prompt_front: You are given two reports by the government agency.



Question: Write a one-page summary of the report 1.

Report 1: F ederal law provides a variety of powers for the President to use in response to crisis, exigency, or emergency circumstances threatening the nation  They are not limited to military or war situations  Some of these authorities, deriving from the Constitution or statutory law, are continuously available to the President with little or no qualification  Others—statutory delegations from Congress—exist on a standby basis and remain dormant until the President formally declares a national emergency  Congress may modify, rescind, or render dormant such delegated emergency authority  Until the crisis of World War I, Presidents utilized emergency powers at their own discretion  Proclamations announced the exercise of exigency authority  During World War I and thereafter, Chief Executives had available to them a growing body of standby emergency authority that became operative upon the issuance of a proclamation declaring a condition of national emergency  Sometimes such proclamations confined the matter of crisis to a specific policy sphere, and sometimes they placed no limitation whatsoever on the pronouncement  These activations of standby emergency authority remained acceptable practice until the era of the Vietnam War  In 1976, Congress curtailed this practice with the passage of the National Emergencies Act  The exercise of emergency powers had long been a concern of the classical political theorists, including the 18 th -century English philosopher John Locke, who had a strong influence upon the Founding Fathers in the United States  A preeminent exponent of a government of laws and not of men, Locke argued that occasions may arise when the executive must exert a broad discretion in meeting special exigencies or "emergencies" for which the legislative power provided no relief or existing law granted no necessary remedy  He did not regard this prerogative as limited to wartime or even to situations of great urgency  It was sufficient if the "public good" might be advanced by its exercise  Emergency powers were first expressed prior to the actual founding of the Republic  Between 1775 and 1781, the Continental Congress passed a series of acts and resolves that count as the first expressions of emergency authority  These instruments dealt almost exclusively with the prosecution of the Revolutionary War  At the Constitutional Convention of 1787, emergency powers, as such, failed to attract much attention during the course of debate over the charter for the new government  It may be argued, however, that the granting of emergency powers by Congress is implicit in its Article I, Section 8, authority to "provide for the common Defense and general Welfare;" the commerce clause; its war, armed forces, and militia powers; and the "necessary and proper" clause empowering it to make such laws as are required to fulfill the executions of "the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof " There is a tradition of constitutional interpretation that has resulted in so-called implied powers, which may be invoked in order to respond to an emergency situation  Locke seems to have anticipated this practice  Furthermore, Presidents have occasionally taken an emergency action that they assumed to be constitutionally permissible  Thus, in the American governmental experience, the exercise of emergency powers has been somewhat dependent upon the Chief Executive's view of the presidential office  Perhaps the President who most clearly articulated a view of his office in conformity with the Lockean position was Theodore Roosevelt  Describing what came to be called the "stewardship" theory of the presidency, Roosevelt wrote of his "insistence upon the theory that the executive power was limited only by specific restrictions and prohibitions appearing in the Constitution or imposed by the Congress under its constitutional powers " It was his view "that every executive officer, and above all every executive officer in high position, was a steward of the people," and he "declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it " Indeed, it was Roosevelt's belief that, for the President, "it was not only his right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws " Opposed to this view of the presidency was Roosevelt's former Secretary of War, William Howard Taft, his personal choice for and actual successor as Chief Executive  He viewed the presidential office in more limited terms, writing "that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary to its exercise " In his view, such a "specific grant must be either in the Federal Constitution or in an act of Congress passed in pursuance thereof  There is," Taft concluded, "no undefined residuum of power which he can exercise because it seems to him to be in the public interest " Between these two views of the presidency lie various gradations of opinion, resulting in perhaps as many conceptions of the office as there have been holders  One authority has summed up the situation in the following words: Emergency powers are not solely derived from legal sources  The extent of their invocation and use is also contingent upon the personal conception which the incumbent of the Presidential office has of the Presidency and the premises upon which he interprets his legal powers  In the last analysis, the authority of a President is largely determined by the President himself  Apart from the Constitution, but resulting from its prescribed procedures, there are statutory grants of power for emergency conditions  The President is authorized by Congress to take some special or extraordinary action, ostensibly to meet the problems of governing effectively in times of exigency  Sometimes these laws are of only temporary duration  The Economic Stabilization Act of 1970, for example, allowed the President to impose certain wage and price controls for about three years before it expired automatically in 1974  The statute gave the President emergency authority to address a crisis in the nation's economy  Many of these laws are continuously maintained or permanently available for the President's ready use in responding to an emergency  The Defense Production Act, originally adopted in 1950 to prioritize and regulate the manufacture of military material, is an example of this type of statute  There are various standby laws that convey special emergency powers once the President formally declares a national emergency activating them  In 1973, a Senate special committee studying emergency powers published a compilation identifying some 470 provisions of federal law delegating to the executive extraordinary authority in time of national emergency  The vast majority of them are of the standby kind—dormant until activated by the President  However, formal procedures for invoking these authorities, accounting for their use, and regulating their activation and application were established by the National Emergencies Act of 1976  Relying upon constitutional authority or congressional delegations made at various times over the past 230 years, the President of the United States may exercise certain powers in the event that the continued existence of the nation is threatened by crisis, exigency, or emergency circumstances  What is a national emergency? In the simplest understanding of the term, the dictionary defines emergency as "an unforeseen combination of circumstances or the resulting state that calls for immediate action " In the midst of the crisis of the Great Depression, a 1934 Supreme Court majority opinion characterized an emergency in terms of urgency and relative infrequency of occurrence as well as equivalence to a public calamity resulting from fire, flood, or like disaster not reasonably subject to anticipation  An eminent constitutional scholar, the late Edward S  Corwin, explained emergency conditions as being those that "have not attained enough of stability or recurrency to admit of their being dealt with according to rule " During congressional committee hearings on emergency powers in 1973, a political scientist described an emergency in the following terms: "It denotes the existence of conditions of varying nature, intensity and duration, which are perceived to threaten life or well-being beyond tolerable limits " Corwin also indicated it "connotes the existence of conditions suddenly intensifying the degree of existing danger to life or well-being beyond that which is accepted as normal " There are at least four aspects of an emergency condition  The first is its temporal character: An emergency is sudden, unforeseen, and of unknown duration  The second is its potential gravity: An emergency is dangerous and threatening to life and well-being  The third, in terms of governmental role and authority, is the matter of perception: Who discerns this phenomenon? The Constitution may be guiding on this question, but it is not always conclusive  Fourth, there is the element of response: By definition, an emergency requires immediate action but is also unanticipated and, therefore, as Corwin notes, cannot always be "dealt with according to rule " From these simple factors arise the dynamics of national emergency powers  These dynamics can be seen in the history of the exercise of emergency powers  In 1792, residents of western Pennsylvania, Virginia, and the Carolinas began forcefully opposing the collection of a federal excise tax on whiskey  Anticipating rebellious activity, Congress enacted legislation providing for the calling forth of the militia to suppress insurrections and repel invasions  Section 3 of this statute required that a presidential proclamation be issued to warn insurgents to cease their activity  If hostilities persisted, the militia could be dispatched  On August 17, 1794, President Washington issued such a proclamation  The insurgency continued  The President then took command of the forces organized to put down the rebellion  Here was the beginning of a pattern of policy expression and implementation regarding emergency powers  Congress legislated extraordinary or special authority for discretionary use by the President in a time of emergency  In issuing a proclamation, the Chief Executive notified Congress that he was making use of this power and also apprised other affected parties of his emergency action  Over the next 100 years, Congress enacted various permanent and standby laws for responding largely to military, economic, and labor emergencies  During this span of years, however, the exercise of emergency powers by President Abraham Lincoln brought the first great dispute over the authority and discretion of the Chief Executive to engage in emergency actions  By the time of Lincoln's inauguration (March 4, 1861), seven states of the lower South had announced their secession from the Union; the Confederate provisional government had been established (February 4, 1861); Jefferson Davis had been elected (February 9, 1861) and installed as president of the confederacy (February 18, 1861); and an army was being mobilized by the secessionists  Lincoln had a little over two months to consider his course of action  When the new President assumed office, Congress was not in session  For reasons of his own, Lincoln delayed calling a special meeting of the legislature but soon ventured into its constitutionally designated policy sphere  On April 19, he issued a proclamation establishing a blockade on the ports of the secessionist states, "a measure hitherto regarded as contrary to both the Constitution and the law of nations except when the government was embroiled in a declared, foreign war " Congress had not been given an opportunity to consider a declaration of war  The next day, the President ordered the addition of 19 vessels to the navy "for purposes of public defense " A short time later, the blockade was extended to the ports of Virginia and North Carolina  By a proclamation of May 3, Lincoln ordered that the regular army be enlarged by 22,714 men, that navy personnel be increased by 18,000, and that 42,032 volunteers be accommodated for three-year terms of service  The directive antagonized many Representatives and Senators, because Congress is specifically authorized by Article I, Section 8, of the Constitution "to raise and support armies " In his July message to the newly assembled Congress, Lincoln suggested, "These measures, whether strictly legal or not, were ventured upon under what appeared to be a popular and a public necessity, trusting then, as now, that Congress would readily ratify them  It is believed," he wrote, "that nothing has been done beyond the constitutional competency of Congress " Congress subsequently did legislatively authorize, and thereby approve, the President's actions regarding his increasing armed forces personnel and would do the same later concerning some other questionable emergency actions  In the case of Lincoln, the opinion of scholars and experts is that "neither Congress nor the Supreme Court exercised any effective restraint upon the President " The emergency actions of the Chief Executive were either unchallenged or approved by Congress and were either accepted or—because of almost no opportunity to render judgment—went largely without notice by the Supreme Court  The President made a quick response to the emergency at hand, a response that Congress or the courts might have rejected in law but, nonetheless, had been made in fact and with some degree of popular approval  Similar controversy would arise concerning the emergency actions of Presidents Woodrow Wilson and Franklin D  Roosevelt  Both men exercised extensive emergency powers with regard to world hostilities, and Roosevelt also used emergency authority to deal with the Great Depression  Their emergency actions, however, were largely supported by statutory delegations and a high degree of approval on the part of both Congress and the public  During the Wilson and Roosevelt presidencies, a major procedural development occurred in the exercise of emergency powers—use of a proclamation to declare a national emergency and thereby activate all standby statutory provisions delegating authority to the President during a national emergency  The first such national emergency proclamation was issued by President Wilson on February 5, 1917  Promulgated on the authority of a statute establishing the U S  Shipping Board, the proclamation concerned water transportation policy  It was statutorily terminated, along with a variety of other wartime measures, on March 3, 1921  President Franklin D  Roosevelt issued the next national emergency proclamation some 48 hours after assuming office  Proclaimed March 6, 1933, on the somewhat questionable authority of the Trading with the Enemy Act of 1917, the proclamation declared a "bank holiday" and halted a major class of financial transactions by closing the banks  Congress subsequently gave specific statutory support for the Chief Executive's action with the passage of the Emergency Banking Act on March 9  Upon signing this legislation into law, the President issued a second banking proclamation, based upon the authority of the new law, continuing the bank holiday until it was determined that banking institutions were capable of conducting business in accordance with new banking policy  Next, on September 8, 1939, President Roosevelt promulgated a proclamation of "limited" national emergency, though the qualifying term had no meaningful legal significance  Almost two years later, on May 27, 1941, he issued a proclamation of "unlimited" national emergency  This action, however, did not actually make any important new powers available to the Chief Executive in addition to those activated by the 1939 proclamation  The President's purpose in making the second proclamation was largely to apprise the American people of the worsening conflict in Europe and growing tensions in Asia  These two war-related proclamations of a general condition of national emergency remained operative until 1947, when certain of the provisions of law they had activated were statutorily rescinded  Then, in 1951, Congress terminated the declaration of war against Germany  In the spring of the following year, the Senate ratified the treaty of peace with Japan  Because these actions marked the end of World War II for the United States, legislation was required to keep certain emergency provisions in effect  Initially, the Emergency Powers Interim Continuation Act temporarily maintained this emergency authority  It was subsequently supplanted by the Emergency Powers Continuation Act, which kept selected emergency delegations in force until August 1953  By proclamation in April 1952, President Harry S  Truman terminated the 1939 and 1941 national emergency declarations, leaving operative only those emergency authorities continued by statutory specification  President Truman's 1952 termination, however, specifically exempted a December 1950 proclamation of national emergency he had issued in response to hostilities in Korea  This condition of national emergency would remain in force and unimpaired well into the era of the Vietnam War  Two other proclamations of national emergency would also be promulgated before Congress once again turned its attention to these matters  Faced with a postal strike, President Richard Nixon declared a national emergency in March 1970, thereby gaining permission to use units of the Ready Reserve to assist in moving the mail  President Nixon proclaimed a second national emergency in August 1971 to control the balance of payments flow by terminating temporarily certain trade agreement provisos and imposing supplemental duties on some imported goods  In the years following the conclusion of U S  armed forces involvement in active military conflict in Korea, occasional expressions of concern were heard in Congress regarding the continued existence of President Truman's 1950 national emergency proclamation long after the conditions prompting its issuance had disappeared  There was some annoyance that the President was retaining extraordinary powers intended only for a time of genuine emergency and a feeling that the Chief Executive was thwarting the legislative intent of Congress by continuously failing to terminate the declared national emergency  Growing public and congressional displeasure with the President's exercise of his war powers and deepening U S  involvement in hostilities in Vietnam prompted interest in a variety of related matters  For Senator Charles Mathias, interest in the question of emergency powers developed out of U S  involvement in Vietnam and the incursion into Cambodia  Together with Senator Frank Church, he sought to establish a Senate special committee to study the implications of terminating the 1950 proclamation of national emergency that was being used to prosecute the Vietnam War "to consider problems which might arise as the result of the termination and to consider what administrative or legislative actions might be necessary " Such a panel was initially chartered by S Res  304 as the Special Committee on the Termination of the National Emergency in June 1972, but it did not begin operations before the end of the year  With the convening of the 93 rd Congress in 1973, the special committee was approved again with S Res  9   Upon exploring the subject matter of national emergency powers, however, the mission of the special committee became more burdensome  There was not just one proclamation of national emergency in effect but four such instruments, issued in 1933, 1950, 1970, and 1971  The United States was in a condition of national emergency four times over, and with each proclamation, the whole collection of statutorily delegated emergency powers was activated  Consequently, in 1974, with S Res  242 , the study panel was rechartered as the Special Committee on National Emergencies and Delegated Emergency Powers to reflect its focus upon matters larger than the 1950 emergency proclamation  Its final mandate was provided by S Res  10 in the 94 th Congress, although its termination date was necessarily extended briefly in 1976 by S Res  370   Senators Church and Mathias co-chaired the panel  The Special Committee on National Emergencies and Delegated Emergency Powers produced various studies during its existence  After scrutinizing the U   S   Code and uncodified statutory emergency powers, the panel identified 470 provisions of federal law that delegated extraordinary authority to the executive in time of national emergency  Not all of them required a declaration of national emergency to be operative, but they were, nevertheless, extraordinary grants  The special committee also found that no process existed for automatically terminating the four outstanding national emergency proclamations  Thus, the panel began developing legislation containing a formula for regulating emergency declarations in the future and otherwise adjusting the body of statutorily delegated emergency powers by abolishing some provisions, relegating others to permanent status, and continuing others in a standby capacity  The panel also began preparing a report offering its findings and recommendations regarding the state of national emergency powers in the nation  The special committee, in July 1974, unanimously recommended legislation establishing a procedure for the presidential declaration and congressional regulation of a national emergency  The proposal also modified various statutorily delegated emergency powers  In arriving at this reform measure, the panel consulted with various executive branch agencies regarding the significance of existing emergency statutes, recommendations for legislative action, and views as to the repeal of some provisions of emergency law  This recommended legislation was introduced by Senator Church for himself and others on August 22, 1974, and became S  3957   It was reported from the Senate Committee on Government Operations on September 30 without public hearings or amendment  The bill was subsequently discussed on the Senate floor on October 7, when it was amended and passed  Although a version of the reform legislation had been introduced in the House on September 16, becoming H R  16668 , the Committee on the Judiciary, to which the measure was referred, did not have an opportunity to consider either that bill or the Senate-adopted version due to the press of other business—chiefly the impeachment of President Nixon and the nomination of Nelson Rockefeller to be Vice President of the United States  Thus, the National Emergencies Act failed to be considered on the House floor before the final adjournment of the 93 rd Congress  With the convening of the next Congress, the proposal was introduced in the House on February 27, 1975, becoming H R  3884 , and in the Senate on March 6, becoming S  977   House hearings occurred in March and April before the Subcommittee on Administrative Law and Governmental Relations of the Committee on the Judiciary  The bill was subsequently marked up and, on April 15, was reported in amended form to the full committee on a 4-0 vote  On May 21, the Committee on the Judiciary, on a voice vote, reported the bill with technical amendments  During the course of House debate on September 4, there was agreement to both the committee amendments and a floor amendment providing that national emergencies end automatically one year after their declaration unless the President informs Congress and the public of a continuation  The bill was then passed on a 388-5 yea and nay vote and sent to the Senate, where it was referred to the Committee on Government Operations  The Senate Committee on Government Operations held a hearing on H R  3884 on February 25, 1976, the bill was subsequently reported on August 26 with one substantive and several technical amendments  The following day, the amended bill was passed and returned to the House  On August 31, the House agreed to the Senate amendments, clearing the proposal for President Gerald Ford's signature on September 14  In its final report, issued in May 1976, the special committee concluded "by reemphasizing that emergency laws and procedures in the United States have been neglected for too long, and that Congress must pass the National Emergencies Act to end a potentially dangerous situation " Other issues identified by the special committee as deserving attention in the future, however, did not fare so well  The panel, for example, was hopeful that standing committees of both houses of Congress would review statutory emergency power provisions within their respective jurisdictions with a view to the continued need for, and possible