Category: Office for Civil Rights

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/

#MeToo Campus Civil Rights Discrimination Due Process False Allegations Free Speech Investigations Office for Civil Rights Sexual Harassment

Black Immigrant Chaplain Claims Christian College Used Bogus Title IX Investigation to Fire Him

Post author By saveadmin
Post date July 20, 2020

‘From the outset … race was very much at issue’

A professor’s race heavily factored into his firing on the grounds of making racially and sexually insensitive comments, according to his attorney.

Wheaton College, known informally as the Harvard of evangelical colleges, publicly announced the dismissal of Chaplain Tim Blackmon earlier this month, more than a month after his firing.

The 50-year-old black immigrant from the Netherlands has since vigorously disputed the allegations against him, telling the Chicago Tribune that “they are a complete misconstrual of the comments” he made.

President Philip Ryken justified the college’s firing of Blackmon by publicly accusing him of several violations Wheaton learned about last fall. He had “repeatedly used an ethnic slur” to refer to an Asian employee and suggested that a female staff member sit on his lap during a training session for sexual harassment, according to Wheaton’s statement.

The black chaplain also circulated a meme to employees about masturbation and “arranged” to have the book “The Complete Idiot’s Guide to the Kama Sutra” placed on a female staff member’s desk, the college claimed.

Wheaton claimed that Blackmon “admitted to certain allegations, which is patently untrue,” his attorney Andrew Miltenberg told The College Fix in an email. The ex-chaplain “continues to refute” both the allegations and the context Wheaton applied to them.

“From the outset, Chapl[a]in Blackmon’s race was very much at issue,” contrary to Wheaton’s race-neutral portrayal of the allegations, Miltenberg said.

Citing Wheaton’s allegedly poor record with racial and ethnic diversity, “especially with the African American community,” the attorney said that Blackmon has been treated far worse than his white colleagues.

Pressure to conform with the prevailing views of the #MeToo movement and the controversies surrounding Title IX investigations resulted in an overreaction from the college, the attorney added.

Ultimately, Wheaton chose to oust Blackmon so that it could maintain the mantle of being an “ethnically diverse” college all the while “return[ing] to its roots – that being a primarily white educational institution,” Miltenberg alleged. Yet the fired employee and his attorney have not decided whether to take legal action yet.

When asked to specify some of the college’s allegations about Blackmon – including the exact racial slur – beyond its curt statement, Director of Marketing Joseph Moore stated: “Wheaton College is not providing further comment.”

That supposed slur, Blackmon told a blogger last week, stemmed from an “inside joke” about the song “Black and Yellow” by the rapper Wiz Khalifa and its relevance to working in a “predominantly white institution.”

Theological articles he shared were ‘ideologically problematic’ for accuser

Wheaton’s internal statement to its community, which Moore provided and which preceded Blackmon’s response, made clear that the college did not find that he engaged in “sexually immoral relationships or physical sexual misconduct.” Rather, its investigation “revealed conduct inconsistent with Wheaton’s policies and commitments.”

Moore did not not provide The Fix with the specific policies and commitments purportedly breached by Blackmon, however.

“To be clear, I was completely blind-sided by this Title IX investigation,” Blackmon said via his attorney in response to Wheaton’s statement.

“I recently learned this was the second time this individual filed a Title IX against me,” the first one occurring in 2017 after Blackmon had “shared five theological articles that the complainant [accuser] deemed ideologically problematic.” (He doesn’t give a more specific description of the accuser; Wheaton’s language suggests at least two women complained.)

Wheaton’s Title IX office didn’t investigate at the time, “as it was a clear misuse of the Title IX investigative process,” the chaplain continued. But in the most recent complaint, he said that “several of my comments have been taken completely out of their factual and, in some cases, religious context.”

He emphasized that no one accused him of “flirtation, inappropriate relationships, sexual misconduct or any sexual action towards anyone,” and neither the accuser nor “any witness, communicate[d] offense or discomfort.”

While it left out his race when justifying his firing, Wheaton emphasized Blackmon’s race when hiring him five years ago as the first nonwhite chaplain in its 155-year history.

