputation of knowledge based solely on vicarious liability 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 the respondent. The mere ability or obligation
to report sexual harassment or to inform a student about how to report sexual harassment, or
having been trained to do so, 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 is alleged to 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 signed by the Title IX
Coordinator alleging sexual harassment against a respondent and requesting that the recipient
investigate the allegation of sexual harassment. At the time of filing a formal complaint, a
complainant must be participating in or attempting to participate in the education program or
activity 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 by electronic mail, by using the contact
information required to be listed for the Title IX Coordinator under § 106.8(a), and by any
additional method designated by the recipient. As used in this paragraph, the phrase “document
filed by a complainant” means a document or electronic submission (such as by electronic mail
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 signs a formal complaint, the
Title IX Coordinator is not a complainant or otherwise a party under this part or under § 106.45,
and must comply with the requirements of this part, including § 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 determined by a reasonable person to be 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 34 U.S.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 or the recipient’s educational environment,
or 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 recipient to provide the supportive measures. The Title IX
Coordinator is responsible for coordinating the effective implementation of supportive
measures.
(b) As 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. For the purposes of this section, §§ 106.30, and 106.45, “education
program or activity” includes locations, events, or circumstances over which the recipient
exercised substantial control over both the respondent and the context in which the sexual
harassment occurs, and also includes any building owned or controlled by a student organization
that is officially recognized by a postsecondary institution. A recipient’s response must treat
complainants and respondents equitably by offering supportive measures as defined in § 106.30
to a complainant, and by following a grievance process that complies with § 106.45 before the
imposition of any disciplinary sanctions or other actions that are not supportive measures as
defined in § 106.30, against a respondent. The Title IX Coordinator must promptly contact the
complainant to discuss the availability of supportive measures as defined in § 106.30, consider
the complainant’s wishes with respect to supportive measures, inform the complainant of the
availability of supportive measures with or without the filing of a formal complaint, and explain
to the complainant the process for filing a formal complaint. The Department may not deem a
recipient to have satisfied the recipient’s duty to not be deliberately indifferent under this part
based on the recipient’s restriction of rights protected under the U.S. Constitution, including the
First Amendment, Fifth Amendment, and Fourteenth Amendment.
(b) Response to a formal complaint. (1) In response to a formal complaint, a recipient
must follow a grievance process that complies with § 106.45. With or without a formal
complaint, a recipient must comply with § 106.44(a).
(2) The Assistant Secretary will not deem a recipient’s determination regarding
responsibility to be evidence of deliberate indifference by the recipient, or 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 part precludes a recipient from removing a
respondent from the recipient’s education program or activity on an emergency basis, provided
that the recipient undertakes an individualized safety and risk analysis, determines that an
immediate threat to the physical health or safety of any student or other 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
may not be construed to modify any rights under the Individuals with Disabilities Education Act,
Section 504 of the Rehabilitation Act of 1973, or the Americans with Disabilities Act.
(d) Administrative leave. Nothing in this subpart precludes a recipient from placing a
non-student employee respondent on administrative leave during the pendency of a grievance
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 process 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) Grievance process. For the purpose of addressing formal complaints of sexual
harassment, a recipient’s grievance process must comply with the requirements of this section.
Any provisions, rules, or practices other than those required by this section that a recipient
adopts as part of its grievance process for handling formal complaints of sexual harassment as
defined in § 106.30, must apply equally to both parties.