adjustment of, such authority  Actions in this regard were probably not as ambitious as the special committee expected  A title of the Federal Civil Defense Act of 1950 granting the President or Congress power to declare a civil defense emergency in the event of an attack on the United States occurred or was anticipated expired in June 1974 after the House Committee on Rules failed to report a measure continuing the statute  A provision of emergency law was refined in May 1976  Legislation was enacted granting the President the authority to order certain selected members of an armed services reserve component to active duty without a declaration of war or national emergency  Previously, such an activation of military reserve personnel had been limited to a "time of national emergency declared by the President" or "when otherwise authorized by law " Another refinement of emergency law occurred in 1977 when action was completed on the International Emergency Economic Powers Act (IEEPA)  Reform legislation containing this statute modified a provision of the Trading with the Enemy Act of 1917, authorizing the President to regulate the nation's international and domestic finance during periods of declared war or national emergency  The enacted bill limited the President's Trading with the Enemy Act power to regulate the country's finances to times of declared war  In IEEPA, a provision conferred authority on the Chief Executive to exercise controls over international economic transactions in the future during a declared national emergency and established procedures governing the use of this power, including close consultation with Congress when declaring a national emergency to activate IEEPA  Such a declaration would be subject to congressional regulation under the procedures of the National Emergencies Act  Other matters identified in the final report of the special committee for congressional scrutiny included investigation of emergency preparedness efforts conducted by the executive branch, attention to congressional preparations for an emergency and continual review of emergency law, ending open-ended grants of authority to the executive, investigation and institution of stricter controls over delegated powers, and improving the accountability of executive decisionmaking  There is some public record indication that certain of these points, particularly the first and the last, have been addressed in the past two decades by congressional overseers  As enacted, the National Emergencies Act consisted of five titles  The first of these generally returned all standby statutory delegations of emergency power, activated by an outstanding declaration of national emergency, to a dormant state two years after the statute's approval  However, the act did not cancel the 1933, 1950, 1970, and 1971 national emergency proclamations, because the President issued them pursuant to his Article II constitutional authority  Nevertheless, it did render them ineffective by returning to dormancy the statutory authorities they had activated, thereby necessitating a new declaration to activate standby statutory emergency authorities  Title II provided a procedure for future declarations of national emergency by the President and prescribed arrangements for their congressional regulation  The statute established an exclusive means for declaring a national emergency  Emergency declarations were to terminate automatically after one year unless formally continued for another year by the President, but they could be terminated earlier by either the President or Congress  Originally, the prescribed method for congressional termination of a declared national emergency was a concurrent resolution adopted by both houses of Congress  This type of "legislative veto" was effectively invalidated by the Supreme Court in 1983  The National Emergencies Act was amended in 1985 to substitute a joint resolution as the vehicle for rescinding a national emergency declaration  When declaring a national emergency, the President must indicate, according to Title III, the powers and authorities being activated to respond to the exigency at hand  Certain presidential accountability and reporting requirements regarding national emergency declarations were specified in Title IV, and the repeal and continuation of various statutory provisions delegating emergency powers was accomplished in Title V  Since the 1976 enactment of the National Emergencies Act, various national emergencies have been declared pursuant to its provisions  Some were subsequently revoked, while others remain in effect  Table 1 displays the number of national emergencies in effect (some may refer to these as "active") and the number of national emergencies no longer in effect (some may refer to these as "inactive"), by President  Detailed information regarding the 31 national emergencies in effect may be found in Table 2   Similar information regarding the 22 national emergencies no longer in may be found in Table 3   The second column in Table 2 and Table 3 identifies the national emergency declaration, which is either an executive order (E O ) or a presidential proclamation (Proc )  Table 3 includes declared national emergencies that are no longer in effect  The development, exercise, and regulation of emergency powers, from the days of the Continental Congress to the present, reflect at least one highly discernable trend: Those authorities available to the executive in time of national crisis or exigency have, since the time of the Lincoln Administration, come to be increasingly rooted in statutory law  The discretion available to a Civil War President in his exercise of emergency power has been harnessed, to a considerable extent, in the contemporary period  Due to greater reliance upon statutory expression, the range of this authority has come to be more circumscribed, and the options for its use have come to be regulated procedurally through the National Emergencies Act  Since its enactment the National Emergencies Act has not been revisited by congressional overseers  The 1976 report of the Senate Special Committee on National Emergencies suggested that the prospect remains that further improvements and reforms in this policy area might be pursued and perfected  An anomaly in the activation of emergency powers appears to have occurred on September 8, 2005, when President George W  Bush issued a proclamation suspending certain wage requirements of the Davis-Bacon Act in the course of the federal response to the Gulf Coast disaster resulting from Hurricane Katrina  Instead of following the historical pattern of declaring a national emergency to activate the suspension authority, the President set out the following rationale in the proclamation: "I find that the conditions caused by Hurricane Katrina constitute a 'national emergency' within the meaning of section 3147 of title 40, United States Code " A more likely course of action would seemingly have been for the President to declare a national emergency pursuant to the National Emergencies Act and to specify that he was, accordingly, activating the suspension authority  Although the propriety of the President's action in this case might have been ultimately determined in the courts, the proclamation was revoked on November 3, 2005, by a proclamation in which the President cited the National Emergencies Act as authority, in part, for his action 


Report 2:  Lower courts have approved as "factual and uncontroversial" within the meaning of Zauderer a variety of other commercial disclosure requirements, including regulations requiring the disclosure of: country-of-origin information for meat; calorie information at restaurants; the fact that products contain mercury; and textual and graphic warnings about the health risks of tobacco products  By contrast, in a 2015 opinion, the D C  Circuit concluded that a federal regulation requiring firms to disclose whether their products used "conflict minerals" that originated "in the Democratic Republic of the Congo or an adjoining country" could not be characterized as factual and uncontroversial  The court said that "[t]he label '[not] conflict free' is a metaphor that conveys moral responsibility for the Congo war        An issuer, including an issuer who condemns the atrocities of the Congo war in the strongest terms, may disagree with that assessment of its moral responsibility        By compelling an issuer to confess blood on its hands, the statute interferes with that exercise of the freedom of speech under the First Amendment " Similarly, the Seventh Circuit, in a 2006 opinion, held that disclosure requirements in a state law regulating sexually explicit video games were not "factual and uncontroversial" as required for Zauderer to apply  In relevant part, the law required "video game retailers to place a four square-inch label with the numerals '18' on any 'sexually explicit' video game," and to post signs and provide brochures "explaining the video game rating system " The court held first that the sticker "ultimately communicates a subjective and highly controversial message—that the game's content is sexually explicit " Similarly, the panel concluded that "the message" communicated by the signs and brochures was "neither purely factual nor uncontroversial" because it was "intended to communicate that any video games in the store can be properly judged pursuant to the standards described in the       ratings " As mentioned above, some courts have treated "factual" and "uncontroversial" as two distinct requirements  But at times, courts have struggled to define "controversial," standing alone  The D C  Circuit has suggested that controversial must mean that a disclosure "communicates a message that is controversial for some reason other than dispute about simple factual accuracy " One trial court interpreting a decision of the Second Circuit suggested that "it is the nature of the regulation of compelled speech that controls, not the nature of the legislative debate that gave rise to its enactment " That court then noted that other courts had equated controversial messages with disclosures that are "opinion-based " Courts have disagreed about whether a disclosure may be characterized as "controversial" because it is "inflammatory" or "evoke[s] an emotional response " In NIFLA , the Supreme Court struck down the licensed notice after noting that the required disclosures related to "abortion, anything but an 'uncontroversial' topic," although it did not further explain when a topic is "uncontroversial" for purposes of Zauderer  Second, to be eligible for review under Zauderer , a commercial disclosure requirement must be related to the services provided by the speaker  In Zauderer itself, the Court had noted that the disputed disclosure required the attorney to provide information in his advertising "about the terms under which his services will be available " By and large, lower courts, at least prior to NIFLA, had not treated this relationship to the speaker's services as a distinct requirement  The Court in NIFLA , however, said that this was a necessary prerequisite for Zauderer review and held in that case that the notice requirement for licensed clinics at issue was not "relate[d] to the services that licensed clinics provide" because it instead provided information "about state -sponsored services " Judges have disagreed on whether there exists a third requirement for Zauderer review  In Zauderer itself, the Supreme Court noted that the disclosure requirements at issue in that case were intended to "prevent[] deception of customers " Further, when applying Zauderer review to the bankruptcy-related disclosures at issue in Milavetz , the Court stated that the disclosures were "intended to combat the problem of inherently misleading commercial advertisements " Perhaps most notably, in United Foods , the Court explained its decision not to apply Zauderer by noting that there was "no suggestion" that the compelled subsidies at issue in that case were "somehow necessary to make voluntary advertisements nonmisleading for consumers " The Supreme Court's decisions applying Zauderer have thus suggested that one factor in deciding whether to apply this "reasonably related" review is whether the targeted commercial speech is misleading, or whether the state's interest in requiring the disclosure is to prevent "consumer confusion or deception " Nonetheless, the Court has not squarely held that this is a necessary condition for Zauderer review, and several lower courts have rejected this position  The D C  Circuit concluded that Zauderer 's justification characterizing "the speaker's interest in opposing forced disclosure of such information as 'minimal' seems inherently applicable beyond" the state's "interest in remedying deception " The Second Circuit has also held that Zauderer review applies more broadly  In rejecting a litigant's argument that the Supreme Court's decision in United Foods limited Zauderer only to laws intended to prevent consumer deception, the Second Circuit said that United Foods "simply distinguishes Zauderer on the basis that the compelled speech in Zauderer was necessary to prevent deception of consumers; it does not provide that all other disclosure requirements are subject to heightened scrutiny " If a commercial disclosure requirement involves only "purely factual and uncontroversial information" about the goods or services being sold, and is therefore eligible for review under Zauderer , then it will be constitutional so long as the disclosure requirement is "reasonably related" to the government's interest  This reasonableness review is relatively lenient, especially as compared with the standards that would otherwise apply to compelled speech  But, as emphasized in NIFLA , even under Zauderer , "unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech " Lower courts had previously come to different conclusions regarding whether "unjustified or unduly burdensome" presented an additional inquiry, to be conducted separately from the reasonableness inquiry otherwise prescribed by Zauderer , or whether instead this inquiry was subsumed by the "reasonably related" inquiry  NIFLA did not entirely resolve this issue, although it did frame its analysis using the "unjustified or unduly burdensome" language rather than the language of rational basis review  In Zauderer , the Supreme Court upheld the contingent fee disclosure after concluding that the requirement was "reasonably related to the State's interest in preventing deception of consumers " But as noted above, lower courts have largely concluded that Zauderer 's reasonableness review may govern the analysis even when the government asserts an interest other than preventing consumer deception  The D C  Circuit has, so far, largely declined to articulate a clear standard for "what type of interest might suffice " That court did conclude in one case that where the government's interest was "substantial under Central Hudson 's standard," that would qualify as a sufficient interest under Zauderer   Perhaps taking a different approach, in a case upholding a disclosure requirement under Zauderer , the Second Circuit described the state's interest as "legitimate and significant " Other than "the interest in correcting misleading or confusing commercial speech," the federal courts of appeals have upheld commercial disclosure requirements where the government asserted interests in food safety, preventing obesity, "protecting human health and the environment from mercury poisoning," and in protecting health benefit providers "from questionable       business practices " By contrast, the Second Circuit held in International Dairy Foods Association v  Amestoy that "consumer curiosity alone is not a strong enough state interest to sustain the compulsion of even an accurate, factual statement " In NIFLA , the Supreme Court indicated that under Zauderer , the government must assert an interest that is "more than 'purely hypothetical '" As discussed above, the State of California's justification for the notice requiring unlicensed clinics to disclose that they were unlicensed was to "ensur[e] that pregnant women in California know when they are getting medical care from licensed professionals " The Court concluded that the state had "point[ed] to nothing suggesting that pregnant women do not already know that the covered facilities are staffed by unlicensed medical professionals " NIFLA 's requirement that the government provide evidence supporting an asserted interest differs from the Court's approach in Zauderer itself and in Milavetz   In both Zauderer and Milavetz , the Court rejected arguments that the government had failed to present sufficient evidence to support its interest in the disclosure requirement, concluding that in both of those cases, "the possibility of deception" in the regulated advertisements was "self-evident " Although the standard is not entirely clear, it is possible that in future cases the Court could conclude again that a particular advertisement is so obviously deceptive that the government does not need to submit significant evidence proving that the advertisements are misleading  If the government has asserted a sufficient interest, then under Zauderer , it needs to show only that the disputed disclosure requirement is "reasonably related" to that interest  Describing the Supreme Court's decision in Zauderer , the D C  Circuit has said that the "evidentiary parsing" required by more rigorous First Amendment tests "is hardly necessary when the government uses a disclosure mandate to achieve a goal of informing consumers about a particular product trait, assuming of course that the reason for informing consumers qualifies as an adequate interest " That court further elaborated that "[t]he self-evident tendency of a disclosure mandate to assure that recipients get the mandated information may in part explain why, where that is the goal, many such mandates have persisted for decades without anyone questioning their constitutionality " Similarly, the Second Circuit has observed in one case that "while the First Amendment precludes the government from restricting commercial speech without showing that 'the harms it recites are real and that its restriction will in fact alleviate them to a material degree,'" the First Amendment "does not demand 'evidence or empirical data' to demonstrate the rationality of mandated disclosures in the commercial context " Notwithstanding the suggestion that little evidence is required to show that a disclosure requirement is reasonably related to an appropriate government interest, lower courts have often relied on the government's evidence supporting the disputed requirement when they uphold the provision  This showing may be easiest where the government asserts an interest in preventing misleading speech, given "the self-evident tendency of a disclosure mandate to assure that recipients get the mandated information " Additionally, courts have sometimes held that commercial disclosure requirements fail even this lenient test for rationality, particularly where the government has asserted an interest other than preventing consumer confusion  For example, in National Association of Manufacturers v  SEC , the D C  Circuit held that a provision requiring companies to disclose whether their products were "conflict free" violated the First Amendment  In defending this rule, the government asserted an interest in "ameliorat[ing] the humanitarian crisis in the [Democratic Republic of the Congo (DRC)] " In the court's view, however, the government had failed to demonstrate that its measure would achieve this interest  The D C  Circuit observed that the government had "offered little substance beyond" statements by political officials to support "the effectiveness of the measure " The court assumed that the government's theory "must be that the forced disclosure regime will [lead to boycotts that] decrease the revenue of armed groups in the DRC and their loss of revenue will end or at least diminish the humanitarian crisis there " But in the view of the court, this theory could not justify the regulation, as the idea was "entirely unproven and rest[ed] on pure speculation " To take another example, the Third Circuit struck down a commercial disclosure requirement concerning attorney advertising in Dwyer v  Cappell   In that case, an attorney challenged a state regulation that prohibited attorneys from using quotations from judicial opinions in their advertising unless they presented "the full text" of those opinions  The state argued that such quotations were "inherently misleading because laypersons       would understand them to be judicial endorsements " The court, however, said that even assuming "that excerpts of judicial opinions are potentially misleading to some persons," the state had failed "to explain how [an attorney's] providing a complete judicial opinion somehow dispels this assumed threat of deception " The court reasoned that "providing a full judicial opinion does not reveal to a potential client that an excerpt of the same opinion is not an endorsement " Additionally, the court held that the disputed requirement was "unduly burdensome," as it "effectively rules out the possibility that [an attorney] can advertise with even an accurately quoted excerpt of a judicial statement about his abilities " And in the view of the Third Circuit, "that type of restriction—an outright ban on advertising with judicial excerpts—would properly be analyzed under the heightened Central Hudson standard of scrutiny " As Dwyer suggests, courts may strike down disclosure requirements under Zauderer if the requirement is "unduly burdensome " In NIFLA , the Supreme Court held that the unlicensed notice was likely unconstitutional because it "unduly burden[ed] protected speech," noting that it applied to all advertisements for these licensed facilities, regardless of their content  In particular, the majority opinion highlighted one hypothetical discussed at oral argument, noting that "a billboard for an unlicensed facility that says 'Choose Life' would have to surround that two-word statement with a 29-word statement from the government, in as many as 13 different languages " In this instance, the Court said, the notice would "drown[] out the facility's own message," and therefore be unduly burdensome  If a commercial disclosure requirement is not a factual and uncontroversial disclosure related to the speaker's goods or services under Zauderer , courts will likely apply a heightened standard of review  Under prevailing Supreme Court precedent, if a provision does not qualify for Zauderer 's reasonableness review, a court may review the challenged regulation under Central Hudson   As discussed above, Central Hudson established the general standard of review for government restrictions on commercial speech  The Supreme Court described "a four-part analysis:" At the outset, we must determine whether the expression is protected by the First Amendment  For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading  Next, we ask whether the asserted governmental interest is substantial  If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest  The Court has described the Central Hudson test as "intermediate" scrutiny  If a disclosure requirement affects commercial speech but does not qualify for Zauderer review, courts have generally held that Central Hudson 's intermediate scrutiny applies  However, courts have sometimes suggested that some higher standard of review, more stringent than Central Hudson 's intermediate scrutiny, should apply to commercial disclosure requirements that do not qualify for review under Zauderer   Some lower court judges have concluded that because such disclosures compel particular speech and are by definition not content-neutral, they should be evaluated under strict scrutiny  In contrast to Central Hudson review, which requires the government to show that a law is "not more extensive than is necessary to serve" a "substantial" interest, strict scrutiny "requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest " The Supreme Court has suggested—but not squarely held—that at least some types of commercial disclosure requirements might be subject to some form of scrutiny more strict than Central Hudson   In NIFLA , the Supreme Court considered the constitutionality of state provisions requiring crisis pregnancy centers to make certain disclosures to clients and in their advertising  The Court suggested that the provision requiring licensed facilities to disseminate notices about state-provided services might be subject to strict scrutiny as a content-based regulation of speech, but concluded