Rodney Sisco, director of the Office of Multicultural Development, told The Wheaton Record: “I think change is change, and change is always difficult. Chaplain Blackmon is going to be seen differently.”

While Sisco was personally excited to have a “person of color leading the chaplain’s office,” he suspected that some community members would be “a little worried, asking, ‘Have we made some sort of strange mistake?’” He concluded by saying: “I think there will be some folks who push against the college.”

At the time, only 2.3 percent of the student body was comprised of African Americans. The most recent figures from 2017 put it at 3.03 percent––its white population is at 70.8 percent. (Ranking service College Factual says Wheaton has more “non-resident alien” students than African Americans.) This is at a college that was founded by evangelical abolitionists in 1860 and was a major stop along the Underground Railroad.

“Wheaton has failed in its attempt, if any were even made, to achieve truly measurable and transformative cultural diversity,” Miltenberg, who has represented hundreds of college students accused of sexual misconduct, told The Fix.

‘The Complete Idiot’s Guide to the Kama Sutra’ was a regifted ‘gag’

In a separate public statement, the attorney alleged that Wheaton administrators “are now publicly smearing and defaming my client in the media by using out of context statements and false accusations.”

Contrary to President Ryken’s claim, Blackmon “never asked his secretary to sit on his lap during a sexual harassment training,” and “never harassed anyone, sexually or racially,” according to Miltenberg. The college simply “weaponized the Title IX process to get rid of someone whose words and ideas didn’t always conform to their views.”

The lap allegation, Blackmon told The Roys Report blog last week, stemmed from his critical comments about “the mandatory (but rather patronizing) sexual harassment training video” he was required to watch when starting at Wheaton in September 2015.

He said he told the accuser: “Come on, it’s not like I don’t know what sexual harassment is. It’s not like I’m asking my secretary to sit on my lap and take the training for me.”

The context for another allegation, about his comments to a newly married female employee, was the fact that her “brand-new husband had been pulling all-nighters for grad-school,” Blackmon continued:

As a way of celebrating their newly wedded bliss I said, “Maybe you should surprise him and pay him a conjugal visit.” As to the conjugal-visit comment, I was genuinely trying to commiserate with her about the challenges of graduate school and newlyweds.

Regarding the incident involving “The Complete Idiot’s Guide to the Kama Sutra,” Miltenberg told The Fix that Blackmon “received the book from a former parishioner.”

That person’s wife wrote about the incident in a comment on a blog post on the Blackmon controversy: “I left the book on Tim’s desk. During our annual Church bazar [sic] I found the book in the donated items as we set up.” She thought that it would be “ironic to put the book on Tim’s desk.”

Later, after she and her husband “laughed about it,” her husband “snuck into Tim’s office and hid it in his library where it sat for years. I guess it made its way to Chicago. I thought it was funny to put a book that silly in Tim’s office. And the idea I was a victim is stupid.”

According to Miltenberg, at some point Blackmon “told the complainant the story after he found the surprise gag gift in his [college’s] library and then gave her the book. He thought it was a funny story. That’s all there was to it.” (Blackmon told The Roys Report he shared the story with others, but admitted that it sounded bad when “taken out of its contexts without the prank.”)

Because this was “such a benign event,” the attorney continued, “we believe 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.

‘China-man’ was an ‘inside joke’

Regarding the “ethnic slur” he allegedly used repeatedly toward an Asian American employee, Blackmon provided the context to The Roys Report.

When he started working at Wheaton, Blackmon said one of his Korean ministry colleagues was “mistaken” for a professor. They “commiserated about the realities of beginning to work” at the predominantly white institution, comparing their situation to the Wiz Khalifa song “Black and Yellow”:

[A] black pastor from Holland and a Korean ministry associate. I said, “Maybe we should call you the China-man because people can’t even tell one Asian from another, one Chinese from a Korean.” More laughter ensued and for the next couple of weeks we commiserated about the ironies of working in a predominantly white institution, and we soon moved on from our inside joke and got to work.

“This,” said Blackmon, “is what they are considering the racial/ethnic slur.”

