1 

Note: The official version of this document is the document published in the Federal 

Register. This document has been sent to the Office of the Federal Register but has 

not yet been scheduled for publication.

4000-01-U 

DEPARTMENT OF EDUCATION

34 CFR Part 106 

RIN 1870–AA14

[Docket ID ED-2018-OCR-0064] 

Title IX of the Education Amendments of 1972

AGENCY: Office for Civil Rights, Department of Education. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Secretary of Education proposes to amend regulations implementing 

Title IX of the Education Amendments of 1972 (Title IX). The proposed regulations would 

clarify and modify Title IX regulatory requirements pertaining to the availability of 

remedies for violations, the effect of Constitutional protections, the designation of a 

coordinator to address sex discrimination issues, the dissemination of a nondiscrimination 

policy, the adoption of grievance procedures, and the process to claim a religious 

exemption. The proposed regulations would also specify how recipient schools and 

institutions covered by Title IX (hereinafter collectively referred to as recipients or schools) 

must respond to incidents of sexual harassment consistent with Title IX’s

Archived Information
2 

prohibition against sex discrimination. The proposed regulations are intended to promote 

the purpose of Title IX by requiring recipients to address sexual harassment, assisting and 

protecting victims of sexual harassment and ensuring that due process protections are in 

place for individuals accused of sexual harassment.

DATES: We must receive your comments on or before [INSERT DATE 60 DAYS AFTER 

PUBLICATION IN THE FEDERAL REGISTER].

ADDRESSES: Submit your comments through the Federal eRulemaking Portal or via 

postal mail, commercial delivery, or hand delivery. We will not accept comments by fax or 

by e-mail, or comments submitted after the comment period closes. To ensure that we do 

not receive duplicate copies, please submit your comments only once. Additionally, please 

include the Docket ID at the top of your comments. 

If you are submitting comments electronically, we strongly encourage you to submit any 

comments or attachments in Microsoft Word format. If you must submit a comment in 

Adobe Portable Document Format (PDF), we strongly encourage you to convert the PDF to 

“print-to-PDF” format, or to use some other commonly-used searchable text format. Please 

do not submit the PDF in a scanned format. Using a print-to-PDF format allows the U.S. 

Department of Education (the Department) to electronically search and copy certain 

portions of your submissions. 

 Federal eRulemaking Portal: Go to www.regulations.gov to submit your

comments electronically. Information on using Regulations.gov, including 
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instructions for finding a rule on the site and submitting comments, is available on 

the site under “How to use Regulations.gov” in the Help section. 

 Postal Mail, Commercial Delivery, or Hand Delivery: 

The Department strongly encourages commenters to submit their comments electronically. 

If, however, you mail or deliver your comments about these proposed regulations, address 

them to Brittany Bull, U.S. Department of Education, 400 Maryland Avenue S.W., Room 

6E310, Washington, D.C. 20202. Telephone: (202) 453-7100. 

Privacy Note: The Department’s policy is to make all comments received from members of 

the public available for public viewing in their entirety on the Federal eRulemaking Portal 

at www.regulations.gov. Therefore, commenters should be careful to include in 

their comments only information that they wish to make publicly available.

FOR FURTHER INFORMATION CONTACT: Brittany Bull, U.S. Department of 

Education, 400 Maryland Avenue S.W., Room 6E310, Washington, D.C. 20202. 

Telephone: (202) 453-7100. You may also email your questions to 

TitleIXNPRM@ed.gov, but, as described above, comments must be submitted via the 

Federal eRulemaking Portal, postal mail, commercial delivery, or hand delivery.

If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), 

call the Federal Relay Service (FRS), toll free, at 1-800-877-8339. 

SUPPLEMENTARY INFORMATION:

Executive Summary
4 

Purpose of this regulatory action 

Based on its extensive review of the critical issues addressed in this rulemaking, the 

Department has determined that current regulations and guidance do not provide 

appropriate standards for how recipients must respond to incidents of sexual harassment. To 

address this concern, we propose regulations addressing sexual harassment under Title IX 

to better align the Department’s regulations with the text and purpose of Title IX and 

Supreme Court precedent and other case law. This will help to ensure that recipients 

understand their legal obligations including what conduct is actionable as sexual harassment 

under Title IX, the conditions that activate a mandatory response by the recipient, and 

particular requirements that such a response must meet so that recipients protect the rights 

of their students to access education free from sex discrimination. 