that it did not need to resolve that question because the notice could not "survive even intermediate scrutiny " Significantly, however, the NIFLA Court never described the licensed notice as involving commercial speech  In the decision below, the Ninth Circuit had held that the notice should not be subject to strict scrutiny because it regulated "professional speech " That court, like other federal courts of appeals, had recognized "speech that occurs between professionals and their clients in the context of their professional relationship" "as a separate category of speech that is subject to different rules " The Ninth Circuit had concluded that speech that was part of the practice of a profession could be regulated by the state, subject only to intermediate scrutiny  The Court rejected this idea, saying that the First Amendment does not encompass a tradition of lower scrutiny "for a category called 'professional speech '" Ultimately, the Court said that it saw no "persuasive reason" to treat "professional speech as a unique category that is exempt from ordinary First Amendment principles " To the extent that "professional speech" could be seen to overlap with commercial speech, this sentence could be read to suggest that commercial speech should also be subject to "ordinary First Amendment principles " This suggestion would seem to conflict with prior cases saying that commercial speech occupies a "subordinate position in the scale of First Amendment values " Although the NIFLA Court implicitly suggested that disclosure requirements for professionals might constitute commercial speech by evaluating the FACT Act's requirements under Zauderer and Central Hudson , it never expressly clarified whether "professional speech" overlaps with commercial speech  Because the FACT Act's requirements applied outside of the advertising context, it may be open to some debate whether these licensed notices involved commercial speech  The unlicensed notice challenged in NIFLA was required to be included in advertising, and advertisements are "classic examples of commercial speech " But the unlicensed notice was also required to be posted on-site, and the state required licensed facilities to post disclosures on-site or to otherwise distribute the notice to clients directly  Further, in a similar context, at least one federal court of appeals concluded that a Baltimore ordinance requiring certain pregnancy centers to make specified disclosures regulated noncommercial speech  That court said the pregnancy centers were not motivated by economic interest or proposing a commercial transaction, but were instead "provid[ing] free information about pregnancy, abortion, and birth control as informed by a religious and political belief " If the licensed disclosures in NIFLA did not regulate commercial speech, then it would be unsurprising that the Court would consider applying strict scrutiny rather than Central Hudson   Others, however, have pointed out that crisis pregnancy centers, even if they do not charge fees, operate "in a marketplace where other providers generally charge fees," and argued that these centers "are engaged in commercial activity by providing physical and mental health services to pregnant women " And more generally, some have pointed out the similarities between "professional" and commercial speech  The fact that the NIFLA Court did not directly address the relationship between professional and commercial speech may suggest that heightened scrutiny may be necessary with respect to some commercial disclosure requirements  Specifically, the Court did not cite the commercial speech doctrine as "a persuasive reason for treating professional speech as a unique category that is exempt from ordinary First Amendment principles " At least one commentator has argued that the Court's failure to mention Central Hudson —"not even to dismiss it as       another inapposite exception to Reed 's general rule [of strict scrutiny]"—may suggest that the Court is seeking to limit Central Hudson 's holding that commercial speech may be more freely regulated than other speech under the First Amendment  Although NIFLA may not have expressly altered the framework used to evaluate commercial disclosure requirements, it may nonetheless signal that the Supreme Court will view them with more skepticism in the future  The majority opinion, authored by Justice Thomas, emphasized that "[t]he dangers associated with content-based regulations of speech are also present in the context of professional speech " Even if "professional speech" is not coterminous with "commercial speech," this statement does seem to suggest that the Court believes content neutrality principles are relevant in the commercial sphere  In dissent, Justice Breyer, viewing the majority opinion as adopting such a view, argued that the majority's approach, "if taken literally, could radically change prior law, perhaps placing much securities law or consumer protection law at constitutional risk " He pointed out that "[v]irtually every disclosure law could be considered 'content based,' for virtually every disclosure law requires individuals 'to speak a particular message '" In response to Justice Breyer, the NIFLA majority stated that it did not "question the legality of health and safety warnings long considered permissible, or purely factual and uncontroversial disclosures about commercial products " This view echoed the Court's prior statement that "[p]urely commercial speech is more susceptible to compelled disclosure requirements " Following the Court's 2010 decision in Reed , in which the Court articulated a more "precise test to determine whether speech regulations are content based," many lower courts had rejected the idea that content-based requirements affecting only commercial speech should be subject to strict scrutiny, even if they otherwise discriminated based on content under Reed   But because NIFLA appeared to suggest that content neutrality is relevant in the commercial sphere, it seems reasonable to think that lower courts may now be more likely to conclude that strict scrutiny could apply to content-based commercial disclosure requirements  This would be consistent with what some commentators have described as the Court's increasingly heightened scrutiny of restrictions on commercial speech  For now, though, Central Hudson generally continues to govern the analysis of government actions affecting lawful, non-misleading commercial speech, including commercial disclosure requirements that do not qualify for Zauderer review  As discussed, Central Hudson requires that the government prove that its interest is "substantial," and that the regulation "directly advances" that interest and is "not more extensive than is necessary to serve that interest " Government regulations are more likely to fail this more rigorous standard than the Zauderer reasonableness standard, often because a court believes there is some less restrictive means available for the government to achieve its goals  Courts will require more "evidence of a measure's effectiveness" under Central Hudson , as compared to Zauderer   However, Central Hudson is more forgiving than strict scrutiny, and courts do uphold government actions infringing on commercial speech under Central Hudson   For example, in Spirit Airlines v  Department of Transportation , the D C  Circuit concluded that a federal regulation governing the way that airlines must display flight prices "satisfie[d]       the Central Hudson test " In the court's view, "[t]he government interest—ensuring the accuracy of commercial information in the marketplace—[was] clearly and directly advanced by a regulation requiring that the total, final price be the most prominent" price displayed  And the regulation was "reasonably tailored to accomplish that end" because the rule "simply regulate[d] the manner of disclosure " Government actions are unlikely to be upheld if a court applies strict scrutiny  Nonetheless, some scholars have argued that many disclosure requirements might survive strict scrutiny, and the Supreme Court has, in rare instances, said that the government may "directly regulate speech to address extraordinary problems, where its regulations are appropriately tailored to resolve those problems without imposing an unnecessarily great restriction on speech " It is possible that a court could hold that the government has a compelling interest in protecting consumers, for example, and that particular disclosures are narrowly tailored to meet that interest  The Supreme Court has long emphasized that the government can regulate commercial activity "deemed harmful to the public " But a court would likely require more proof from the government under strict scrutiny and likely would not simply accept the government's allegations as "self-evident" under such review  Congress has enacted a wide variety of disclosure requirements, many of which arguably compel commercial speech  For example, the Securities and Exchange Act of 1934 sets out disclosure requirements for registering securities  Federal law, among a host of other food labeling requirements, requires "bioengineered food" to bear a label disclosing that the food is bioengineered  Direct-to-consumer advertisements for prescription drugs must contain a series of disclosures, including the drug's name and side effects  Certain appliances must contain labels disclosing information about their energy efficiency  Bills in the 115 th and 116 th Congresses have proposed additional disclosure requirements, including a bill that would require large online platforms to disclose any studies conducted on users for the purposes of promoting engagement, and a bill that would require public companies to disclose climate-related risks  Recent Supreme Court precedent suggests that the Court is more closely reviewing commercial disclosure requirements, perhaps moving away from a more deferential treatment of such provisions  In NIFLA , the Court held that a disclosure requirement was likely unconstitutional under Zauderer because the government had not presented sufficient evidence to justify the measure —even though in other cases, the Court had rejected similar challenges to commercial disclosure requirements, saying that the government did not need to present more evidence because the harm it sought to remedy was "self-evident " Further, the Court has recently suggested that if a law regulating commercial speech discriminates on the basis of content—as all disclosure requirements seemingly do —then this content discrimination might subject the law to heightened scrutiny  If the Court further embraces this view, it could be a marked departure from its opinions holding that commercial speech could be regulated on the basis of its content, so long as the government's justification for the content discrimination were sufficiently related to its legitimate interests in regulating the speech  In concurring and dissenting opinions that have been joined by other Justices, Justice Breyer has argued that insofar as the Court's recent decisions suggest that commercial disclosure requirements should be subject to heightened scrutiny, they are inconsistent with prior case law and are not a proper application of the First Amendment  The Supreme Court said in NIFLA that it was "not question[ing] the legality of health and safety warnings long considered permissible, or purely factual and uncontroversial disclosures about commercial products " And lower courts have frequently upheld commercial disclosure requirements, perhaps suggesting that disclosures of the kind cited by Justice Breyer are not in danger of wholesale invalidation under the First Amendment  However, the majority opinion in NIFLA did not clarify what kind of disclosures it would consider permissible, and its opinion made clear that disclosure requirements should be scrutinized in light of the speakers they cover and the burdens they pose  Moreover, although the NIFLA Court said that it was not questioning these disclosures' "legality," it left open the possibility that these disclosure should nonetheless be subject to heightened scrutiny  This statement may mean only that the Court believes that many commercial disclosure requirements would meet a higher standard of scrutiny  At least one federal appellate court seems to have taken NIFLA as a signal that lower courts should more closely scrutinize commercial disclosure requirements  In American Beverage Association v  City & County of San Francisco , the Ninth Circuit, sitting en banc , relied on NIFLA to reverse a prior decision that had upheld an ordinance requiring "health warnings on advertisements for certain sugar-sweetened beverages " While a panel of judges had previously concluded that the disclosure requirement was constitutional under Zauderer , the full Ninth Circuit, reviewing that decision, said: " NIFLA requires us to reexamine how we approach a First Amendment claim concerning compelled speech " Namely, the court held that, in light of NIFLA , the health warnings were likely unjustified and unduly burdensome under Zauderer , noting that the regulation required the warnings to "occupy at least 20% of those products' labels or advertisements"—but that the record showed that "a smaller warning—half the size—would accomplish [the government's] stated goals " As such, the court held that the warnings violated the First Amendment "by chilling protected speech " Accordingly, when Congress and federal agencies consider adopting new commercial disclosure requirements, or reauthorizing old ones, it may be wise to develop a record with more evidence demonstrating a need for the regulation  Under any level of scrutiny, courts will examine the government's asserted purpose for the legislation, as well as how closely tailored the disclosure requirement is to achieve that purpose  Under Zauderer , particularly in light of NIFLA , courts may ask for evidence to support the government's claim that the regulated speech is misleading or that the government has some other interest in regulating that speech, and will likely scrutinize the disclosure requirement to make sure it is not unduly burdensome  Under intermediate scrutiny or strict scrutiny, a court may also ask whether the government considered alternative policies that would be less restrictive of speech, examining more closely the government's justifications for choosing a disclosure requirement 

ground_truth: The President of the United States has available certain powers that may be exercised in the event that the nation is threatened by crisis, exigency, or emergency circumstances (other than natural disasters, war, or near-war situations). Such powers may be stated explicitly or implied by the Constitution, assumed by the Chief Executive to be permissible constitutionally, or inferred from or specified by statute. Through legislation, Congress has made a great many delegations of authority in this regard over the past 230 years. There are, however, limits and restraints upon the President in his exercise of emergency powers. With the exception of the habeas corpus clause, the Constitution makes no allowance for the suspension of any of its provisions during a national emergency. Disputes over the constitutionality or legality of the exercise of emergency powers are judicially reviewable. Both the judiciary and Congress, as co-equal branches, can restrain the executive regarding emergency powers. So can public opinion. Since 1976, the President has been subject to certain procedural formalities in utilizing some statutorily delegated emergency authority. The National Emergencies Act (50 U.S.C. §§1601-1651) eliminated or modified some statutory grants of emergency authority, required the President to formally declare the existence of a national emergency and to specify what statutory authority activated by the declaration would be used, and provided Congress a means to countermand the President's declaration and the activated authority being sought. The development of this regulatory statute and subsequent declarations of national emergency are reviewed in this report.

prompt_front: You are given two reports by the government agency.



Question: Write a one-page summary of the report 2.



Report 2: Title IX of the Education Amendments of 1972 (Title IX) provides an avenue of legal relief for victims of sexual abuse and harassment committed by professors, teachers, coaches, and others at educational institutions  The statute prohibits discrimination "on the basis of sex" of any person in an educational program or activity receiving federal funding  Though Title IX makes no explicit reference to sexual abuse or harassment, the Supreme Court has held that a school district can violate the statute, and be held liable for damages, based on a deliberately indifferent response to a teacher's sexual abuse or harassment of a student  The Court has also held that a school board may be liable under Title IX for a deliberately indifferent response to student-on-student sexual harassment  Meanwhile, federal agencies that administratively enforce the statute, such as the Department of Education (ED), have also determined that educational institutions can be held responsible for instances of sexual harassment under Title IX in certain circumstances  Title IX is thus primarily enforced in two ways: (1) through private rights of action directly against schools by or on behalf of students subject to such harassment in certain circumstances; and (2) by federal agencies that provide funding to educational programs  With respect to the latter enforcement prong, like several other federal civil rights statutes, Title IX makes compliance with its antidiscrimination mandate a condition for receiving federal funding in any education program or activity  Title IX applies to federal-funded schools at all levels of education  For instance, all public school districts receive some federal financial assistance, as do most institutions of higher education through participation in federal student aid programs  Notably, when any part of a school district or institution of higher education receives federal funds, all of the recipient's operations are covered by Title IX  The text of Title IX does not expressly mention sexual abuse or harassment, while current regulations implementing the statute also do not explicitly address sexual harassment (although the regulations do require schools to designate at least one employee to function as a Title IX Coordinator)  In each of the last several presidential administrations, however, the Department of Education (ED) has issued guidance documents that instruct schools regarding their responsibilities under Title IX when addressing allegations of sexual harassment  In response, educational institutions have developed procedures and practices to investigate and respond to allegations of sexual harassment and assault  And ED recently issued another notice of proposed rulemaking, after having revoked some of its prior guidance to schools in 2017  As discussed in this report, if adopted, the regulations would significantly change educational institutions' responsibilities for responding to sexual harassment allegations  To place the proposed Title IX regulations in context, this report provides background on the legal landscape that informs the proposal  First, the report examines how federal courts have understood Title IX's requirements in the context of private rights of actions brought by students directly against educational institutions seeking damages for sexual abuse or harassment  The report continues by examining how federal agencies have enforced Title IX, with particular focus on ED's guidance documents that direct schools on how to respond to sexual harassment and assault allegations  The report then considers various constitutional challenges brought by students against public universities, which claim that some universities' responses to allegations of sexual harassment have violated the due process rights of the accused  With this backdrop set, the report examines ED's proposed regulations with an emphasis on how they would alter the responsibilities of schools in complying with Title IX  Title IX of the Education Amendments of 1972 states that "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance," subject to certain exemptions  In other words, recipients of federal funding, which administer an educational program or activity, are prohibited from discriminating on the basis of sex  The statute, however, does not expressly provide for a private right of action by which victims of sex discrimination may recover for a Title IX violation  Nor does the statute expressly prohibit sexual harassment, abuse, or molestation as forms of unlawful sex discrimination, or otherwise define unlawful sexual abuse or harassment  Title IX also does not delineate the circumstances in which a school or educational program may be liable for such conduct  Given the absence of statutory text "to shed light on Congress' intent," federal courts have played a primary, if not exclusive, role in establishing the remedial scheme by which victims of sexual harassment or abuse may seek relief under Title IX through a private right of action  The Supreme Court first interpreted Title IX to provide for a judicially implied private right of action against a federal-funded educational institution for sexual harassment, and later, an implied damages remedy in such actions  Since then, and in the absence of legislative amendments to Title IX on those issues, the Court has also created the legal standard for establishing liability under Title IX for sexual abuse or harassment committed by a teacher, and other students  The Court, and numerous federal courts of appeals, have described this judicially created liability standard—which draws upon the "deliberate indifference" standard as applied under 42 U S C  § 1983 —as a "high bar for plaintiffs to recover under Title IX " Critically, in a Title IX private right of action for damages, an educational institution (or other federally funded program or activity) is not strictly liable for a principal's or teacher's sexual harassment or abuse of a student  In other words, the fact that sexual harassment or abuse occurred and was committed by these individuals is not the basis for a funding recipient's liability under the Supreme Court's remedial scheme  Rather, Title IX liability turns on the recipient's response to its actual knowledge of that conduct  A recipient will be liable only when its response was so deficient as to amount to "deliberate indifference" to the alleged harassment or abuse  The private right of action currently available under Title IX is one of judicial implication—that is, the Court has interpreted the statute to imply such a right, in the absence of express statutory language providing for it  A private right of action provides a personal legal remedy for victims of sex discrimination in the form of specific relief or damages  In contrast, and as discussed in a later section, administrative enforcement of the statute makes its general focus the institutional policies and practices of the recipient educational institution  Two Supreme Court decisions, together, set out the requirements for establishing an educational funding recipient's liability under Title IX for damages for sexual abuse or harassment: Gebser v  Lago Vista Independent School District and Davis N ext Friend LaShonda D  v  Monroe County Board of Education   The Court's liability standard premises an institution's Title IX liability for sexual harassment or abuse based on the institution's "deliberate indifference" in responding to knowledge of that conduct  Thus—and critical to understanding a Title IX private right of action for damages—an educational institution (or other federally funded program or activity) is not strictly liable for a principal's or teacher's sexual harassment or abuse of a student  Indeed, the Supreme Court in Gebser expressly rejected such arguments urging it to apply agency principles to Title IX such that a school would be vicariously liable for such harassment  Instead, liability attaches only if a plaintiff establishes that the funding recipient's response to its "actual" knowledge of the discrimination was deliberately indifferent  Put another way, under the Court's remedial scheme, liability under Title IX is based on the funding recipient's " own failure to act" adequately in response to known misconduct, not the misconduct itself  Thus, an institution will not be liable absent a showing of deliberate indifference, regardless of whether the conduct committed by a principal or teacher could be characterized as