Miltenberg also suspects that “Wheaton may have overreacted out of fear of public pressure given the #MeToo movement and other Title IX related controversies as of late”:

Wheaton has repeatedly shifted the landscape in Chaplain Blackmon’s case, at times claiming it was Title IX issue, and other times, suggesting that the situation did not fall under Title IX.

This shifting has impeded Blackmon’s ability to appropriately respond to the allegations as well as “denying him the right to counsel,” Miltenberg said. The college has also ignored its own “employee conflict resolution procedures,” he claimed.

Its actions “have put Chaplain Blackmon’s future very much at risk,” Miltenberg said.

Source: https://www.thecollegefix.com/black-immigrant-chaplain-claims-christian-college-used-bogus-title-ix-investigation-to-fire-him/

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 Office for Civil Rights Sexual Assault Sexual Harassment

PR: SAVE Files Amicus Brief Against 18 Attorneys’ General, In Support of New Title IX Regulation

Post author By saveadmin
Post date July 10, 2020

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

SAVE Files Amicus Brief Against 18 Attorneys’ General, In Support of New Title IX Regulation

WASHINGTON / July 10, 2020 – SAVE filed an Amicus Brief yesterday in support of the recently released Title IX regulation, which seeks to restore fairness and due process in campus sexual harassment cases. The Amicus Brief highlights the legal inadequacies of the attorneys’ general Complaint, and urges that the Court dismiss their request for a preliminary injunction.

In 2011 the Department of Education issued a “Dear Colleague Letter” that imposed a range of new campus adjudication procedures for sexual assault cases. These changes removed a number of due process protections, such as the right of parties to be represented by counsel. As a result, hundreds of lawsuits were filed against colleges (1). Amidst intense public pressure, the Department of Education revoked its notorious Dear Colleague Letter in 2017, and later issued a new regulation on May 6, 2020. (2)

One month later, the attorneys’ general from 18 states filed a lawsuit seeking to block the long-awaited regulation. The lawsuit claimed the new regulation will “reverse decades of effort to end the corrosive effects of sexual harassment on equal access to education.” (3)

In response, the SAVE Brief highlights that Title IX “is not limited to the protection of one sex or gender; it protects all.” (page 9) This contrasts with the assertion by the California Women’s Law Center Amicus that states Title IX only serves to protect “women and girls.” (page 8).

The SAVE Brief enumerates the types of sex-based discrimination against male students: Biased educational materials; inconsistent enforcement of policies for male and female students; and a double-standard for intoxication policies. (pages 10-16).

The Brief also provides examples of universities that refused to investigate allegations by male students claiming to be victims of female-perpetrated sexual assault. According to the U.S. Centers for Disease Control, each year 1.7 million men are sexually “made to penetrate,” compared to 1.5 million women who are raped (4).

Noting the hundreds of lawsuits filed against colleges, the SAVE Brief reaches a resounding conclusion:

“This demonstrates a simple truth: male students constitute the overwhelming majority of victims of proceedings on campus that are unlawful and constitute discrimination on the basis of sex, in violation of Title IX. Plaintiffs totally ignore this truth in their Complaint and subsequent Motion for Preliminary Injunction. This is especially astounding given that the deprivation of students’ rights in the disciplinary process,…was a substantial predicate for the issuance of the Regulation.” (pages 9-10)

The SAVE Amicus Brief is available online (5).

Links:

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.

Campus Dating Violence Department of Education Domestic Violence Due Process Investigations Office for Civil Rights Sexual Assault Sexual Harassment Title IX Victims

PR: New Sexual Assault Regulation Will Benefit Victims, For Numerous Reasons

Post author By saveadmin
Post date May 8, 2020

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

New Sexual Assault Regulation Will Benefit Victims, For Numerous Reasons

WASHINGTON / May 8, 2020 – SAVE is today releasing an analysis that enumerates the many ways by which the newly released Title IX regulation will benefit victims of campus sexual assault. Title IX is the federal law that bans sex discrimination in schools. The new regulation was released on Wednesday by the Department of Education (1).