In addition to providing recipients with clear legal obligations, the transparency of the 

proposed regulations will help empower students to hold their schools accountable for 

failure to meet those obligations. Under the proposed regulations, complainants reporting 

sexual harassment will have greater control over the process. The Department recognizes 

that every situation is unique and that individuals react to sexual harassment differently; 

thus, the proposed regulations help ensure that schools provide complainants with clear 

options and honor the wishes of the reporting individual about how to respond to the 

situation, including increased access to supportive measures. Where a reporting 

complainant elects to file a formal complaint triggering the school’s grievance process, the 

proposed regulations require the school’s investigation to be fair and impartial, applying 

mandatory procedural checks and balances, thus producing more reliable factual 
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outcomes, with the goal of encouraging more students to turn to their schools for support in 

the wake of sexual harassment. 

Summary of the Major Provisions of This Regulatory Action: 

With regard to sexual harassment, the proposed regulations would: 

 Define the conduct constituting sexual harassment for Title IX purposes; 

 Specify the conditions that activate a recipient’s obligation to respond to 

allegations of sexual harassment and impose a general standard for the sufficiency 

of a recipient’s response; 

 Specify situations that require a recipient to initiate its grievance procedures; and

 Establish procedural safeguards that must be incorporated into a recipient’s 

grievance procedures to ensure a fair and reliable factual determination when a 

recipient investigates and adjudicates a sexual harassment complaint.

In addition, the proposed regulations would: clarify that in responding to any claim of sex 

discrimination under Title IX, recipients are not required to deprive an individual of rights 

that would be otherwise guaranteed under the U.S. Constitution; prohibit the Department’s 

Office for Civil Rights (OCR) from requiring a recipient to pay money damages as a 

remedy for a violation of any Title IX regulation; and eliminate the requirement that 

religious institutions submit a written statement to qualify for the Title IX religious 

exemption. 

Costs and Benefits 
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As further detailed in the Regulatory Impact Analysis, we estimate that the total monetary 

cost savings of these regulations over ten years would be in the range of $286.4 million to 

$367.7 million. In addition, the major benefits of these proposed regulations, taken as a 

whole, include achieving the protective purposes of Title IX via fair, reliable procedures 

that provide adequate due process protections for those involved in grievance processes. 

Invitation to Comment: We invite you to submit comments regarding these proposed 

regulations and directed questions. To ensure that your comments have the maximum effect 

on developing the final regulations, you should identify clearly the 

specific section or sections of the proposed regulations that each of your comments 

addresses, and arrange your comments in the same order as the proposed regulations. 

We invite you to assist us in complying with the specific requirements of Executive Orders 

12866 and 13563 (explained further below), and their overall goal of reducing the 

regulatory burden that might result from these proposed regulations. Please let us know of 

any further ways that we may reduce potential costs or increase potential benefits, while 

preserving the effective and efficient administration of the Department’s programs and 

activities.

During and after the comment period, you may inspect all public comments about these 

proposed regulations by accessing Regulations.gov. You also may inspect the comments in 

person at 400 Maryland Avenue S.W., Room 6E310, Washington, D.C., between the hours 

of 8:30 a.m. and 4:00 p.m., Eastern Time, Monday through Friday of 
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each week, except federal holidays. Please contact the person listed under FOR 

FURTHER INFORMATION CONTACT.

Assistance to Individuals with Disabilities in Reviewing the Rulemaking Record: Upon 

request, we will provide an appropriate accommodation or auxiliary aid to an individual 

with a disability who needs assistance to review the comments or other documents in the 

public rulemaking record for these proposed regulations. If you want to schedule an 

appointment for this type of accommodation or auxiliary aid, please contact the person 

listed under FOR FURTHER INFORMATION CONTACT.