egregious  In creating this standard in Gebser , the Court had attempted to "'infer how the [1972] Congress would have addressed the issue had the       action been included as an express provision in the' statute " That task, the Court observed, "inherently entail[ed] a degree of speculation " To inform its analysis, the Court relied significantly on the statute's administrative enforcement provision because, in its view, the provision "contain[ed] important clues" from which to infer legislative intent regarding Title IX liability  The Court observed that, pursuant to that provision, agencies that disburse federal funds may suspend or cut funds to a funding recipient for violating Title IX, but only after they "ha[ve] advised the appropriate person or persons of the failure to comply with the requirement and ha[ve] determined that compliance cannot be secured by voluntary means " Because the statute's administrative procedure "require[s] notice to the recipient and an opportunity to come into voluntary compliance," the Court reasoned that it too would similarly require "actual notice" to an "appropriate person" to establish liability for damages in a private right of action under Title IX  The Court also concluded that a recipient would be liable under Title IX only where a school official responds to that "actual" notice so deficiently that its response amounts to "deliberate indifference " In so holding, the Court again looked to Title IX's administrative enforcement scheme and observed that it "presupposes that an official who is advised of a Title IX violation refuses to take action to bring the recipient into compliance " The Court found "a rough parallel in the standard of deliberate indifference," from case law arising under 42 U S C  § 1983 addressing claims "alleging that a municipality's actions in failing to prevent a deprivation of federal rights" caused a violation  The Court thus held that "[u]ntil Congress speaks directly on the subject       we will not hold a school district liable in damages under Title IX for a teacher's sexual harassment of a student absent actual notice and deliberate indifference" —a conclusion that elicited a strong dissent  Deliberate indifference is a "high standard," as described by the Supreme Court in Davis , and must "at a minimum, 'cause [students] to undergo' harassment or 'make them liable or vulnerable' to it " Notably, the "deliberate indifference" standard does not require funding recipients to "remedy" the harassment  Rather, under Davis , a recipient's response to harassment will amount to deliberate indifference only if it is " clearly unreasonable in light of the known circumstances " Because this standard is not "a mere 'reasonableness' standard," a plaintiff must show more than the unreasonableness of a funding recipient's response to sexual abuse or harassment  The plaintiff must show that the recipient was clearly unreasonable in its response  Accordingly, a funding recipient is not liable under Title IX if it responds to sexual abuse or harassment "in a manner that is not clearly unreasonable " In addition to the requisite showing of "deliberate indifference," the Court's standard also requires a plaintiff to establish other threshold showings to prevail in a Title IX suit for damages—both before reaching the question of "deliberate indifference" and after establishing "deliberate indifference" on the part of the school or entity  Before reaching the issue of whether a funding recipient acted with "deliberate indifference," Gebser requires that a plaintiff establish that "an appropriate person" at the funding recipient had "actual knowledge of discrimination " Failure to show either "actual" notice or that such notice was provided to "an appropriate person" of the funding recipient may constitute the sole basis for a court's dismissal of a Title IX claim seeking damages for sexual harassment or abuse  An "appropriate person," under Gebser , is "an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf " As discussed later in this report, what constitutes "actual" notice, and who may constitute an "appropriate person," have caused substantive splits among the circuits  Even where "deliberate indifference" is established, the Supreme Court's liability standard further requires a plaintiff alleging student-to-student or peer harassment to make several additional showings: (1) that a funding recipient exercised "substantial control" over the harasser and the context in which the harassment occurred; (2) that the harassment itself was "severe, pervasive, and objectively offensive"; and (3) the denial of educational access resulting from the harassment  With respect to "substantial control," Davis limits a school's liability for damages to circumstances in which the funding recipient exercised "substantial control" over the harasser and in which the harassment took place in a context subject to the recipient's control  If "the harasser is under the school's disciplinary authority," a recipient of federal funding may be liable for its deliberate indifference to the harassment, as the Court in Davis particularly emphasized the recipient's authority to take "remedial action" against the harassment  As for "substantial control" over the environment, "the harassment must take place in a context subject to the school district's control " As to the nature of the sexual harassment itself, Davis requires that the plaintiff show that the conduct "is so severe, pervasive, and objectively offensive, and [] so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities " Whether the conduct rises to this level depends, as the Court stated in Davis , "on a constellation of surrounding circumstances, expectations, and relationships," "including, but not limited to, the ages of the harasser and the victim and the number of individuals involved " Finally, for harassment to have sufficiently affected the victim's education, the Court in Davis made two additional observations  On the one hand, the Court noted that evidence of a decline in the victim's grades—as was alleged there—"provides necessary evidence of a potential link between her education" and the alleged harassment  Yet, the Court also concluded that harassment is actionable under Title IX only when it is "serious enough to have the systemic effect of denying the victim equal access to an educational program or activity " Without defining what might constitute a "systemic effect," the Court offered one example of harassment that does not have such effect: "a single instance" of harassment, even when "sufficiently severe " The Supreme Court's Gebser and Davis decisions establish that a school or other educational program that receives federal funding will be liable under Title IX for damages for the sexual abuse or harassment of a student only if it acted with "deliberate indifference" in its response to known discrimination  Deliberate indifference, the Fifth Circuit has recently observed, "'is an extremely high standard to meet '" Applying this and other components of the Supreme Court's Title IX liability standard, lower federal courts have varied in their formulations of the evidence required to prove a Title IX claim  Some courts, for example, have interpreted Gebser and Davis to adopt a "hostile environment" analysis of Title IX claims alleging teacher-to-student harassment, in light of precedent analyzing harassment claims in the workplace context under Title VII of the Civil Rights Act  Meanwhile, other federal courts have focused their teacher-to-student analysis on whether a plaintiff has established the following elements: "actual" notice of discrimination; by an "appropriate person" authorized to take corrective measures; and "deliberate indifference" by the funding recipient in response to known discrimination  Where a Title IX claim alleges sexual harassment or assault committed by a student against another student , courts have additionally required the plaintiff to establish that: the harassment was "so severe, pervasive, and objectively offensive"; the "victim-students [were] effectively denied equal access to an institution's resources and opportunities"; and the recipient exercised "substantial control" over the harasser and the context in which the harassment occurred  As discussed in further detail below, federal courts of appeals vary—and at times directly conflict—regarding the evidence sufficient to satisfy these elements  Failure to satisfy any one of the elements may be the sole basis for dismissal of a Title IX claim  Under Gebser , a plaintiff must show that the funding recipient had "actual" notice of the discrimination; therefore, it is not enough to present evidence that a funding recipient reasonably s hould have known about the alleged sexual misconduct  Under the standard, then, what type of allegations reported to a school give rise to "actual" notice? Is it enough, for example, if a funding recipient has actual knowledge of a " substantial risk of abuse"? Does it require knowledge of specific allegations of harassment or abuse or—perhaps most narrowly—require knowledge of "severe, pervasive, and objectively offensive" conduct? Meanwhile, if a school is notified of a perpetrator's previous acts of sexual harassment or abuse, may that constitute actual notice of that individual's conduct as to others ? Federal courts differ on these questions of actual notice, with some courts further differentiating between evidence that establishes actual notice of a teacher's sexual abuse versus actual notice of sexual violence or harassment committed by a student  As reflected below, which standard a court applies to evaluate "actual notice" is determinative—the claim may either proceed to the next phase of the analysis or be foreclosed altogether  In Doe v  School Board of Broward County , the Eleventh Circuit addressed the question of whether complaints of two separate students about the same teacher were "sufficient in substance to alert [the principal] to the possibility" of that teacher's sexual assault of a third student  The court held in the affirmative, emphasizing the similarity between the two preceding reports, which alleged multiple occasions of the teacher's propositions for sex and dates, sexual touching, and sexual comments about their bodies  These reports, the court held, raised a triable issue that the principal had actual notice "of a pattern of harassment " And where the analysis of "actual notice" looks to knowledge of the risk of sexual abuse or harassment, the court further observed, "lesser harassment may [] provide actual notice of sexually violent conduct " In Bay n ard v  Malone , however, the Fourth Circuit held that the school principal had no "actual" notice that a sixth grade teacher was sexually abusing a student in his class, despite receiving multiple prior reports that he molested children  There, the evidence reflected that before the plaintiff started sixth grade at the school, the principal had met with one of this teacher's former students, who reported that he had been sexually molested by the teacher while in the sixth grade, warned that the teacher was a pedophile, and that the principal should watch for certain behaviors  In addition, another teacher at the school told the principal about allegations that this teacher sexually molested children  Separately, the school librarian reported to the principal that she had walked in on the teacher with the plaintiff sitting in his lap, with his arm around the student, and their faces very close together, and that when the teacher saw her, he jumped up and the plaintiff fell to the floor  In relaying the incident, the librarian told the principal the behavior had been "inappropriate " Though the court noted that the principal "certainly should have been aware of the potential for abuse," it held that there was "no evidence in the record to support a conclusion that [the principal] was in fact aware that a student was being abused " The court dismissed the Title IX claim on the basis that no appropriate person had actual notice of the abuse of the plaintiff student  As the above cases reflect, in the absence of a clear definition—either in the statute or from the Supreme Court—courts vary with respect to the nature, specificity, and frequency of allegations sufficient to constitute "actual" notice for the purpose of satisfying the first prong of the analysis for Title IX liability for sexual abuse or harassment  The Supreme Court's liability standard for Title IX not only requires actual notice, but also that this notice be made to "an appropriate person"—that is, "an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf " Generally, federal appellate case law reflects that rather than treating an individual's title as dispositive, courts engage in fact-specific determinations that appear to focus principally on whether an individual had the ability to halt or address the misconduct or whether the individual occupied a position high enough within the hierarchy of the funding recipient to be fairly said to act in a representative capacity for the recipient  Because the Court's opinions in Gebser and Davis do not clearly delineate which individuals may constitute "appropriate person[s]," federal courts have reached varying—and at times conflicting—determinations  In the elementary or secondary school context, for example, courts vary as to which individuals— a principal, teacher, or guidance counselor —have the requisite "authority to address the alleged discrimination" and "institute" corrective action to constitute "an appropriate person " Some federal courts of appeals have held that a public school principal may—but not always—constitute "an appropriate person " In Warren ex rel   Good v  Reading School District , the Third Circuit held, in a Title IX case alleging sexual abuse by a fourth grade teacher, that the school principal was an "appropriate person" in light of her authority to investigate a teacher's misconduct, which in turn implied her authority to "initiate" corrective measures such as reporting her findings to the school board  The Fourth Circuit, however, reached the opposite conclusion in Baynard v  Malone , holding that the principal—despite being responsible for supervising and evaluating teachers—was not an "appropriate person " The court emphasized that the principal could not "be considered the functional equivalent of the school district" and lacked the authority to "hire, fire, transfer, or suspend teachers " Meanwhile, at least one federal court of appeals has held that a principal who engages directly in sexual abuse or harassment may not constitute an "appropriate person " In Salazar v  South San Antonio Independent School District , the Fifth Circuit interpreted Gebser to hold that where a school official sexually abuses a student, he or she cannot be considered an "appropriate person," even if he would otherwise constitute an "appropriate person " That case involved allegations that a vice principal, who later became principal, sexually abused a student from his third grade to seventh grade year  Though "uncontroverted testimony at trial" established that the school official had corrective authority to address sexual harassment during the time he molested the plaintiff, the Fifth Circuit reasoned that it was "highly unlikely" that he would take corrective measures or report his own behavior so as to provide actual notice to the funding recipient  The court further rejected the argument that the principal's abuse should be treated as an official action of the school district for Title IX liability purposes, given the Supreme Court's rejection of agency principles to Title IX  The Fifth Circuit concluded that the "goals and purpose" of Title IX "would not be accomplished or effectuated by permitting damage awards" in such circumstances  In the higher education context, federal courts of appeals have engaged in similarly fact-specific analyses to determine whether a university employee—for example, a college dean, university counsel, or athletics director —constitutes an "appropriate person" for the purposes of a Title IX private right of action  The analyses in these cases appear to emphasize evidence relating to the individual's ranking in the university hierarchy, responsibilities involving receiving allegations of harassment, and ability to correct or halt the misconduct  Yet, even when there arguably is such evidence, it may not be sufficient to render that individual an "appropriate person " In Ross v  University of Tulsa , for example, the Tenth Circuit held that campus security officers were not "appropriate person[s]" through whom the university could have actual notice of an on-campus sexual assault  The court rejected the contention that the officers' mandatory reporting of sexual assaults to university personnel rendered them "appropriate person[s]," instead likening mandatory reporting to a "clerical act" rather than taking corrective action  The court also rejected the argument that the officers' participation in investigations of campus violence rendered them "appropriate person[s]," as that contention, as presented, "would assume that anyone participating in the initiation of a corrective process" is an "appropriate person " Given the variability of courts' analyses as to who may constitute an "appropriate person," it is unlikely that a school's or university's Title IX Coordinator will categorically constitute an "appropriate person " Rather, as reflected in the above decisions, a court's determination—based on the legal standard set out in Gebser —will likely depend on the characteristics it finds indicative of an "appropriate person" and the evidence relating to the individual's responsibilities in that institution  As discussed earlier, after establishing "actual notice" of the discrimination to an "appropriate person," a plaintiff must additionally prove that the funding recipient acted with deliberate indifference in its response—that is, that the entity acted in a manner that was " clearly unreasonable in light of the known circumstances " Federal appellate courts interpret this standard to require more than a showing that the school or institution failed to respond or act reasonably, or was negligent  Nor is a school required to remedy the harassment to avoid liability in a private right of action based on "deliberate indifference " In these highly fact-intensive analyses, courts examine the nature of the allegations the funding recipient had knowledge of, and what actions the recipient took, if any, in response to that information to determine whether the response was so "clearly unreasonable" as to amount to "deliberate indifference" to the alleged sexual harassment or abuse  The clearest cases of "deliberate indifference" generally concern evidence that the recipient made no effort to respond at all to "actual" notice of sexual harassment or abuse  Evidence of such circumstances might include, for example, a funding recipient's failure to initiate an investigation into serious allegations, or take any disciplinary actions in light of repeated reports of sexual harassment  Where there is evidence that the funding recipient responded in some manner, however, federal case law reflects what appear to be divergent and variable analyses as to whether a response is so deficient as to amount to deliberate indifference  Federal appellate courts have commonly described the requisite showing for deliberate indifference as a "high" bar to meet  In Doe ex rel   Doe v  Dallas Independent School District , for example, the Fifth Circuit held that the school district's response did not amount to deliberate indifference, despite evidence that could arguably be described as reflecting a deficient response  In that case, the plaintiffs, a group of former students, alleged that the same third grade teacher had sexually abused numerous male students, over the course of four years  The plaintiffs presented evidence that in response to a report of sexual molestation, the principal told the parent that the alleged perpetrator was a "good teacher" and that he knew her son was lying; failed to report the allegation to Child Protective Services; did not monitor the teacher further or require him to attend any training; and never raised the issue of sexual abuse again with the teacher until he was ultimately arrested  In the court's view, this evidence failed to create a triable issue of deliberate indifference, as the principal had nonetheless interviewed the student, spoken with his mother, and warned the teacher that if the allegations were true, "he would be 'dealt with '" It could not say, the court concluded, that these actions "were an inadequate response" to the student's allegation  When faced with apparently similar evidence of a school's response to allegations of teacher sexual misconduct, the Eleventh Circuit held that, given "serious deficiencies," the district court had erred in holding that defendant's response, as a matter of law, was not deliberately indifferent  There, the principal had received sexual harassment complaints by two students about the same teacher  In its analysis, the court highlighted the response to the second complaint, because by that time, the principal had notice of a possible pattern  The principal, however, "effectively did nothing other than obtain a written statement" from the student and the teacher  In addition, though the principal, as he had with the first complaint, reported the second complaint to the school board's special investigative unit, he nonetheless failed to notify the unit that the allegation concerned "the same teacher who had been the subject of a formal investigation just months earlier " It could not be said, the court concluded, that "merely because school officials 'confronted [the teacher],' 'obtained statements' from the complaining students, and 'informed the [unit] of the sexual misconduct allegations' (while omitting material details)," that this response was reasonable  Rather, the "failure to institute any corrective measures aimed at ferreting out the possibility of [the teacher]'s sexual harassment of his students could constitute deliberate indifference " Meanwhile, some courts of appeals have analyzed allegations of deliberate indifference that, in their view, the Court's Gebser and Davis decisions did not directly address  In Simpson v  University of Colorado, Boulder , for example, the Tenth Circuit addressed allegations that a university had an "official policy of deliberate indifference" by failing to provide adequate training or guidance in light of an "obvious" need for such actions  There, the head coach and other staff of the university's football program selected current players to host high school recruits on campus, for the purpose of "'show[ing] the recruits a good time '" During one such football recruiting visit, the plaintiffs, who had agreed to meet with them, alleged that university football players and high school recruits sexually assaulted them  In analyzing the issue of deliberate indifference, the court highlighted evidence that the university coaching staff had prior and ongoing knowledge of sexual assaults occurring during football recruitment and by football players, including the rape of a female student by a university football player two months before the plaintiffs were assaulted  The university had also been previously advised by the local district attorney to implement changes and training to its football recruiting program in light of such sexual assaults  In addition, the head coach "continued to resist recruiting reforms " One player testified that he received little guidance on his responsibilities as a "player-host"; and a handbook provided by the school to the players, the court observed, did not "provide guidance to player-hosts on appropriate behavior by themselves and recruits " The court emphasized that the evidence would support findings that, before the plaintiffs had been assaulted, the head coach had both general and specific knowledge of sexual assaults occurring during recruiting visits, that there had been no change in the recruiting program to lessen the likelihood of such assaults, and that the university "nevertheless maintained an unsupervised player-host program " The evidence, the court held, created a triable issue of deliberate indifference  As with the other components of the Supreme Court's standard for a Title IX private right of action—"actual" notice to an "appropriate person"—federal case law reflects fact-intensive, variable determinations with respect to the evidence necessary to meet the "high" bar for showing deliberate indifference on the part of a funding recipient  In addition