Titled, “Analysis: New Title IX Regulation Will Support and Assist Complainants in Multiple Ways,” the SAVE report identifies seven broad ways that the new federal regulation benefits victims and survivors:

Establishes a legally enforceable duty of universities to respond to such cases in a timely manner.
Requires the school to investigate allegations of sexual assault, domestic violence, dating violence, and harassment.
Requires the school to offer complainants supportive measures, such as class or dorm reassignments or no-contact orders, even if an investigation is not initiated.
Defines the procedures to properly investigate and adjudicate such complaints.
Promotes victim autonomy by allowing the complainant to participate in dispute resolution or withdraw a complaint if desired.
Ensures complainants are not required to disclose any confidential medical, psychological, or similar records.
Discourages minor complaints that tend to dilute the availability of resources and harm the credibility of future victims.

Nashville attorney Michelle Owens provides examples of lawsuits from her own practice that fall into the category of minor and trivial complaints:

A student who was charged under Title IX for allegedly touching a girl on her head. This was not on a date or in a romantic setting.
One client was charged for sexual misconduct for touching a student on her elbow at a dance because he was trying to move her out of the way of another person.
One male student was charged for giving an honest compliment to a friend on her outfit.

The new SAVE document identifies 28 legally enforceable provisions in the new regulation that will benefit and support victims. Three examples of these provisions are: “Complainants are assured that unwelcome conduct that is severe, pervasive, and objectively offensive will not be tolerated at their institution;” “Complainants are assured that respondents that are deemed an immediate threat to safety will be removed from campus;” and “Complainants must be provided an advisor free of charge to conduct cross-examination on their behalf.”

SAVE has identified numerous cases in which campus disciplinary committees, sometimes derisively referred to as “kangaroo courts,” have shortchanged victims (2). The Independent Women’s Forum argues that “Survivors should praise efforts to ensure that disciplinary decisions are not overturned by courts or regarded as illegitimate in the court of public opinion.” (3)

There is no evidence that the previous campus policies have succeeded in reducing campus sexual assault. A recent report from the American Association of Universities revealed an actual increase in campus sexual assaults from 2015 to 2019 (4).

The SAVE analysis is available online: http://www.saveservices.org/2020/05/analysis-new-title-ix-regulation-will-support-and-assist-complainants-in-multiple-ways/

Links:

Campus DED Sexual Assault Directive Due Process Office for Civil Rights Press Release

PR: Universities Face Major Changes in Title IX Landscape as Administrators Prepare for Fall Semester

Post author By saveadmin
Post date August 14, 2017

Contact: Christopher Perry

Telephone: 301-801-0608

Email: cperry@saveservices.org

Universities Face Major Changes in Title IX Landscape as Administrators Prepare for Fall Semester

WASHINGTON / August 14, 2017 – Last week the University of Georgia Board of Regents approved wide-ranging changes in the sexual assault policies at the campuses it oversees. The revisions were designed to strengthen oversight, assure a consistent process for all cases, and place more emphasis on prevention and education (1). The changes were made in response to developments in the Title IX landscape that are occurring across the nation.

Stop Abusive and Violent Environments (SAVE) has identified eight shifts in the policy landscape that have emerged in the past 12 months. SAVE invites administrators to review these developments and make necessary updates to campus policies:

State legislation. Responding to reports of unconstitutional practices on campuses, state lawmakers have introduced 22 bills designed to restore free speech or due process protections to college students. To date, eight of these bills have been passed into law in Colorado, Nevada, North Carolina, North Dakota, Tennessee, Utah, Vermont, and Virginia (2).

Liability risks. The number of lawsuits by accused students is on the rise. Since 2013, judges have issued rulings on 55 lawsuits filed against universities that were at least partly favorable to the accused student (3). Last week it was reported that an average of $187,000 is spent per case filed by accused students (4).

“Victim-centered” investigations. Investigations based on the “always believe the victim” model are often implicated in lawsuits by accused students against universities. An analysis of these lawsuits concluded that “victim-centered” approaches “are inconsistent with the most basic notions of fairness, repudiate the presumption of innocence, and are likely to lead to wrongful determinations of guilt.” (5)

OCR complaints by identified victims. Following issuance of the Dear Colleague Letter in 2011, thousands of identified victims have filed complaints with the Office for Civil Rights alleging mistreatment by campus officials. Some identified victims claimed their experience with the campus adjudication process was more traumatic than the original assault (6).