Background 

Title IX prohibits discrimination on the basis of sex in education programs and activities 

that receive federal financial assistance. See 20 U.S.C. 1681(a). Existing Title IX 

regulations contain specific provisions regarding (i) the Assistant Secretary’s authority to 

determine remedies necessary to overcome effects of discrimination (34 CFR 106.3), (ii) 

the effect of other requirements (34 CFR 106.6), (iii) designation of a responsible employee 

(34 CFR 106.8(a)), (iv) adoption of grievance procedures (34 CFR 106.8(b)), 

(v) dissemination of policy (34 CFR 106.9), and (vi) exemption for religious schools (34 

CFR 106.12). For reasons described in this preamble, the Secretary proposes to amend the 

Title IX regulations at 34 CFR 106.3, 106.6, 106.8, 106.9, and 106.12, as well as add new 

sections 106.44 and 106.45. 
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The Department’s predecessor, the Department of Health, Education and Welfare (HEW), 

promulgated implementing regulations under Title IX effective in 1975.1 Among other 

things, those regulations require recipients to create and disseminate a policy of nondiscrimination based on sex, designate a Title IX Coordinator, and adopt and publish 

grievance procedures providing for prompt and equitable resolution of complaints that a 

school is discriminating based on sex.

When the current regulations were issued in 1975, the federal courts had not yet addressed 

recipients’ Title IX obligations to address sexual harassment as a form of sex 

discrimination. The Supreme Court subsequently elaborated on the scope of Title IX, ruling 

that money damages are available for private actions under Title IX based on sexual 

harassment by a teacher against a student, Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60 

(1992); that such damages may only be recovered under Title IX when a school official 

with authority to institute corrective measures has actual notice of the harassment but is

deliberately indifferent to it, Gebser v. Lago Vista Ind. Sch. Dist., 524 

U.S. 274 (1998); and that a school can likewise be liable under Title IX based on sexual 

harassment by a student against a student but only if “the recipient is deliberately indifferent 

to known acts of student-on-student sexual harassment,” “the harasser is under the school’s 

disciplinary authority,” and “the behavior is so severe, pervasive, and

 

1 40 Fed. Reg. 24128 (June 4, 1975) (codified at 45 CFR pt. 86). In 1980, Congress created the United

States Department of Education. Pub. L. No. 96-88, § 201, 93 Stat. 669, 671 (1979); Exec. Order No. 

12212, 45 Fed. Reg. 29,557 (May 2, 1980). By operation of law, all of HEW’s determinations, rules, and 

regulations continued in effect and all functions of HEW’s Office for Civil Rights, with respect to 

educational programs, were transferred to the Secretary of Education. 20 U.S.C. § 3441(a)(3). The 

regulations implementing Title IX were recodified without substantive change in 34 CFR pt. 106. See 45 

Fed. Reg. 30,802, 30,955–65 (May 9, 1980).
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objectively offensive that it denies its victims the equal access to education that Title IX is 

designed to protect,” Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 647, 652 (1999). 

In the four decades since HEW issued the 1975 rule, no Title IX regulations have been 

promulgated to address sexual harassment as a form of sex discrimination; instead, the 

Department has addressed this subject through a series of guidance documents. See, e.g., 

Sexual Harassment Guidance: Harassment of Students by School Employees, Other 

Students, or Third Parties, 62 Fed. Reg. 12034 (March 13, 1997); Revised Sexual 

Harassment Guidance: Harassment of Students by School Employees, Other Students, or 

Third Parties (January 19, 2001) (2001 Guidance); Dear Colleague Letter on Sexual 

Harassment (January 25, 2006); Dear Colleague Letter: Sexual Violence (issued April 4, 

2011, withdrawn September 22, 2017) (2011 Dear Colleague Letter); Questions and 

Answers on Title IX and Sexual Violence (issued April 29, 2014, withdrawn September 22, 

2017) (2014 Q&A); Questions and Answers on Campus Sexual Misconduct (September 22, 

2017) (2017 Q&A). The decades since the passage of Title IX have revealed that how 

schools address sexual harassment and sexual assault (collectively referred to herein as 

sexual harassment) affects the educational access and opportunities of large numbers of 

students in elementary, secondary, and postsecondary schools across the nation. 