to the private rights of action discussed above, Title IX is also enforced by federal agencies that provide funding to educational programs  Title IX makes nondiscrimination based on sex a condition for receiving federal financial assistance in any education program or activity  In this administrative enforcement context, if a school is found to have violated Title IX, the ultimate sanction is termination or suspension of federal funds, rather than a legal judgment requiring payment of damages to a particular student  Agencies are authorized to issue regulations (subject to presidential approval) and orders to enforce the statute and are responsible for monitoring recipients' compliance with Title IX  While a number of federal agencies issue funds for educational programs, and thus are responsible for enforcing the statute with respect to recipients of financial assistance for educational programs, two agencies play particularly prominent roles in enforcing Title IX  Pursuant to the Education Amendments of 1974, the Secretary of Education (ED) is specifically directed to promulgate regulations concerning the prohibition of sex discrimination at education programs that receive federal assistance  Because ED is, among other things, "the primary administrator of federal financial assistance to education," the agency plays a lead role in enforcing Title IX against educational institutions  And according to an executive order, the Attorney General coordinates the implementation and enforcement of Title IX across the executive branch  Subject to the coordinating function of the Attorney General, the Department of Justice's Civil Rights Division and OCR collaborate in enforcing Title IX consistent with a memorandum of understanding reached between the agencies, which notes that OCR has primary responsibility for enforcing the statute directly against recipients of financial assistance from ED through complaint investigations and compliance reviews  Accordingly, ED has promulgated regulations implementing Title IX that apply to traditional educational institutions of all levels that receive federal assistance, including elementary and secondary schools, as well as institutions of higher education  Those regulations specifically bar educational institutions from excluding individuals or denying the benefits of any education program or activity on the basis of sex  ED regulations also require that recipients of federal financial assistance that operate education programs designate an employee (commonly referred to as the Title IX Coordinator) to coordinate efforts to comply with ED regulations regarding sex-based discrimination  Further, schools must establish grievance procedures that provide "prompt and equitable resolution" of complaints alleging prohibited actions  Pursuant to its role in enforcing Title IX, OCR may conduct periodic reviews of institutions, or directed investigations, to ensure that recipients of federal funds are complying with applicable requirements  OCR also receives complaints from individuals alleging violations of Title IX by educational institutions and investigates allegations  When violations of the statute are found through these means, the office can seek informal resolution through a resolution agreement  According to OCR, if negotiations do not reach a resolution agreement, it may then take more formal enforcement measures, including seeking to suspend or terminate an institution's funding  Notably, neither Title IX's text nor ED's current regulations directly address sexual harassment  In the administrative context, ED's OCR has issued a series of guidance documents that have interpreted Title IX to bar sexual harassment and define distinct responsibilities for educational institutions with regard to such allegations  These documents—while sometimes subject to change—generally reflect a different analysis for assessing a school's Title IX liability for harassment than the Supreme Court case law addressing private rights of action for damages for sexual abuse or harassment  In particular, ED has applied a constructive notice requirement that prompts a school's Title IX responsibility to respond, rather than "actual notice" to "an appropriate person" as required in the context of suits for damages  In addition, while the Supreme Court has explained that a school's response will result in liability only where "clearly unreasonable," ED has articulated baseline standards for how schools must respond to comply with Title IX  Finally, while the Supreme Court rejected holding schools responsible for sexual harassment under theories of vicarious liability, ED has held schools responsible for sexual harassment under Title IX where a teacher commits misconduct in the scope of their employment  In 1997, OCR released a guidance document stating that sexual harassment of students by school employees, other students, or third parties is a form of sex discrimination prohibited by Title IX  The guidance explained that two general types of conduct constituted sexual harassment: 1  Quid pro quo harassment: wherein a school employee "explicitly or implicitly conditions a student's participation in an education program or activity or bases an educational decision on the student's submission to unwelcome sexual advances, requests for sexual favors, or other verbal, nonverbal, or physical conduct of a sexual nature"; or 2  Hostile environment harassment: wherein sexual harassing conduct by a school's employee, another student, or a third party "is sufficiently severe, persistent, or pervasive to limit a student's ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment " In the former case, the 1997 Guidance explained that a school would be liable for quid pro quo harassment by an employee in a position of authority whether or not it knew or should have known of the harassment  In the latter case, the 1997 Guidance explained that, in instances of hostile environment harassment by employees , a school would be liable for harassment if the employee acted with apparent authority or was aided in carrying out the harassment due to his or her position  With respect to sexual harassment by other students or third parties , a school would be liable for harassment if "(i) a hostile environment exists in the school's programs or activities, (ii) the school knows or should have known of the harassment, and (iii) the school fails to take immediate and appropriate corrective action " The Guidance explained that while Title IX does not render a school responsible for the actions of its students, it does make schools responsible for their "own discrimination in failing to remedy [harassment] once the school has notice " Following the release of OCR's 1997 Guidance, the Supreme Court shortly thereafter recognized a substantively different standard for establishing liability in a private suit for damages directly against a school  As discussed above, in 1998, in Gebser , the Supreme Court ruled that in cases of harassment committed by a teacher , a school district is liable only when it has actual knowledge of allegations by an "appropriate person," and so deficiently responds to those allegations that its response amounts to deliberate indifference to the discrimination  And the next year in Davis , the Court held that in addition to a showing of actual knowledge by an appropriate person, and deliberate indifference, a plaintiff suing for damages for sexual harassment committed by a student must show that the conduct was "so severe, pervasive, and objectively offensive" that it denied the victim equal access to educational opportunities or benefits  Crucially, the Court in Gebser distinguished between actions by a school that could result in Title IX liability for damages in a private right of action, and Title IX administrative requirements imposed by a federal agency in implementing and enforcing the statute  According to the Court, agencies possess authority to enforce requirements that effectuate Title IX's mandate, "even if those requirements do not purport to represent a definition of discrimination under the statute " In other words, agencies enforcing Title IX may administratively require recipients to comply with certain procedures and rescind funding for violations, even though breaches of such requirements might not subject a school to liability under a private suit for damages  Following these Supreme Court decisions regarding the standard for liability in Title IX damages suits alleging sexual harassment, ED issued a number of guidance documents generally reaffirming its basic position outlined in its 1997 Guidance, including with respect to notice, a school's responsibilities under Title IX to comply with the statute, and the application of vicarious liability in certain situations  In these documents, ED has indicated that the liability standard imposed by the Supreme Court for Title IX sexual harassment violations is distinct from the standards appropriate in the administrative enforcement context  In other words, a school's responsibilities in responding to sexual harassment allegations under Title IX have been treated differently in the context of a suit for damages than in the administrative enforcement context  In 2001, OCR issued a Revised Sexual Harassment Guidance document that—in light of the intervening Supreme Court decisions that set a more stringent standard for obtaining relief regarding private damages actions —reaffirmed the standards of the agency's 1997 Guidance as grounded in Title IX regulations and distinct from private damages litigation  The guidance explicitly applies to all educational institutions that receive federal funds, including universities  It outlines the compliance standards OCR uses for enforcing and investigating violations of Title IX  As a threshold matter, schools are responsible for adopting grievance procedures that provide prompt and equitable resolution of complaints of sexual harassment  Failure to do so will mean that a school is in violation of Title IX  Generally speaking, when sexual harassment has occurred, educational institutions must take "prompt and effective action calculated to end the harassment, prevent its recurrence, and, as appropriate, remedy its effects " If the "school, upon notice of the harassment, responds by taking prompt and effective action to end the harassment and prevent its recurrence, the school has carried out its responsibility under the Title IX regulations " Though framed as guidance, the 1997 and 2001 documents were promulgated by ED after an opportunity for the public to comment on them  (This does not mean, however, that the documents are legislative rules that carry the force of law; guidance documents generally serve to inform the public about the agency's approach to enforcement of the laws and regulations it administers  ) The 2001 Guidance stated that "unwelcome conduct of a sexual nature" constitutes sexual harassment  It indicated, however, that it aimed to "move away from specific labels for types of sexual harassment " Instead, the 2001 Guidance explained that the crucial issue in each case "is whether the harassment rises to a level that it denies or limits a student's ability to participate in or benefit from the school's program based on sex " In that situation, "harassment has occurred that triggers a school's responsibilities under, or violates, Title IX or its regulations " That said, it went on to describe types of harassment that largely tracked the categories outlined in the 1997 Guidance: quid pro quo harassment and hostile environment harassment  In the former situation, wherein a teacher or employee conditions a benefit or educational decision on a student's submission to unwelcome sexual conduct, such harassment is automatically considered harassment that limits or denies a student's ability to participate in or benefit from the school's program and thus discriminates based on sex in violation of Title IX  Unlike so-called quid pro quo harassment, a case of hostile environment harassment requires a further investigation into whether the conduct is sufficiently serious to limit or deny a student's ability to benefit from or participate in a school's program because of sex  Because fellow students do not generally have positions of authority, student-on-student harassment generally is considered hostile environment harassment rather than quid pro quo harassment, although teachers and employees may also create a hostile environment  The 2001 Guidance explained that, in evaluating whether hostile environment harassment has occurred, OCR examines all circumstances relevant to the situation  This includes whether the conduct in question was welcome  The 2001 Guidance also explained that, in the context of harassment by a teacher or school employee, the extent of a school's responsibilities to address harassment depends on whether the harassment occurs within "the context of the employee's provision of aid, benefits, or services to students" (i e , in the context of their job responsibilities)  With respect to harassment by teachers or employees in the scope of their job responsibilities (or who reasonably appear to be acting in that capacity), assuming the harassment limits or denies a student's ability to benefit from or participate in a school program, a school is responsible for the discriminatory conduct and must stop the behavior, prevent its recurrence, and remedy the effects of harassment for the victim  In such situations, a school is responsible to do this "whether or not" it has notice of the behavior  Whether sexual harassment occurs within the scope of an employee's job responsibilities can depend on a variety of factors  In cases of quid pro quo harassment, the behavior clearly occurs in the scope of an employee's job responsibilities  For hostile environment harassment, OCR will evaluate a number of factors to determine whether the harassment occurred in the context of an employee's job responsibilities  The 2001 Guidance also indicates that sometimes harassment that does not occur within an employee's job responsibilities will be sufficiently serious to create a hostile environment  In these cases, once a school has notice of the behavior, it has a duty to stop the harassment and prevent its recurrence  Likewise, in the context of student-on-student harassment (or harassment by third parties) that creates a hostile environment, the school is responsible for eliminating the environment and preventing its recurrence  However, a school is in violation of Title IX if it has notice of the environment and fails to take "prompt and effective action" to correct the situation  In that case, the school is responsible for ending the harassment, preventing its recurrence, and remedying the effects of harassment for the student that "could reasonably have been prevented" if the school reacted appropriately  As noted above, in certain situations of harassment by a teacher or employee, schools are responsible for harassment even without notice  Otherwise, in cases of sexual harassment by employees, students, or third parties, the 2001 Guidance explains that recipients have notice of a sexually hostile environment if a responsible school employee "knew, or in the exercise of reasonable care, should have known," of the harassment  A responsible employee is "any employee who has the authority to take action to redress the harassment, who has the duty to report to appropriate school officials sexual harassment or any other misconduct by students or employees, or an individual who a student could reasonably believe has this authority or responsibility " Even if a student fails to inform the school or use the appropriate grievance procedures to complain of harassment, a school will be in violation of Title IX if it knows or reasonably should know of a hostile environment  A school is in violation of Title IX if it has notice of a hostile environment and fails to take immediate and effective corrective action  Once a school has notice of potential sexual harassment of students, the 2001 Guidance explained that "it should take immediate and appropriate steps to investigate or otherwise determine what occurred and take prompt and effective steps reasonably calculated to end any harassment, eliminate a hostile environment if one has been created, and prevent harassment from occurring again " In cases of reports of harassment by a student, parent of an elementary or secondary student, or harassment observed by a responsible employee, regardless of whether the harassed student, or student's parents, decide to file a formal complaint, "the school must promptly investigate to determine what occurred and then take appropriate steps to resolve the situation " For situations where a school learns of harassment via other means, a variety of factors will determine whether there are reasonable grounds for the school to investigate  If the allegations are confirmed, then a school has a responsibility to respond as described above  The 2001 Guidance also noted that informal mechanisms may sometimes be used to resolve complaints if the parties agree to do so  However, it made clear that certain informal procedures, such as mediation, are not appropriate in certain cases, such as alleged sexual assault  Finally, the Guidance noted that while "the rights established under Title IX must be interpreted consistent with any federal guaranteed due process rights," schools should nevertheless "ensure that steps to accord due process rights do not restrict or unnecessarily delay the protections provided by Title IX to the complainant " In 2011, OCR issued a Dear Colleague Letter that supplemented its 2001 Guidance and focused on the obligations under Title IX for schools that focused exclusively on peer-to-peer harassment, rather than harassment by a teacher  The Letter explained that sexual harassment "is unwelcome conduct of a sexual nature," and includes "unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature " Sexual harassment also includes sexual violence, which refers to "physical sexual acts perpetrated against a person's will or where a person is incapable of giving consent due to the victim's use of drugs or alcohol " Sexual harassment creates a hostile environment "if the conduct is sufficiently serious that it interferes with or limits a student's ability to participate in or benefit from the school's program " When a school "knows or reasonably should know about student-on-student harassment that creates a hostile environment, Title IX requires the school to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects " The Letter also noted that schools will sometimes have an obligation to respond to incidents of sexual harassment that occur "off school grounds, outside a school's education program or activity " And whether or not the conduct occurred, if a student files a complaint, "the school must process the complaint in accordance with its established procedures " Because students can experience the effects of off-campus sexual harassment at school, "schools should consider the effects of the off-campus conduct when evaluating whether there is a hostile environment on campus " With respect to investigations of sexual harassment allegations, the Letter stated that the standards for liability in the criminal context are distinct from Title IX, and therefore a criminal investigation into allegations of sexual violence does not relieve a school of its duty to conduct a Title IX investigation  It also instructed schools not to wait until the conclusion of a criminal investigation or proceeding to begin their own investigation under Title IX, and if appropriate, to take immediate steps to protect students while a criminal investigation occurs  Although a school may need to temporarily delay an investigation while a criminal fact-finding occurs by police, once the police have finished their fact-finding, the school must promptly resume and complete its fact-finding for Title IX purposes  The 2011 Dear Colleague Letter also outlined various elements of a school's grievance procedures that are critical in order to provide "prompt and equitable resolution of sexual harassment complaints," including sexual violence  The Letter noted "in order for a school's grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard " This standard contrasted with the 2001 Guidance, which did not impose an evidentiary standard on school investigations, as well as the prior practice of some schools, which used a "clear and convincing" standard  A preponderance of the evidence standard, which requires a showing that a fact or event is more likely than not, is lower than a clear and convincing standard, which requires providing the "ultimate factfinder [with] an abiding conviction that the truth of       factual contentions are 'highly probable '" The Letter also strongly discouraged schools from allowing the parties in a hearing to personally cross-examine one another  It noted that if a school allows parties to appeal a finding or remedy, it must do so for both parties  Following requests by schools on how to adequately comply with the 2011 Dear Colleague Letter, ED issued a forty-six-page supplemental Questions and Answers document in 2014 (2014 Q&A) that further explained the responsibilities of schools with regard to allegations of student-on-student sexual violence  It provided more specific instructions to educational institutions regarding their obligations under Title IX  Like the 2011 Dear Colleague Letter, the 2014 Q&A took the form of a guidance document, rather than a legally enforceable legislative rule  The Q&A made clear that when "a school knows or reasonably should know of possible sexual violence, it must take immediate and appropriate steps to investigate or otherwise determine what occurred " It clarified that, in cases of student-on-student sexual violence, a school violates Title IX when (1) "the alleged conduct is sufficiently serious to limit or deny a student's ability to participate in or benefit from the school's educational program" (creating a hostile environment) and (2) "the school, upon notice, fails to take prompt and effective steps reasonably calculated to end the sexual violence, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects " The 2014 Q&A also explained that Title IX requires schools, upon notice of an allegation, to protect complainants and ensure their safety through the use of interim steps before an investigation is complete  Among other things, it further specified in detail the requirements of Title IX with respect to the responsibilities of a school's Title IX Coordinator (the employee required by regulation to coordinate a school's compliance with Title IX), the elements expected in a school's written grievance procedures for responding to complaints of sexual violence, and which individuals qualify as responsible employees who are required to report allegations of sexual violence to a school's Title IX Coordinator  The document also detailed the requirements for schools in conducting investigations into alleged sexual violence  It stressed that while a school is permitted to use its own "student disciplinary procedures" to process complaints of sexual violence, that if a school chooses to do so, the imposition of sanctions against a perpetrator, "without additional remedies, likely will not be sufficient to eliminate the hostile environment and prevent recurrence " The 2014 Q&A noted that because Title IX investigations will not result in the incarceration of individuals, "the same procedural protections and legal standards are not required" in Title IX investigations as are compelled in criminal proceedings  Even if a criminal investigation of student-on-student sexual violence is ongoing, a school must conduct its own Title IX investigation  Indeed, the conclusion of a criminal investigation without charges "does not affect a school's Title IX obligations " The document also explained that schools were not required to conduct hearings to assess allegations of sexual violence, but if they did, they could not require the complainant to attend  Further, in the 2014 Q&A, OCR "strongly discourage[d]" schools from allowing parties to personally cross-examine one another because such actions "may be traumatic or intimidating, and may perpetuate a hostile environment " Instead, schools could allow parties to submit questions to a trained third party to ask on their behalf  The third party was advised to screen those questions "and only ask those it deem[ed] appropriate and relevant to the case " In response to the foregoing guidance from ED, as well as increased oversight from OCR between 2011 and 2016, schools developed a variety