Administrator concerns. John McCardell, Vice Chancellor of the University of the South at Sewanee, Tennessee, recently charged the OCR’s Dear Colleague Letter has “imposed on entities ill-trained or equipped for the task, a quasi-judicial role, with the implication that ‘justice,’ however defined, can be satisfactorily rendered through processes that cannot possibly replicate a genuine legal proceeding.” (7) An Inside Higher Ed article on the annual meeting of the National Association of College and University Attorneys reported, “Many college and university officials felt overregulated by the Obama administration, and have expressed interest in seeing that oversight eased.” (8)

OCR investigations. In June, the Office for Civil Rights announced that it will narrow its investigational approach to focus only on the specific allegations of the complaint, not on cases that have been previously resolved by the college (9).

Expert reports. Five independent reports have recently called for an overhaul of the campus adjudication system (10):

American College of Trial Lawyers: Position Statement Regarding Campus Sexual Assault Investigations
SAVE: Six-Year Experiment in Campus Jurisprudence Fails to Make the Grade
NCHERM Group: Due Process and the Sex Police
American Bar Association Task Force for Promoting Fairness in Campus Sexual Misconduct Cases
Heritage Foundation: Campus Sexual Assault: Understanding the Problem and How to Fix It

Editorial criticisms. Thus far in 2017, over 300 editorials have been published at various newspapers and internet sites criticizing the recurring due process violations on campuses (11).

Citations:

SAVE (Stop Abusive and Violent Environments) is working to restore free speech and due process on college campuses: www.saveservices.org

Campus Office for Civil Rights Sexual Assault

PR: Six-Year Experiment in Campus Sex Jurisprudence Found to Be a Failure: Report

Post author By saveadmin
Post date April 4, 2017

Contact: Chris Perry

Telephone: 301-801-0608

Email: cperry@saveservices.org

Six-Year Experiment in Campus Sex Jurisprudence Found to Be a Failure: Report

WASHINGTON / April 4, 2017 – The current system of campus-based adjudications for sexual assault has turned out to be inefficient, unfair, and in some cases harmful, according to a report released today by the non-profit group, Stop Abusive and Violent Environments. The report, “Six-Year Experiment in Campus Jurisprudence Fails to Make the Grade,” is being issued on the six-year anniversary of the controversial “Dear Colleague Letter” on sexual violence, first issued by the Department of Education on April 4, 2011.

The SAVE report identifies numerous cases in which identified victims of sexual assault claimed their colleges failed to appropriately investigate, adjudicate, and sanction their complaints. In one case, a female student charged that campus police at Old Dominion University detained her for eight hours, preventing her from seeking medical attention for the assault. In January, she filed a lawsuit against the university, requesting $75,000 in damages.

Many of these women’s cases have been reported to the federal Office for Civil Rights. The number of complaints has risen dramatically since 2013, leading to a growing backlog of investigations.

Male students have been wrongfully expelled based on false allegations of sexual assault, as well. Among the 51 lawsuits filed by accused students since 2012, a majority of judges have ruled at least partly in favor of the expelled student.

Some of the judges issued strongly worded critiques of the campus “Kangaroo Courts.” In one recent case, a judge ruled that the process at San Diego State University for adjudicating a sexual assault accusation was so biased that it was “enough to shock the Court’s conscience.”

Campus administrators have felt caught between shifting federal requirements and the reality of campus committees that lack the training, expertise, and resources to reliably adjudicate complex rape cases. Some colleges have spent millions of dollars in a sisyphean effort to comply with the federal requirements.