(1) Basic requirements for grievance process. A recipient’s grievance process must—
(i) Treat complainants and respondents equitably by providing remedies to a complainant
where a determination of responsibility for sexual harassment has been made against the
respondent, and by 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. Such remedies may include the
same individualized services described in § 106.30 as “supportive measures”; however, remedies
need not be non-disciplinary or non-punitive and need not avoid burdening the respondent;
(ii) Require an objective evaluation of all relevant evidence – including 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 Title IX Coordinator,
investigator, 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
Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal
resolution process, receive training on the definition of sexual harassment in § 106.30, the scope
of the recipient’s education program or activity, how to conduct an investigation and grievance
process including hearings, appeals, and informal resolution processes, as applicable, and how to
serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest,
and bias. A recipient must ensure that decision-makers receive training on any technology to be
used at a live hearing and on issues of relevance of questions and evidence, including when
questions and evidence about 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 Title IX Coordinators, investigators, decision-makers, and 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 time frames for conclusion of the grievance process,
including reasonably prompt time frames for filing and resolving appeals and informal resolution
processes if the recipient offers informal resolution processes, and a process that allows for the
temporary delay of the grievance process or the limited extension of time 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 a party, a
party’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) State 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;
(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) 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 process that complies with this section, including
any informal resolution process.
(B) Notice of the allegations of sexual harassment potentially constituting sexual
harassment as defined in § 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 conduct allegedly constituting
sexual harassment under § 106.30, 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 inform the parties that they may have 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)(5)(vi) of this section. The
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) 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 whose identities are known.
(3) Dismissal of a formal complaint—(i) The recipient must investigate the allegations in
a formal complaint. If the conduct alleged in the formal complaint would not constitute sexual
harassment as defined in § 106.30 even if proved, did not occur in the recipient’s education
program or activity, or did not occur against a person in the United States, then the recipient
must 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 records
that 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 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 a 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 sufficient time for the party to prepare to participate;
(vi) Provide both parties an equal opportunity to inspect and review any evidence
obtained as part of the investigation that is directly related to the allegations raised in a formal
complaint, including the evidence upon which the recipient does not intend to rely in reaching a
determination regarding responsibility and inculpatory or exculpatory evidence whether obtained
from a party or other source, so that each party can meaningfully respond to the evidence prior to
conclusion of the investigation. Prior to completion of the investigative report, the recipient must
send to each party and the party’s advisor, if any, the evidence subject to inspection and review
in an electronic format or a hard copy, and the parties must have at least 10 days to submit a
written response, which the investigator will consider prior to completion of the investigative
report. The recipient must make all such evidence subject to the parties’ inspection and review
available at any hearing to give each party equal opportunity to refer to such evidence during the
hearing, including for purposes of cross-examination; and
(vii) Create an investigative report that fairly summarizes relevant evidence and, at least
10 days prior to a hearing (if a hearing is required under this section or otherwise provided) or
other time of determination regarding responsibility, send to each party and the party’s advisor, if
any, the investigative report in an electronic format or a hard copy, for their review and written
response.
(6) Hearings. (i) For postsecondary institutions, the recipient’s grievance process 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 the 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)(5)(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 the
parties 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 crossexamination 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 of the recipient’s choice,
who may be, but is not required to be, an attorney, to conduct cross-examination on behalf of that
party. Questions and evidence about the complainant’s sexual predisposition or prior sexual
behavior are not relevant, unless such questions and evidence about the complainant’s prior
sexual behavior are offered to prove that someone other than the respondent committed the
conduct alleged by the complainant, or if the questions and evidence concern specific incidents
of the complainant’s prior sexual behavior with respect to the respondent and are offered to
prove consent. If a party or witness does not submit to cross-examination at the live hearing, the
decision-maker(s) must not rely on any statement of that party or witness in reaching a
determination regarding responsibility; provided, however, that the decision-maker(s) cannot
draw an inference about the determination regarding responsibility based solely on a party’s or
witness’s absence from the live hearing or refusal to answer cross-examination or other
questions. Live hearings pursuant to this paragraph may be conducted with all parties physically
present in the same geographic location or, at the recipient’s discretion, any or all parties,
witnesses, and other participants may appear at the live hearing virtually, with technology
enabling participants simultaneously to see and hear each other. Recipients must create an audio
or audiovisual recording, or transcript, of any live hearing and make it available to the parties for
inspection and review.