of procedures to ensure that their responses to allegations of sexual assault complied with Title IX  Generally speaking, the specific type of procedures for investigating allegations of sexual harassment vary considerably across educational institutions  While Title IX provides ED with some discretion in terms of administrative enforcement of the statute's bar on sex-based discrimination, including the ability to require public and private schools to develop certain procedures for handling complaints (as long as those schools receive federal funds), this discretion is constrained with respect to state actors (including public universities) by due process protections that set a baseline for the procedural protections afforded to the accused  In the public university context, a number of students subject to disciplinary sanctions for misconduct thus challenged the disciplinary procedures in state and federal courts as unconstitutional  In particular, a number of students faced with disciplinary action by public universities have raised constitutional challenges to the Title IX procedures used to find them responsible for sexual misconduct, arguing that universities violated the Due Process Clause in the handling of their case  The Due Process Clause of the Fourteenth Amendment requires states to observe certain procedures when depriving individuals of life, liberty, or property  In addition to protecting against the deprivation of an individual's physical property, the Constitution guards against the deprivation of certain "property interests" without due process  The property interests protected by the Due Process Clause are not themselves created by the Constitution; instead, those interests arise from an independent source, such as state or federal law  To have a protected property interest in a government-created benefit, one must show a "legitimate claim of entitlement" that originates in "existing rules or understandings that stem from an independent source such as state law " Likewise, when a state deprives an individual of liberty, states must afford due process to the individual  In fact, when a "person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him," due process may be implicated  In these circumstances, courts often require an accompanying state action that alters or removes a legal status to constitute a deprivation of liberty  Precisely what procedures are constitutionally required before depriving individuals of a protected interest can vary  When deciding what process is due, courts balance three factors enunciated by the Supreme Court in Ma thews v  Eldridge : (1) "the private interest that will be affected by the official action"; (2) the risk of an erroneous deprivation and the probable value of additional procedures; and (3) the interest of the government  In general, the Court has made clear that individuals with a protected interest are entitled to notice of the proposed action and a "meaningful opportunity to be heard" before the state may deprive them of that interest  The Supreme Court has explained, however, that due process is not a "technical conception with a fixed content unrelated to time, place, and circumstances " Instead, the concept is "flexible and calls for such procedural protections as the particular situation demands " In conducting the balancing of factors pursuant to  M athews v  Eldridge , the severity of the deprivation is a key factor in determining what procedures are constitutionally required  In general, the stronger the private interest at risk of deprivation, the more formal and exacting procedures will be required by courts  The only Supreme Court case to focus on procedural due process in the (nonacademic) student discipline context is Goss v  Lopez   In that case, high school students challenged their suspension from school for up to 10 days without a hearing  The Court first ruled that the public school students had a "legitimate entitlement to a public education," which was a property interest protected by due process; and that interest was deprived by the suspension  As to the process required, the Court ruled that, at a minimum, "students facing suspension       must be given some kind of notice and some kind of hearing " The Court also clarified that cases of more stringent sanctions, such as suspensions beyond 10 days or expulsions, "may require more formal procedures " Generally speaking, because public universities constitute state actors subject to the Due Process Clause, they must comply with constitutional standards when suspending or expelling students  Private universities, on the other hand, do not  The Supreme Court has assumed, without deciding on the merits, that students of public universities enjoy a "constitutionally protectable property right" in their continued enrollment in an educational institution  A number of federal courts of appeals have ruled that students enrolled in public universities have liberty and/or property interests in their education and that expulsion and certain suspensions can constitute a deprivation of that interest  As discussed in further detail below, as a baseline matter, federal courts have held that due process requires public schools to provide students with notice of the charges against them, the evidence used to make a determination, and the ability to present their side of the story to an unbiased decisionmaker  Of course, whether a public university has afforded a student due process "is a fact-intensive inquiry and the procedures required to satisfy due process will necessarily vary depending on the particular circumstances of each case " While colleges and universities have developed various procedures to comply with OCR's guidance regarding an institution's response to allegations of sexual harassment, a number of individuals subject to these disciplinary processes have challenged some of these procedures in federal court  Several courts have since issued decisions in cases brought by students asserting a due process violation in the context of a Title IX investigation or adjudicatory proceeding  The following section discusses recent notable judicial rulings that address the constitutionality of disciplinary proceedings in the context of sexual misconduct  The discussion below is organized by the type of claim raised against the public university: 1  the university failed to provide adequate notice of the charges against the student; 2  the university did not permit the accused student to confront and challenge the credibility of witnesses who testified against him; 3  the university allowed biased decisionmakers to oversee the proceedings; and 4  the university employed unfair review processes when rehearing an allegation brought by a complainant  Importantly, some of the judicial rulings discussed below address whether a student's stated claim is sufficient to survive a motion to dismiss and do not reach conclusive determinations about the evidence sufficient to establish a due process violation  One type of legal challenge raised by students accused of sexual misconduct is that the public universities failed to adequately notify them of the charges  As an initial matter, reviewing courts have taken the view that there generally will be no due process violation on notice grounds when the school (1) provides a student with timely notice of the actual, full charges against him; and (2) provides the accused student with a meaningful opportunity to prepare for the disciplinary hearing against him  The absence of such protocols, however, can form the basis of a viable due process claim  For example, at one university, an accused student alleged that he was interviewed by a school staff member assigned to investigate charges of sexual misconduct against him without first being notified of the existence of the sexual misconduct allegation  The student was eventually suspended from the university  A federal district court ruled that, given the severity of the suspension (three years), the lack of notice could amount to a due process violation  The court thus held that the student had stated a claim sufficient to survive a motion to dismiss  In another case, an accused student alleged that he was not given adequate notice of the scope of charges against him  Rather, the school only notified him that his conduct on a particular day was under review, but expelled him for sexual misconduct that occurred in relation to other incidents and dates  The federal district court ruled that "[b]y conveying a limited scope of focus to plaintiff, defendants prejudiced plaintiff's ability to mount an effective defense, which increased the possibility of an erroneous outcome " Taken together with other procedural issues in the school's investigation and decision, the court concluded that the school had deprived the student of a liberty interest without due process of law  Similarly, the Sixth Circuit ruled that a student suspended by a university because of suspected sexual assault had sufficiently pleaded a due process violation when the university allegedly did not make available the evidence used in its disciplinary decision against him  The university's Title IX investigator compiled an investigatory report, which was allegedly used by the school's disciplinary hearing panel to adjudicate the student's case  However, the investigator failed to provide the report to the defendant  The court reasoned that the Constitution requires that a school provide the evidence used against a student in the context of significant disciplinary decisions and that a failure to do so constitutes a due process violation  A number of students have brought claims alleging a denial of due process because they were not afforded the opportunity to cross-examine witnesses in school disciplinary hearings  Courts have often rejected these arguments, however, in both sexual harassment proceedings and other disciplinary hearings, noting that the rights of students in disciplinary proceedings are not the same as those of criminal defendants  Case law reflects that courts have been more willing to entertain such claims when students have been denied an opportunity to challenge the credibility of witnesses where a witness's testimony concerns disputed and critical facts  As a general matter, cross-examination has not been regarded as a necessary feature of due process in the civil context  Even outside the context of sexual harassment allegations, courts have often denied due process challenges to university adjudicatory proceedings where students were not permitted to directly cross-examine witnesses, noting that the Due Process Clause does not guarantee the right to cross-examination in school disciplinary proceedings  This principle has been applied in recent cases alleging due process violations in the sexual harassment context  In one case, students challenged a university's adjudicatory proceedings regarding allegations of sexual assault, where accused students were permitted to submit written questions to a panel chair rather than directly to the complainant  The reviewing district court nonetheless rejected a due process challenge to the proceedings  Similarly, the Sixth Circuit denied a due process challenge to a university's disciplinary hearing concerning sexual assault allegations where students were not permitted to directly cross-examine their accuser  The students were permitted to submit written questions to the hearing panel, but were not permitted to submit any follow-up questions, and the panel failed to ask all of the questions they submitted  The circuit court reasoned that the proceedings satisfied the "limited" requirement of cross-examination where credibility is at issue, as the "marginal benefit that would accrue to the fact-finding process by allowing follow-up questions … is vastly outweighed by the burden" on the school  Likewise, the Fifth Circuit rejected a due process challenge to a university's disciplinary proceedings where the challengers argued they were denied the ability to effectively cross-examine witnesses and confront their accuser  In that case, the court noted that the school's decision did not rest on testimonial evidence, but on the videos and a photo taken and distributed by one of the challengers  Where a credibility determination was critical to the outcome of a proceeding, however, courts have often ruled in favor of due process challenges  For instance, the Sixth Circuit held that a university violated due process when it failed to provide any form of cross-examination in the hearing and the disciplinary decision necessarily rested on a credibility determination  In that case, the university based its decision to suspend a student entirely on the hearsay statement of the complainant, who did not appear at the disciplinary hearing  Importantly, the court noted that the suspended student only requested the additional procedure of posing questions to his accuser through the hearing panel, but he did not ask for the opportunity to directly cross-examine her  The court concluded that in such circumstances, some method must be made available to the adjudicative body to "assess the demeanor of both the accused and his accuser " The court concluded this procedure was necessary to comport with due process when the university's decision rested on a credibility determination  Likewise, the absence of a live hearing may sometimes form the basis of a viable due process claim  For instance, one federal district court ordered a university to provide an accused student facing the possibility of expulsion with a live hearing in order to comply with due process  In that case, the university's procedures for handling sexual misconduct allegations involved an investigator who would meet separately with the parties, conduct interviews with witnesses, and eventually reach a determination as to culpability without any opportunity for a hearing  The court reasoned that due to "the University's method of private questioning through the investigator, Plaintiff has no way of knowing which questions are actually being asked of Claimant or her response to those questions " Accordingly, the court concluded that the university violated the accused student's right to due process  Similarly, the Sixth Circuit has ruled that where credibility is at issue, a university "must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder " In that case, a university investigator concluded that the evidence supporting a finding of sexual misconduct was not sufficient, but the university's appeals board reversed after reviewing the report because it found the description of events given by the alleged victim and adverse witnesses more persuasive  At no time was the accused student given a live hearing or a chance to cross-examine his accuser or any adverse witnesses  The Sixth Circuit ruled that because the university ultimately had to "choose between competing narratives" in order to resolve the case, due process required a chance to cross-examine his accuser and adverse witnesses before a neutral fact-finder  Some students have also brought due process claims alleging that they were denied the ability to offer exculpatory evidence on their own behalf  Courts appear to examine such claims on a largely fact-specific basis  For instance, in one suit brought against a university, a student alleged he was denied the opportunity to present physical exculpatory evidence on his own behalf at a sexual assault disciplinary hearing  Specifically, the student claimed he was unable to present text messages at his hearing that he claimed would exonerate him  The district court ruled that this allegation raised concerns that he was denied due process  Students subject to disciplinary proceedings regarding sexual harassment or assault at institutions of higher education have also brought challenges alleging that a decisionmaker was biased against them  As a threshold matter, courts generally assume that school disciplinary panels are "entitled to a presumption of impartiality, absent a showing of actual bias " A plaintiff must generally allege facts sufficient to overcome this baseline presumption, such as statements by decisionmakers or a pattern of decisionmaking evidencing bias  For instance, a Fifth Circuit panel rejected a due process claim alleging bias in a university disciplinary hearing concerning sexual assault because the challengers failed to show how the integrity of the proceedings was undermined  In that case, the individual tasked as a victim advocate for the school investigated the charges against the accused and advised the panel members who made the disciplinary decision  The court reasoned that the investigator relied on photo and video evidence to render his findings to the panel and "there is nothing in the record       to suggest that a different investigator would have uncovered information diminishing the significance of that graphic evidence to the initial findings " Further, a separate university attorney advised the panel that they were free to draw their own conclusions from the proffered evidence  Evidence of bias in the consequential behavior or statements of decisionmakers, however, may give rise to a viable due process challenge  For example, the Sixth Circuit recently held that a student sufficiently pleaded a due process claim where he alleged that a university disciplinary hearing for alleged sexual assault was biased against him  In that case, one of the hearing panel members acted as investigator, prosecutor, and judge  The court noted that that fact alone did not give rise to a due process violation  Rather, because that individual also allegedly dominated the panel with remarks intended to reduce the defendant's credibility, and reportedly said during the hearing, "I'll bet you do this [commit sexual assault] all the time," the student had plausibly alleged that the hearing panel member was not impartial and had pre-judged his case  Courts have also addressed claims alleging a due process violation for bias based on institutional pressures, such as the sexual assault training received by university officials  For example, one district court rejected a due process claim which argued that university staff members were biased because they received sexual assault training that was not balanced with training for protecting the due process rights of accused students  The court reasoned that it was a "laudable goal" for the university to raise awareness of sexual assault and increase sensitivity to problems that victims of sexual violence experience  Plaintiffs' mere belief that the school "ha[d] a practice of railroading students accused of sexual misconduct simply to appease the Department of Education and preserve its federal funding" was unsupported by any evidence  In contrast, another district court rejected a motion to dismiss a due process claim brought by an expelled student alleging that the investigation and training materials given to the panel who decided his case were biased  The court reasoned that while this was a "he-said/she-said" case, "there seems to have been an assumption under [the] training materials that an assault occurred  As a result, there is a question whether the panel was trained to ignore some of the alleged deficiencies in the investigation and official report the panel considered " Accordingly, the court concluded that there may have been a due process violation because it was "plausible that the scales were tipped" against the accused student  Finally, a number of federal district court cases have addressed allegations that a university's disciplinary proceedings violated due process on the basis of unfair review processes for rehearing appeals  In one district court case, a student was cleared by a hearing panel on a charge of sexual assault, but the university ordered a new hearing, apparently premised only on the school being unable to adequately prove its case in the first hearing  The district court found this to be fundamentally unfair to the student and ruled that the allegations survived the university's motion to dismiss  Similarly, in another district court case, a suspended student challenged the validity of a school's procedures where he was initially found not responsible for sexual misconduct by a hearing board, but was later determined guilty after the complainant appealed that decision  At the administrative appeal stage, the school did not give the defendant sufficient notice of, or time to respond to, new evidence against him; did not provide him with details of the identity of a woman he was newly accused of assaulting; did not tell him the names of the members of the appeal board; did not give him notice of the appeal board's meeting; and did not permit him to attend that meeting  The appeals board reversed the initial hearing board's determination that the student was not responsible for sexual misconduct, without explanation, and without any oral presentations or live testimony  The reviewing federal district court ruled that the school failed to provide the student with a meaningful hearing  Likewise, a student brought a claim in federal district court against a university after being expelled for sexual assault even though he had been found not responsible by an initial hearing panel  In that case the school permitted a rehearing after the complainant appealed the initial hearing panel's decision, and subsequently the individual presiding over the appeal expelled the student  The individual presiding over the appeal conducted off-the-record and ex parte meetings with the accuser and failed to deliver the accused student a record of those meetings  According to the reviewing court, by the time the student was permitted to present his defense, the individual overseeing his appeal had pre-judged the case, and expelled the accused student without providing a basis for the decision  The court ruled that these procedural inadequacies, combined with a failure to offer the student notice of the full scope of allegations against him, combined to constitute a due process violation  With the foregoing considerations in the background, in September 2017 OCR withdrew the 2011 Dear Colleague Letter and 2014 Questions and Answers document  ED explained that it would begin the rulemaking process to codify a school's responsibilities under Title IX  In the interim, ED stated that it would continue to rely on the 2001 Guidance; it also issued a new Question and Answer document indicating how the department would address sexual misconduct during that time  The document notifies schools that they may, in certain circumstances, resolve complaints through mediation  It also notifies schools that they may choose to allow appeals either by both parties or solely by the party found to have committed sexual misconduct and not the alleged victim  On November 29, 2018, ED issued a notice of proposed rulemaking in the Federal Register   If adopted, the proposal would significantly alter the responsibilities of schools in responding to allegations of sexual harassment  Among other things, the proposed regulation would (1) define in narrower terms what conduct qualifies as sexual harassment under Title IX; (2) require "actual notice" of harassment, rather than constructive notice, to trigger a school's Title IX responsibilities; (3) provide that a school's response to allegations of sexual harassment will violate the statute only if amounting to deliberate indifference; and (4) impose new procedural requirements that reflect concern for due process when schools investigate allegations and make determinations of culpability  The proposed regulation would first define sexual harassment in the following ways: an employee conditioning the provision of a benefit, service, or aid on the individual's participation in unwelcome sexual conduct (i e , quid pro quo); "unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient's education program or activity" (i e , hostile environment); or sexual assault (as defined in regulations implementing the Clery Act)  Notably, among the changes to past definitions of sexual harassment issued by ED, the proposal would establish a higher threshold to show a Title IX violation based on hostile environment harassment than that required by ED in the past  As explained in an earlier section of this report, ED's 2001 Guidance described hostile environment harassment as sexually harassing "conduct [that] is sufficiently serious to deny or limit a student's ability to participate in or benefit from the school's program based on sex " The proposed regulations would instead generally adopt the standard for actionable harassment that the Supreme Court's 1999 Davis decision applied in the context