Beginning in mid-2017, the Department started to examine how schools and colleges were 

applying Title IX to sexual harassment under then-applicable guidance. The Department

conducted listening sessions and discussions with stakeholders expressing a 
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variety of positions for and against the status quo, including advocates for survivors of 

sexual violence; advocates for accused students; organizations representing schools and 

colleges; attorneys representing survivors, the accused, and institutions; Title IX 

Coordinators and other school and college administrators; child and sex abuse prosecutors; 

scholars and experts in law, psychology, and neuroscience; and numerous individuals who 

have experienced school-level Title IX proceedings as a complainant or respondent. The 

Department also reviewed information that includes white papers, reports, and 

recommendations issued over the past several years by legal and public policy scholars, 

civil rights groups, and committees of nonpartisan organizations2 as well as books detailing 

 

2 E.g., Jacob Gersen and Jeannie Suk, The Sex Bureaucracy, 104 CALIF. L. REV. 881 (2016); John 

Villasenor, A probabilistic framework for modelling false Title IX ‘convictions’ under the preponderance of 

the evidence standard, 15 LAW, PROBABILITY AND RISK 223, 223–37 (2016), 

https://doi.org/10.1093/lpr/mgw006; Open Letter from Members of the Penn Law School Faculty, Sexual 

Assault Complaints: Protecting Complainants and the Accused Students at Universities, WALL ST. J. 

ONLINE (Feb. 18, 2015), http://online.wsj.com/public/resources/documents/2015_0218_upenn.pdf

(statement of 16 members of the University of Pennsylvania Law School faculty); Rethink Harvard’s 

Sexual Harassment Policy, BOSTON GLOBE (Oct. 15, 2014), https://www.bostonglobe.com/opinion/

2014/10/14/rethink-harvard-sexual-harassment-policy/HFDDiZN7nU2UwuUuWMnqbM/story.html 

(Statement of 28 members of the Harvard Law School faculty); AM. BAR ASSN., ABA CRIMINAL JUSTICE 

SECTION TASK FORCE ON COLLEGE DUE PROCESS RIGHTS AND VICTIM PROTECTIONS: RECOMMENDATIONS 

FOR COLLEGES AND UNIVERSITIES IN RESOLVING ALLEGATIONS OFCAMPUS SEXUALMISCONDUCT (2017),

https://www.americanbar.org/content/dam/aba/publications/ criminaljustice/2017/ABA-Due-Process-TaskForce-Recommendations-and-Report.authcheckdam.pdf; AMERICAN COLLEGE OF TRIAL LAWYERS, TASK 

FORCE ON THE RESPONSE OF UNIVERSITIES AND COLLEGES TO ALLEGATIONS OF SEXUAL VIOLENCE, WHITE

PAPER ON CAMPUS SEXUAL ASSAULT INVESTIGATIONS (2017), https://www.actl.com/docs/defaultsource/default-document-library/position-statements-and-white-papers/

task_force_allegations_of_sexual_violence_white_paper_final.pdf; Elizabeth Bartholet, Nancy Gertner, 

Janet Halley & Jeannie Suk Gersen, Fairness For All Students Under Title IX (Aug. 21, 2017), 

http://nrs.harvard.edu/urn-3:HUL.InstRepos:33789434. See also NEDDA BLACK ET AL., THE NCHERM 

GROUP, LLC, 2017 NCHERM GROUP WHITE PAPER: DUE PROCESS AND THE SEX POLICE (2017),

https://www.ncherm.org/wp-content/uploads/2017/04/TNG-Whitepaper-Final-Electronic-Version.pdf;

SHARYN POTTER ET AL., PREVENTION INNOVATIONS RESEARCH CTR., UNIV. OF NEW HAMPSHIRE, IT’S NOT 

JUST THE WHAT BUT THE HOW: INFORMING STUDENTS ABOUT CAMPUS POLICIES AND RESOURCES (2015),

https://cola.unh.edu/sites/cola.unh.edu/files/departments/Prevention%20Innovations%20Research%20C

ent er/White_Paper_87367_for_web.pdf; Dana Bolger, Gender Violence Costs: Schools’ Financial 

Obligations Under Title IX, 125 YALE L. J. 2106 (2016), 

https://www.yalelawjournal.org/feature/gender-violence-costs-schools-financial-obligations-under-titleix; KATHERINE K. BAKER ET AL., TITLE IX AND THE PREPONDERANCE OF THE EVIDENCE: A WHITE 

PAPER, http://www.feministlawprofessors.com/wp- content/uploads/2016/11/Title-IX-PreponderanceWhite-Paper-signed-11.29.16.pdf (signed by dozens of law professors and scholars); Alexandra 

Brodsky, A Rising Tide: Learning About Fair Disciplinary Process from Title IX, 66 J. OF LEGAL EDUC. 