(ii) For recipients that are elementary and secondary schools, and other recipients that are
not postsecondary institutions, the recipient’s grievance process may, but need not, provide for a
hearing. With or without a hearing, after the recipient has sent the investigative report to the
parties pursuant to paragraph (b)(5)(vii) of this section and before reaching a determination
regarding responsibility, the decision-maker(s) must afford each party the opportunity to submit
written, relevant questions that a party wants asked of any party or witness, provide each party
with the answers, and allow for additional, limited follow-up questions from each party. With or
without a hearing, questions and evidence about the complainant’s sexual predisposition or prior
sexual behavior are not relevant, unless such questions and evidence about the complainant’s
prior sexual behavior are offered to prove that someone other than the respondent committed the
conduct alleged by the complainant, or if the questions and evidence concern specific incidents
of the complainant’s prior sexual behavior with respect to the respondent and are offered to
prove consent. The decision-maker(s) must explain to the party proposing the questions any
decision to exclude a question as not relevant.
(7) 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 the
standard of evidence described in paragraph (b)(1)(vii) of this section.
(ii) The written determination must include—
(A) Identification of the allegations potentially constituting sexual harassment as defined
in § 106.30;
2027
(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 whether remedies 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.
(iii) The recipient must provide the written determination to the parties simultaneously.
The determination regarding responsibility becomes final either on the date that the recipient
provides the parties with the written determination of the result of the appeal, if an appeal is
filed, or if an appeal is not filed, the date on which an appeal would no longer be considered
timely.
(iv) The Title IX Coordinator is responsible for effective implementation of any
remedies.
(8) Appeals. (i) A recipient must offer both parties an appeal from a determination
regarding responsibility, and from a recipient’s dismissal of a formal complaint or any
allegations therein, on the following bases:
(A) Procedural irregularity that affected the outcome of the matter;
(B) New evidence that was not reasonably available at the time the determination
regarding responsibility or dismissal was made, that could affect the outcome of the matter; and
(C) The Title IX Coordinator, investigator(s), or decision-maker(s) had a conflict of
interest or bias for or 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:
(A) Notify the other party in writing when an appeal is filed and implement appeal
procedures equally for both parties;
(B) Ensure that the decision-maker(s) for the appeal is not the same person as the
decision-maker(s) that reached the determination regarding responsibility or dismissal, the
investigator(s), or the Title IX Coordinator;
(C) Ensure that the decision-maker(s) for the appeal complies with the standards set forth
in paragraph (b)(1)(iii) of this section;
(D) Give both parties a reasonable, equal opportunity to submit a written statement in
support of, or challenging, the outcome;
(E) Issue a written decision describing the result of the appeal and the rationale for the
result; and
(F) Provide the written decision simultaneously to both parties.
(9) Informal resolution. A 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 to
participate 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: the allegations, the 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, provided, however, that at
any time prior to agreeing to a resolution, any party has the right to withdraw from the informal
resolution process and resume 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;
(ii) Obtains the parties’ voluntary, written consent to the informal resolution process; and
(iii) Does not offer or facilitate an informal resolution process to resolve allegations that
an employee sexually harassed a student.
(10) Recordkeeping. (i) A recipient must maintain for a period of seven 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) Any informal resolution and the result therefrom; and
(D) All materials used to train Title IX Coordinators, investigators, decision-makers, and
any person who facilitates 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) For each response required under § 106.44, a recipient must create, and maintain for a
period of seven 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 deliberately indifferent, and
document that it has taken measures designed to restore or preserve equal access to the
recipient’s education 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.

12. Add § 106.46 to 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 F–Retaliation
Sec.
106.71 Retaliation
106.72 Severability

Subpart F–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 or
filed 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:
Subpart G – Procedures
Sec.
106.81 Procedures
106.82 Severability

Subpart 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]
16. Remove the 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.

Source: https://www2.ed.gov/about/offices/list/ocr/docs/titleix-regs-unofficial.pdf , pages 2008-2033.