of private suits for damages: "unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient's education program or activity " In other words, whereas ED previously defined a hostile environment harassment as harassment that is "sufficiently serious to limit" a student's ability to benefit from or participate in a school's program, the proposed regulations would define a hostile environment as one "that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient's education program or activity " Second, in a departure from past administrative practice, in which ED considered "constructive notice" (i e , known or should have known) to trigger a school's responsibilities in cases of student-on-student harassment, and did not impose a notice requirement in certain cases of harassment by a teacher or employee, the proposal would establish that a school has a duty to respond to allegations of sexual harassment only when it has "actual knowledge " Actual knowledge is defined as notice of harassment (or allegation of harassment) to a school's Title IX Coordinator or official with authority to institute corrective measures; the regulations explicitly reject imputing knowledge to a school based on respondeat superior or constructive notice  Notably, in contrast to past guidance from ED, the mere ability or obligation to report by a school employee does not qualify them as one who possesses authority to institute corrective measures  The proposal explains that this threshold for triggering a school's obligations is intended to align the administrative standard imposed by ED with that articulated by the Supreme Court in Gebser and Davis in the context of private litigation seeking money damages  Further, the proposed regulations would compel schools to respond only to sexual harassment that occurs within a school's "education program or activity " This contrasts with past ED guidance which provided that schools sometimes will be responsible to respond to harassment that occurs "outside a school's education program or activity " For instance, past ED guidance (since rescinded) required schools to "process all complaints of sexual violence, regardless of where the conduct occurred," in order to determine if the conduct has effects on campus  In another departure from prior administrative practice, in which ED judged a school's response under a "reasonableness" standard, the proposed regulations only require a school to respond in a manner that is not "deliberately indifferent " Deliberate indifference is a "response to sexual harassment [that] is clearly unreasonable in light of the known circumstances " Once again, this would tether a school's responsibility to that announced by the Court in Davis in the context of private suits for damages  The proposal explains that, for ED, this standard aptly holds schools accountable while allowing for flexibility in making disciplinary decisions  The proposal outlines three situations in which a safe harbor is provided to a school from a finding of deliberate indifference  First, when a formal Title IX complaint is made (by a complainant or Title IX Coordinator), the proposed regulations outline a number of grievance procedures (outlined below) that schools must follow  When a school follows these procedures it would not be deliberately indifferent and has not discriminated under Title IX  Second, if a school has actual knowledge of harassment because of multiple complainants, the Title IX Coordinator must file a complaint  Again, compliance with the grievance procedures would negate any inference of deliberate indifference in this situation  Third, with respect to institutions of higher education, and in situations where there is not a formal complaint, a school would not be deliberately indifferent if it offers and implements supportive measures to the complainant that are aimed to restore or preserve the complainant's access to a school's education program or activity  The school must also at this time notify the complainant in writing of the right to file a formal complaint  As long as an institution of higher education follows these requirements, it would not be deliberately indifferent  Aside from these three situations, the proposed regulations provide that a school with actual knowledge of sexual harassment in an education program or activity must respond in a manner that is not deliberately indifferent  The proposal would also allow schools to remove an individual accused of sexual harassment from an educational program or activity on an emergency basis  However, a school must conduct an individualized risk and safety analysis, determine that the removal is justified because of an immediate threat to students or employees, and provide the accused with notice and an opportunity to challenge the decision  The regulations also allow schools to place a nonstudent employee on administrative leave during an investigation  A significant component of the proposal reflects concern that schools provide accused students with due process protections during the fact-finding process and ultimate determination of culpability  As a threshold matter, schools must investigate allegations received in a formal complaint, but if the alleged conduct would not (if proved) constitute sexual harassment under the regulations, or if it did not occur within a sch ool's program or activity, the complaint must be dismissed  Upon receipt of a formal Title IX complaint regarding sexual harassment, a school must provide written notice to the relevant parties of the allegations, including notice of the available grievance procedures, and notice of the allegations constituting a potential violation, "including sufficient details known at the time and with sufficient time to prepare a response before any initial interview " A school's grievance procedures must treat complainants and respondents equitably, which means that a school must both provide remedies for complainants upon a finding of sexual harassment as well as due process protections for a respondent before any sanctions are imposed  The proposal would provide that a school's treatment of a complainant in response to a formal complaint of harassment can constitute discrimination in violation of Title IX; likewise, a school's treatment of a respondent can discriminate on the basis of sex in violation of Title IX  The procedures must also require an objective evaluation of evidence (both inculpatory and exculpatory) and provide that credibility determinations not be made based on one's status; require that individuals involved in the investigation or decisionmaking process not be biased and receive training on ensuring student safety and providing due process for all parties; include a presumption that respondents are not guilty until proven otherwise; and describe the range of possible sanctions and remedies available, the standard of evidence used, the ability to appeal (if offered) and the range of available supportive measures  With respect to a school's actual investigation of alleged harassment, the proposed regulations require that a school must: place the burden of proof and of gathering evidence on the school (rather than either party); allow each party equal opportunity to present witnesses and evidence; not restrict parties from gathering and presenting relevant evidence or from discussing the allegations; permit both parties equally to have their choice of advisor or other person join them during proceedings, although the school may restrict an advisor's participation so long as restrictions apply equally to both parties; provide parties with written notice of the relevant details of hearings and interviews and allow sufficient time to prepare; for institutions of higher education, provide a live hearing where the decisionmaker must allow each party to ask the other party and witnesses all relevant questions (and follow-up questions) including those that challenge one's credibility; cross-examination must be done by the party's advisor; at the request of either party, schools must allow for cross-examination via technology with the parties in separated rooms; decisionmakers must not rely on any party or witness's statement if they do not submit to cross-examination; allow both parties an equal opportunity to review evidence from the investigation that is directly related to the allegations; and develop a report summarizing the relevant evidence and provide this to the parties at least 10 days prior to a hearing (or time where responsibility is determined)  Notably, these requirements depart from past ED guidance by requiring, for institutions of higher education, a quasi-judicial proceeding in the form of a live hearing  Each party may question the other side, and cross-examination must be conducted by a party's advisor  The proposed regulations would also significantly alter the ultimate decisionmaking requirements for schools  For instance, the decisionmaker in a proceeding may not be the investigator or the school's Title IX Coordinator  This would bar the practice of some universities that have used a single investigator to both examine allegations and reach a decision regarding culpability  And in contrast to past guidance from ED, the new regulations permit schools to apply either a preponderance of the evidence standard or a clear and convincing standard  However, schools may apply the former only if they use that same standard for conduct violations other than sexual harassment that carry the same maximum disciplinary penalty  Further, schools must apply the same standard of evidence for complaints against students as it does for employees and faculty  A schools may, but is not required to, allow appeals of decisions  If it does so, it must allow both parties to appeal  A school may also, at any point before reaching a final determination, facilitate an informal resolution process as long as it obtains the parties' written consent and notifies them of the requirements of the process  As discussed above, the antidiscrimination mandate of Title IX, enacted in 1972, prohibits discrimination "on the basis of sex" in educational programs in general terms  The statute does not expressly refer to or address sex discrimination in the form of sexual abuse, sexual harassment, or sexual assault  Nor does the statute address when, by whom, or under what circumstances such conduct will amount to a Title IX violation  Given the statute's silence on these issues, federal courts have largely determined when relief is available for individual victims of sexual abuse or harassment  Indeed, in creating the remedial scheme for a private right of action to address such claims, the Supreme Court sought to "'infer how the [1972] Congress would have addressed the issue'" if there had been an express provision in the statute, an approach that the Court observed "inherently entails a degree of speculation, since it addresses an issue on which Congress has not specifically spoken " Likewise, given the sparse statutory language, federal agencies have issued shifting guidelines at to the responsibilities of educational institutions in complying with Title IX  As a general matter, Congress enjoys substantial discretion to modify the terms of Title IX to clarify the appropriate standard in private suits for damages as well as in the administrative enforcement context  Congress could, for instance, amend Title IX to define the specific conduct that amounts to a violation of the statute regarding sexual abuse or harassment  In addition, an amendment could also clarify whether liability for harassment should be handled differently in elementary and secondary schools, as opposed to the university context  Likewise, legislation could distinguish between harassment by teachers from that between students  Further, because the private right of action under Title IX has been judicially implied, rather than expressly codified in statute, Congress could modify the legal standards that apply in a private suit for damages  Finally, aside from directly amending Title IX, Congress could also direct federal agencies to alter their administrative enforcement of the statute  For example, Congress could direct ED to promulgate regulations that distinguish between various types of sexual harassment or treat harassment differently depending on the context 
Report 2:  Lower courts have approved as "factual and uncontroversial" within the meaning of Zauderer a variety of other commercial disclosure requirements, including regulations requiring the disclosure of: country-of-origin information for meat; calorie information at restaurants; the fact that products contain mercury; and textual and graphic warnings about the health risks of tobacco products  By contrast, in a 2015 opinion, the D C  Circuit concluded that a federal regulation requiring firms to disclose whether their products used "conflict minerals" that originated "in the Democratic Republic of the Congo or an adjoining country" could not be characterized as factual and uncontroversial  The court said that "[t]he label '[not] conflict free' is a metaphor that conveys moral responsibility for the Congo war        An issuer, including an issuer who condemns the atrocities of the Congo war in the strongest terms, may disagree with that assessment of its moral responsibility        By compelling an issuer to confess blood on its hands, the statute interferes with that exercise of the freedom of speech under the First Amendment " Similarly, the Seventh Circuit, in a 2006 opinion, held that disclosure requirements in a state law regulating sexually explicit video games were not "factual and uncontroversial" as required for Zauderer to apply  In relevant part, the law required "video game retailers to place a four square-inch label with the numerals '18' on any 'sexually explicit' video game," and to post signs and provide brochures "explaining the video game rating system " The court held first that the sticker "ultimately communicates a subjective and highly controversial message—that the game's content is sexually explicit " Similarly, the panel concluded that "the message" communicated by the signs and brochures was "neither purely factual nor uncontroversial" because it was "intended to communicate that any video games in the store can be properly judged pursuant to the standards described in the       ratings " As mentioned above, some courts have treated "factual" and "uncontroversial" as two distinct requirements  But at times, courts have struggled to define "controversial," standing alone  The D C  Circuit has suggested that controversial must mean that a disclosure "communicates a message that is controversial for some reason other than dispute about simple factual accuracy " One trial court interpreting a decision of the Second Circuit suggested that "it is the nature of the regulation of compelled speech that controls, not the nature of the legislative debate that gave rise to its enactment " That court then noted that other courts had equated controversial messages with disclosures that are "opinion-based " Courts have disagreed about whether a disclosure may be characterized as "controversial" because it is "inflammatory" or "evoke[s] an emotional response " In NIFLA , the Supreme Court struck down the licensed notice after noting that the required disclosures related to "abortion, anything but an 'uncontroversial' topic," although it did not further explain when a topic is "uncontroversial" for purposes of Zauderer  Second, to be eligible for review under Zauderer , a commercial disclosure requirement must be related to the services provided by the speaker  In Zauderer itself, the Court had noted that the disputed disclosure required the attorney to provide information in his advertising "about the terms under which his services will be available " By and large, lower courts, at least prior to NIFLA, had not treated this relationship to the speaker's services as a distinct requirement  The Court in NIFLA , however, said that this was a necessary prerequisite for Zauderer review and held in that case that the notice requirement for licensed clinics at issue was not "relate[d] to the services that licensed clinics provide" because it instead provided information "about state -sponsored services " Judges have disagreed on whether there exists a third requirement for Zauderer review  In Zauderer itself, the Supreme Court noted that the disclosure requirements at issue in that case were intended to "prevent[] deception of customers " Further, when applying Zauderer review to the bankruptcy-related disclosures at issue in Milavetz , the Court stated that the disclosures were "intended to combat the problem of inherently misleading commercial advertisements " Perhaps most notably, in United Foods , the Court explained its decision not to apply Zauderer by noting that there was "no suggestion" that the compelled subsidies at issue in that case were "somehow necessary to make voluntary advertisements nonmisleading for consumers " The Supreme Court's decisions applying Zauderer have thus suggested that one factor in deciding whether to apply this "reasonably related" review is whether the targeted commercial speech is misleading, or whether the state's interest in requiring the disclosure is to prevent "consumer confusion or deception " Nonetheless, the Court has not squarely held that this is a necessary condition for Zauderer review, and several lower courts have rejected this position  The D C  Circuit concluded that Zauderer 's justification characterizing "the speaker's interest in opposing forced disclosure of such information as 'minimal' seems inherently applicable beyond" the state's "interest in remedying deception " The Second Circuit has also held that Zauderer review applies more broadly  In rejecting a litigant's argument that the Supreme Court's decision in United Foods limited Zauderer only to laws intended to prevent consumer deception, the Second Circuit said that United Foods "simply distinguishes Zauderer on the basis that the compelled speech in Zauderer was necessary to prevent deception of consumers; it does not provide that all other disclosure requirements are subject to heightened scrutiny " If a commercial disclosure requirement involves only "purely factual and uncontroversial information" about the goods or services being sold, and is therefore eligible for review under Zauderer , then it will be constitutional so long as the disclosure requirement is "reasonably related" to the government's interest  This reasonableness review is relatively lenient, especially as compared with the standards that would otherwise apply to compelled speech  But, as emphasized in NIFLA , even under Zauderer , "unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech " Lower courts had previously come to different conclusions regarding whether "unjustified or unduly burdensome" presented an additional inquiry, to be conducted separately from the reasonableness inquiry otherwise prescribed by Zauderer , or whether instead this inquiry was subsumed by the "reasonably related" inquiry  NIFLA did not entirely resolve this issue, although it did frame its analysis using the "unjustified or unduly burdensome" language rather than the language of rational basis review  In Zauderer , the Supreme Court upheld the contingent fee disclosure after concluding that the requirement was "reasonably related to the State's interest in preventing deception of consumers " But as noted above, lower courts have largely concluded that Zauderer 's reasonableness review may govern the analysis even when the government asserts an interest other than preventing consumer deception  The D C  Circuit has, so far, largely declined to articulate a clear standard for "what type of interest might suffice " That court did conclude in one case that where the government's interest was "substantial under Central Hudson 's standard," that would qualify as a sufficient interest under Zauderer   Perhaps taking a different approach, in a case upholding a disclosure requirement under Zauderer , the Second Circuit described the state's interest as "legitimate and significant " Other than "the interest in correcting misleading or confusing commercial speech," the federal courts of appeals have upheld commercial disclosure requirements where the government asserted interests in food safety, preventing obesity, "protecting human health and the environment from mercury poisoning," and in protecting health benefit providers "from questionable       business practices " By contrast, the Second Circuit held in International Dairy Foods Association v  Amestoy that "consumer curiosity alone is not a strong enough state interest to sustain the compulsion of even an accurate, factual statement " In NIFLA , the Supreme Court indicated that under Zauderer , the government must assert an interest that is "more than 'purely hypothetical '" As discussed above, the State of California's justification for the notice requiring unlicensed clinics to disclose that they were unlicensed was to "ensur[e] that pregnant women in California know when they are getting medical care from licensed professionals " The Court concluded that the state had "point[ed] to nothing suggesting that pregnant women do not already know that the covered facilities are staffed by unlicensed medical professionals " NIFLA 's requirement that the government provide evidence supporting an asserted interest differs from the Court's approach in Zauderer itself and in Milavetz   In both Zauderer and Milavetz , the Court rejected arguments that the government had failed to present sufficient evidence to support its interest in the disclosure requirement, concluding that in both of those cases, "the possibility of deception" in the regulated advertisements was "self-evident " Although the standard is not entirely clear, it is possible that in future cases the Court could conclude again that a particular advertisement is so obviously deceptive that the government does not need to submit significant evidence proving that the advertisements are misleading  If the government has asserted a sufficient interest, then under Zauderer , it needs to show only that the disputed disclosure requirement is "reasonably related" to that interest  Describing the Supreme Court's decision in Zauderer , the D C  Circuit has said that the "evidentiary parsing" required by more rigorous First Amendment tests "is hardly necessary when the government uses a disclosure mandate to achieve a goal of informing consumers about a particular product trait, assuming of course that the reason for informing consumers qualifies as an adequate interest " That court further elaborated that "[t]he self-evident tendency of a disclosure mandate to assure that recipients get the mandated information may in part explain why, where that is the goal, many such mandates have persisted for decades without anyone questioning their constitutionality " Similarly, the Second Circuit has observed in one case that "while the First Amendment precludes the government from restricting commercial speech without showing that 'the harms it recites are real and that its restriction will in fact alleviate them to a material degree,'" the First Amendment "does not demand 'evidence or empirical data' to demonstrate the rationality of mandated disclosures in the commercial context " Notwithstanding the suggestion that little evidence is required to show that a disclosure requirement is reasonably related to an appropriate government interest, lower courts have often relied on the government's evidence supporting the disputed requirement when they uphold the provision  This showing may be easiest where the government asserts an interest in preventing misleading speech, given "the self-evident tendency of a disclosure mandate to assure that recipients get the mandated information " Additionally, courts have sometimes held that commercial disclosure requirements fail even this lenient test for rationality, particularly where the government has asserted an interest other than preventing consumer confusion  For example, in National Association of Manufacturers v  SEC , the D C  Circuit held that a provision requiring companies to disclose whether their products were "conflict free" violated the First Amendment  In defending this rule, the government asserted an interest in "ameliorat[ing] the humanitarian crisis in the [Democratic Republic of the Congo (DRC)] " In the court's view, however, the government had failed to demonstrate that its measure would achieve this interest  The D C  Circuit observed that the government had "offered little substance beyond" statements by political officials to support "the effectiveness