SAVE calls on the Department of Education to repeal its 2011 Dear Colleague Letter, which mandated that campus tribunals investigate and resolve rape allegations. Instead, SAVE urges the enactment of the Campus Equality, Fairness, and Transparency Act. CEFTA encourages the referral of campus rape cases to law enforcement officials and promotes due process: http://www.saveservices.org/sexual-assault/cefta/

The SAVE report can be viewed here: http://www.saveservices.org/reports/

SAVE (Stop Abusive and Violent Environments) is working for fair and effective solutions to campus sexual assault: www.saveservices.org

Accountability Campus Civil Rights Department of Justice Discrimination Law Enforcement Office for Civil Rights Press Release Research Training Victims

PR: Expert Panel Calls on Lawmakers to Bring an End to Campus ‘Kangaroo Court’ Investigations

Post author By saveadmin
Post date October 11, 2016

Contact: Gina Lauterio
Telephone: 301-801-0608
Email: glauterio@saveservices.org

Expert Panel Calls on Lawmakers to Bring an End to Campus ‘Kangaroo Court’ Investigations

WASHINGTON / October 11, 2016 – Warning “victim-centered” investigations are “inconsistent with basic notions of fairness and justice,” an Expert Panel has issued a report calling on lawmakers to end such approaches in campus sexual assault cases (1). The Expert Panel was convened in observance of Wrongful Conviction Day on October 4 and addressed the growing problem of “victim-centered” investigations at colleges and in the criminal justice system.

“Victim-centered” methods abandon traditional notions of impartiality and objectivity, and instead call on investigators to presume that “all sexual assault cases are valid unless established otherwise by investigative findings,” as one report enjoins (2). Such recommendations represent a negation of the long-held tenet of the presumption of innocence, and are likely to lead to wrongful determinations of guilt.

One of the expert panelists was Michael Conzachi, a former homicide detective and police academy instructor. Conzachi sharply criticized the University of Texas-Austin document Blueprint for Campus Police, saying its recommendations to remove inconsistent statements and exculpatory information from investigational reports represent a potential violation of laws that bar evidence concealment and tampering.

E. Everett Bartlett, president of the Center for Prosecutor Integrity, reported that many lawsuits by accused students against universities now include allegations of investigational impropriety. He identified nine categories of investigational biases claimed in campus lawsuits such as Overt bias/Predetermination of guilt and Inadequate investigator qualifications.

SAVE has developed a model bill titled the Campus Equality, Fairness, and Transparency Act (CEFTA). The bill mandates the use of “justice-centered” investigations that would require campus investigators to “discharge their duties with objectivity and impartiality” (3).

Campus Office for Civil Rights Sexual Assault

PR: Book Warns of ‘New Totalitarianism’ on Campus, Links Problem to 2011 Federal Mandate

Post author By saveadmin
Post date May 9, 2016

Contact: Gina Lauterio

Email: glauterio@saveservices.org

Book Warns of ‘New Totalitarianism’ on Campus, Links Problem to 2011 Federal Mandate

WASHINGTON / May 9, 2016 – A provocative new book spotlights the dramatic erosion of free speech and due process rights on college campuses, and pins much of the problem on the federal Office for Civil Rights. Rape Culture Hysteria: Fixing the Damage Done to Men and Women calls on lawmakers to take determined measures to restore democratic ideals and constitutional protections to universities.

Written by social commentator Wendy McElroy, Rape Culture Hysteria examines the factual basis of “rape culture” and concludes it is “not a real crisis but a manufactured one.” The book portrays Rolling Stone magazine’s report of an alleged gang-rape at the University of Virginia as emblematic of the hysteria. Even though the magazine account was quickly exposed as a fraud, rape culture proponents continued to insist that university investigators should “always believe the victim.”

Much of the problem can be traced to the Department of Education’s Office for Civil Rights (OCR), which issued a Dear Colleague Letter on campus sexual violence in 2011. The policy required colleges to eliminate many due process protections in their handling of sexual assault allegations. As a result, the “treatment of accused males on campus has worsened dramatically,” McElroy posits.

McElroy charges the 2011 Dear Colleague Letter and other “government policies are instrumental in turning American universities into bankrupt social experiments.” As a result, a new “high-paid, careerist professional caste” of college administrators has been created, she writes.

The book identifies a number of solutions, including reducing the OCR budget, treating sexual violence as a “criminal matter by turning accusations over to the police,” and devolving educational authority to the states.

“Political correctness is the new totalitarianism,” McElroy concludes. More information on the book can be seen here: http://www.amazon.com/dp/B01EENF4HW/ref=tsm_1_fb_lk

SAVE is working for evidence-based, constitutionally sound solutions to campus sexual assault: www.saveservices.org