of the measure " The court assumed that the government's theory "must be that the forced disclosure regime will [lead to boycotts that] decrease the revenue of armed groups in the DRC and their loss of revenue will end or at least diminish the humanitarian crisis there " But in the view of the court, this theory could not justify the regulation, as the idea was "entirely unproven and rest[ed] on pure speculation " To take another example, the Third Circuit struck down a commercial disclosure requirement concerning attorney advertising in Dwyer v  Cappell   In that case, an attorney challenged a state regulation that prohibited attorneys from using quotations from judicial opinions in their advertising unless they presented "the full text" of those opinions  The state argued that such quotations were "inherently misleading because laypersons       would understand them to be judicial endorsements " The court, however, said that even assuming "that excerpts of judicial opinions are potentially misleading to some persons," the state had failed "to explain how [an attorney's] providing a complete judicial opinion somehow dispels this assumed threat of deception " The court reasoned that "providing a full judicial opinion does not reveal to a potential client that an excerpt of the same opinion is not an endorsement " Additionally, the court held that the disputed requirement was "unduly burdensome," as it "effectively rules out the possibility that [an attorney] can advertise with even an accurately quoted excerpt of a judicial statement about his abilities " And in the view of the Third Circuit, "that type of restriction—an outright ban on advertising with judicial excerpts—would properly be analyzed under the heightened Central Hudson standard of scrutiny " As Dwyer suggests, courts may strike down disclosure requirements under Zauderer if the requirement is "unduly burdensome " In NIFLA , the Supreme Court held that the unlicensed notice was likely unconstitutional because it "unduly burden[ed] protected speech," noting that it applied to all advertisements for these licensed facilities, regardless of their content  In particular, the majority opinion highlighted one hypothetical discussed at oral argument, noting that "a billboard for an unlicensed facility that says 'Choose Life' would have to surround that two-word statement with a 29-word statement from the government, in as many as 13 different languages " In this instance, the Court said, the notice would "drown[] out the facility's own message," and therefore be unduly burdensome  If a commercial disclosure requirement is not a factual and uncontroversial disclosure related to the speaker's goods or services under Zauderer , courts will likely apply a heightened standard of review  Under prevailing Supreme Court precedent, if a provision does not qualify for Zauderer 's reasonableness review, a court may review the challenged regulation under Central Hudson   As discussed above, Central Hudson established the general standard of review for government restrictions on commercial speech  The Supreme Court described "a four-part analysis:" At the outset, we must determine whether the expression is protected by the First Amendment  For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading  Next, we ask whether the asserted governmental interest is substantial  If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest  The Court has described the Central Hudson test as "intermediate" scrutiny  If a disclosure requirement affects commercial speech but does not qualify for Zauderer review, courts have generally held that Central Hudson 's intermediate scrutiny applies  However, courts have sometimes suggested that some higher standard of review, more stringent than Central Hudson 's intermediate scrutiny, should apply to commercial disclosure requirements that do not qualify for review under Zauderer   Some lower court judges have concluded that because such disclosures compel particular speech and are by definition not content-neutral, they should be evaluated under strict scrutiny  In contrast to Central Hudson review, which requires the government to show that a law is "not more extensive than is necessary to serve" a "substantial" interest, strict scrutiny "requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest " The Supreme Court has suggested—but not squarely held—that at least some types of commercial disclosure requirements might be subject to some form of scrutiny more strict than Central Hudson   In NIFLA , the Supreme Court considered the constitutionality of state provisions requiring crisis pregnancy centers to make certain disclosures to clients and in their advertising  The Court suggested that the provision requiring licensed facilities to disseminate notices about state-provided services might be subject to strict scrutiny as a content-based regulation of speech, but concluded that it did not need to resolve that question because the notice could not "survive even intermediate scrutiny " Significantly, however, the NIFLA Court never described the licensed notice as involving commercial speech  In the decision below, the Ninth Circuit had held that the notice should not be subject to strict scrutiny because it regulated "professional speech " That court, like other federal courts of appeals, had recognized "speech that occurs between professionals and their clients in the context of their professional relationship" "as a separate category of speech that is subject to different rules " The Ninth Circuit had concluded that speech that was part of the practice of a profession could be regulated by the state, subject only to intermediate scrutiny  The Court rejected this idea, saying that the First Amendment does not encompass a tradition of lower scrutiny "for a category called 'professional speech '" Ultimately, the Court said that it saw no "persuasive reason" to treat "professional speech as a unique category that is exempt from ordinary First Amendment principles " To the extent that "professional speech" could be seen to overlap with commercial speech, this sentence could be read to suggest that commercial speech should also be subject to "ordinary First Amendment principles " This suggestion would seem to conflict with prior cases saying that commercial speech occupies a "subordinate position in the scale of First Amendment values " Although the NIFLA Court implicitly suggested that disclosure requirements for professionals might constitute commercial speech by evaluating the FACT Act's requirements under Zauderer and Central Hudson , it never expressly clarified whether "professional speech" overlaps with commercial speech  Because the FACT Act's requirements applied outside of the advertising context, it may be open to some debate whether these licensed notices involved commercial speech  The unlicensed notice challenged in NIFLA was required to be included in advertising, and advertisements are "classic examples of commercial speech " But the unlicensed notice was also required to be posted on-site, and the state required licensed facilities to post disclosures on-site or to otherwise distribute the notice to clients directly  Further, in a similar context, at least one federal court of appeals concluded that a Baltimore ordinance requiring certain pregnancy centers to make specified disclosures regulated noncommercial speech  That court said the pregnancy centers were not motivated by economic interest or proposing a commercial transaction, but were instead "provid[ing] free information about pregnancy, abortion, and birth control as informed by a religious and political belief " If the licensed disclosures in NIFLA did not regulate commercial speech, then it would be unsurprising that the Court would consider applying strict scrutiny rather than Central Hudson   Others, however, have pointed out that crisis pregnancy centers, even if they do not charge fees, operate "in a marketplace where other providers generally charge fees," and argued that these centers "are engaged in commercial activity by providing physical and mental health services to pregnant women " And more generally, some have pointed out the similarities between "professional" and commercial speech  The fact that the NIFLA Court did not directly address the relationship between professional and commercial speech may suggest that heightened scrutiny may be necessary with respect to some commercial disclosure requirements  Specifically, the Court did not cite the commercial speech doctrine as "a persuasive reason for treating professional speech as a unique category that is exempt from ordinary First Amendment principles " At least one commentator has argued that the Court's failure to mention Central Hudson —"not even to dismiss it as       another inapposite exception to Reed 's general rule [of strict scrutiny]"—may suggest that the Court is seeking to limit Central Hudson 's holding that commercial speech may be more freely regulated than other speech under the First Amendment  Although NIFLA may not have expressly altered the framework used to evaluate commercial disclosure requirements, it may nonetheless signal that the Supreme Court will view them with more skepticism in the future  The majority opinion, authored by Justice Thomas, emphasized that "[t]he dangers associated with content-based regulations of speech are also present in the context of professional speech " Even if "professional speech" is not coterminous with "commercial speech," this statement does seem to suggest that the Court believes content neutrality principles are relevant in the commercial sphere  In dissent, Justice Breyer, viewing the majority opinion as adopting such a view, argued that the majority's approach, "if taken literally, could radically change prior law, perhaps placing much securities law or consumer protection law at constitutional risk " He pointed out that "[v]irtually every disclosure law could be considered 'content based,' for virtually every disclosure law requires individuals 'to speak a particular message '" In response to Justice Breyer, the NIFLA majority stated that it did not "question the legality of health and safety warnings long considered permissible, or purely factual and uncontroversial disclosures about commercial products " This view echoed the Court's prior statement that "[p]urely commercial speech is more susceptible to compelled disclosure requirements " Following the Court's 2010 decision in Reed , in which the Court articulated a more "precise test to determine whether speech regulations are content based," many lower courts had rejected the idea that content-based requirements affecting only commercial speech should be subject to strict scrutiny, even if they otherwise discriminated based on content under Reed   But because NIFLA appeared to suggest that content neutrality is relevant in the commercial sphere, it seems reasonable to think that lower courts may now be more likely to conclude that strict scrutiny could apply to content-based commercial disclosure requirements  This would be consistent with what some commentators have described as the Court's increasingly heightened scrutiny of restrictions on commercial speech  For now, though, Central Hudson generally continues to govern the analysis of government actions affecting lawful, non-misleading commercial speech, including commercial disclosure requirements that do not qualify for Zauderer review  As discussed, Central Hudson requires that the government prove that its interest is "substantial," and that the regulation "directly advances" that interest and is "not more extensive than is necessary to serve that interest " Government regulations are more likely to fail this more rigorous standard than the Zauderer reasonableness standard, often because a court believes there is some less restrictive means available for the government to achieve its goals  Courts will require more "evidence of a measure's effectiveness" under Central Hudson , as compared to Zauderer   However, Central Hudson is more forgiving than strict scrutiny, and courts do uphold government actions infringing on commercial speech under Central Hudson   For example, in Spirit Airlines v  Department of Transportation , the D C  Circuit concluded that a federal regulation governing the way that airlines must display flight prices "satisfie[d]       the Central Hudson test " In the court's view, "[t]he government interest—ensuring the accuracy of commercial information in the marketplace—[was] clearly and directly advanced by a regulation requiring that the total, final price be the most prominent" price displayed  And the regulation was "reasonably tailored to accomplish that end" because the rule "simply regulate[d] the manner of disclosure " Government actions are unlikely to be upheld if a court applies strict scrutiny  Nonetheless, some scholars have argued that many disclosure requirements might survive strict scrutiny, and the Supreme Court has, in rare instances, said that the government may "directly regulate speech to address extraordinary problems, where its regulations are appropriately tailored to resolve those problems without imposing an unnecessarily great restriction on speech " It is possible that a court could hold that the government has a compelling interest in protecting consumers, for example, and that particular disclosures are narrowly tailored to meet that interest  The Supreme Court has long emphasized that the government can regulate commercial activity "deemed harmful to the public " But a court would likely require more proof from the government under strict scrutiny and likely would not simply accept the government's allegations as "self-evident" under such review  Congress has enacted a wide variety of disclosure requirements, many of which arguably compel commercial speech  For example, the Securities and Exchange Act of 1934 sets out disclosure requirements for registering securities  Federal law, among a host of other food labeling requirements, requires "bioengineered food" to bear a label disclosing that the food is bioengineered  Direct-to-consumer advertisements for prescription drugs must contain a series of disclosures, including the drug's name and side effects  Certain appliances must contain labels disclosing information about their energy efficiency  Bills in the 115 th and 116 th Congresses have proposed additional disclosure requirements, including a bill that would require large online platforms to disclose any studies conducted on users for the purposes of promoting engagement, and a bill that would require public companies to disclose climate-related risks  Recent Supreme Court precedent suggests that the Court is more closely reviewing commercial disclosure requirements, perhaps moving away from a more deferential treatment of such provisions  In NIFLA , the Court held that a disclosure requirement was likely unconstitutional under Zauderer because the government had not presented sufficient evidence to justify the measure —even though in other cases, the Court had rejected similar challenges to commercial disclosure requirements, saying that the government did not need to present more evidence because the harm it sought to remedy was "self-evident " Further, the Court has recently suggested that if a law regulating commercial speech discriminates on the basis of content—as all disclosure requirements seemingly do —then this content discrimination might subject the law to heightened scrutiny  If the Court further embraces this view, it could be a marked departure from its opinions holding that commercial speech could be regulated on the basis of its content, so long as the government's justification for the content discrimination were sufficiently related to its legitimate interests in regulating the speech  In concurring and dissenting opinions that have been joined by other Justices, Justice Breyer has argued that insofar as the Court's recent decisions suggest that commercial disclosure requirements should be subject to heightened scrutiny, they are inconsistent with prior case law and are not a proper application of the First Amendment  The Supreme Court said in NIFLA that it was "not question[ing] the legality of health and safety warnings long considered permissible, or purely factual and uncontroversial disclosures about commercial products " And lower courts have frequently upheld commercial disclosure requirements, perhaps suggesting that disclosures of the kind cited by Justice Breyer are not in danger of wholesale invalidation under the First Amendment  However, the majority opinion in NIFLA did not clarify what kind of disclosures it would consider permissible, and its opinion made clear that disclosure requirements should be scrutinized in light of the speakers they cover and the burdens they pose  Moreover, although the NIFLA Court said that it was not questioning these disclosures' "legality," it left open the possibility that these disclosure should nonetheless be subject to heightened scrutiny  This statement may mean only that the Court believes that many commercial disclosure requirements would meet a higher standard of scrutiny  At least one federal appellate court seems to have taken NIFLA as a signal that lower courts should more closely scrutinize commercial disclosure requirements  In American Beverage Association v  City & County of San Francisco , the Ninth Circuit, sitting en banc , relied on NIFLA to reverse a prior decision that had upheld an ordinance requiring "health warnings on advertisements for certain sugar-sweetened beverages " While a panel of judges had previously concluded that the disclosure requirement was constitutional under Zauderer , the full Ninth Circuit, reviewing that decision, said: " NIFLA requires us to reexamine how we approach a First Amendment claim concerning compelled speech " Namely, the court held that, in light of NIFLA , the health warnings were likely unjustified and unduly burdensome under Zauderer , noting that the regulation required the warnings to "occupy at least 20% of those products' labels or advertisements"—but that the record showed that "a smaller warning—half the size—would accomplish [the government's] stated goals " As such, the court held that the warnings violated the First Amendment "by chilling protected speech " Accordingly, when Congress and federal agencies consider adopting new commercial disclosure requirements, or reauthorizing old ones, it may be wise to develop a record with more evidence demonstrating a need for the regulation  Under any level of scrutiny, courts will examine the government's asserted purpose for the legislation, as well as how closely tailored the disclosure requirement is to achieve that purpose  Under Zauderer , particularly in light of NIFLA , courts may ask for evidence to support the government's claim that the regulated speech is misleading or that the government has some other interest in regulating that speech, and will likely scrutinize the disclosure requirement to make sure it is not unduly burdensome  Under intermediate scrutiny or strict scrutiny, a court may also ask whether the government considered alternative policies that would be less restrictive of speech, examining more closely the government's justifications for choosing a disclosure requirement 

ground_truth: Title IX of the Education Amendments of 1972 (Title IX) provides an avenue of legal relief for victims of sexual abuse and harassment at educational institutions. It bars discrimination "on the basis of sex" in an educational program or activity receiving federal funding. Although Title IX makes no explicit reference to sexual harassment or abuse, the Supreme Court and federal agencies have determined that such conduct can sometimes constitute discrimination in violation of the statute; educational institutions in some circumstances can be held responsible when a teacher sexually harasses a student or when one student harasses another. Title IX is mainly enforced (1) through private rights of action brought directly against schools by or on behalf of students subjected to sexual misconduct; and (2) by federal agencies that provide funding to educational programs. To establish liability in a private right of action, a party seeking damages for a Title IX violation must satisfy the standards set forth by the Supreme Court in Gebser v. Lago Vista Independent School District, decided in 1998, and Davis Next Friend LaShonda D. v. Monroe County Board of Education, decided the next year. Gebser provides that when a teacher commits harassment against a student, a school district is liable only when it has actual knowledge of allegations by an "appropriate person," and so deficiently responds to those allegations that its response amounts to deliberate indifference to the discrimination. Davis instructs that, besides showing actual knowledge by an appropriate person and deliberate indifference, a plaintiff suing for damages for sexual harassment committed by a student must show that the conduct was "so severe, pervasive, and objectively offensive" that it denied the victim equal access to educational opportunities or benefits. Taken together, the Supreme Court's decisions set forth a high threshold for a private party seeking damages against an educational institution based on its response to sexual harassment. In turn, federal appellate courts have differed in how to apply the standards set in Gebser and Davis, diverging on the nature and amount of evidence sufficient to support a claim. In each of the last several presidential administrations, the Department of Education (ED) issued a number of guidance documents that instruct schools on their responsibilities under Title IX when addressing allegations of sexual harassment. These documents—while sometimes subject to change—generally reflected a different standard than the Supreme Court case law addressing private rights of action for damages for sexual abuse or harassment (the Court in Davis acknowledged that the threshold for liability in a private right of action could be higher than the standard imposed in the administrative enforcement context). Those guidance documents had, among other things, established that sometimes a school could be held responsible for instances of sexual harassment by a teacher, irrespective of actual notice; and schools could be held responsible for student-on-student harassment if a "responsible employee" knew or should have known of the harassment (constructive notice). ED's previous guidance also instructed educational institutions that they sometimes could be responsible for responding to incidents of sexual harassment occurring off campus. ED also cautioned schools on the use of mediation to resolve allegations of sexual harassment. With regard to the procedures used by schools to resolve sexual harassment allegations, ED informed schools that they must use the preponderance of the evidence standard to establish culpability, and the agency strongly discouraged schools from allowing parties in a hearing to personally cross-examine one another. In response to guidance from ED, as well as increased oversight from the department's Office for Civil Rights (OCR) between 2011 and 2016, schools developed several procedures to ensure that their responses to allegations of sexual harassment and assault complied with Title IX. A number of students faced with disciplinary action by public universities raised constitutional challenges to the Title IX procedures used to find them responsible for sexual misconduct, arguing that universities violated the Due Process Clause in handling their case. ED issued a notice of proposed rulemaking in late 2018, after revoking some of its previous guidance to schools in 2017. The proposed regulations would, in several ways, tether the administrative requirements for schools to the standard set by the Supreme Court in Gebser and Davis. In doing so, the proposed regulations would depart from the standards set by ED in previous guidance documents (some of which have since been rescinded). The new regulations would require "actual notice," rather than constructive notice, of harassment by an education institution to trigger a school's Title IX responsibilities, and provide that a school's response to allegations of sexual harassment will violate Title IX only if it amounts to deliberate indifference. In addition, the new regulations would more narrowly define what conduct qualifies as sexual harassment under Title IX, and also impose new procedural requirements, which appear to reflect due process concerns, when schools investigate sexual harassment or assault allegations and make determinations of culpability.