822 ( 2017), https://jle.aals.org/cgi/viewcontent.cgi?article=1517&context=home.
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case studies of campus Title IX proceedings.3 The Department learned that schools and 

colleges were uncertain about whether the Department’s guidance was or was not legally 

binding. To the extent that guidance was viewed as mandatory, the obligations set forth in 

previous guidance were issued without the benefit of notice and comment that would have 

permitted the public and all stakeholders to comment on the feasibility and effectiveness of 

the guidance. Several of the prescriptions set forth in previous guidance (for example, 

compulsory use by all schools and colleges of the preponderance of the evidence standard 

and prohibition of mediation in Title IX sexual assault cases) generated particular criticism 

and controversy. 

Other criticisms of the previous guidance included that those guidance documents pressured 

schools and colleges to forgo robust due process protections;4 captured too wide a range of 

misconduct, resulting in infringement on academic freedom and free

speech and government regulation of consensual, noncriminal sexual activity;5 and 

 

3 E.g., K.C. JOHNSON AND STUART TAYLOR, JR., CAMPUS RAPE FRENZY, (2017); LAURA KIPNESS, UNWANTED 

ADVANCES ( 2017). See also ANNIE E. CLARK AND ANDREA L. PINO, WE BELIEVE YOU: SURVIVORS OF CAMPUS 

SEXUAL ASSAULT SPEAK OUT (2016); JON KRAKAUER, MISSOULA: RAPE AND THE JUSTICE SYSTEM IN A COLLEGE 

TOWN, (2015). 4 E.g., Open Letter from Members of the Penn Law School Faculty, supra note 2 (“[W]e believe that OCR’s 

approach exerts improper pressure upon universities to adopt procedures that do not afford fundamental fairness.”). 

See also Bartholet et al., supra note 2, at 1 (“In the past six years, under pressure from the previous Administration, 

many colleges and universities all over the country have put in place new rules defining sexual misconduct and new 

procedures for enforcing them. While the Administration’s goals were to provide better protections for women . . . 

the new policies and procedures have created problems of their own, many of them attributable to directives coming 

from [OCR]. Most of these problems involve unfairness to the accused; some involve unfairness to both accuser and 

accused[.] OCR has an obligation to address the unfairness that has resulted from its previous actions and the related

college and university responses”). See also Plummer v. Univ. of Houston, 860 F.3d 767, 777–78 (5th Cir. 2017) 

(Jones, J., dissenting) (The 2011 Dear Colleague Letter “was not adopted according to notice-and-comment 

rulemaking procedures; its extremely broad definition of ‘sexual harassment’ has no counterpart in federal civil

rights case law; and the procedures prescribed for adjudication of sexual misconduct are heavily weighted in favor of 

finding guilt”). 5 E.g., Kipness, supra note 3, at 33 (“The reality is that a set of incomprehensible directives, issued by a branch of the 

federal government, are being wielded in wildly idiosyncratic ways, according to the whims and biases of individual 

Title IX officers operating with no public scrutiny or accountability. Some of them are also all too willing to tread on 

academic and creative freedom as they see fit”). See also Gersen and Suk, supra note 2, at 902–03 (Asserting that 

OCR’s guidance requires schools to regulate student conduct “that is not creating a hostile environment and therefore 

is not sexual harassment and therefore not sex discrimination” and concluding that OCR’s guidance oversteps OCR’s 
12 

removed reasonable options for how schools should structure their grievance processes to 

accommodate each school’s unique pedagogical mission, resources, and educational 

community.6

 

After personally engaging with numerous stakeholders including sexual violence survivors, 

students accused of campus sexual assault, and school and college attorneys and 

administrators, the Secretary of Education delivered a speech in September 20177 in which 

she emphasized the importance of Title IX and the high stakes of sexual misconduct. The 

Secretary identified problems with the current state of Title IX’s application in schools and 

colleges, including overly broad definitions of sexual harassment, lack of notice to the 

parties, lack of consistency regarding both parties’ right to know the evidence relied on by 

the school investigator and right to cross-examine parties and witnesses, and adjudications 

reached by school administrators operating under a federal mandate to apply the lowest 

possible standard of evidence. Secretary DeVos stated that in endeavoring to find a “better 

way forward” that works for all students, “non-negotiable principles” include the right of 

every survivor to be taken seriously and the right of every person accused to know that guilt 

is not predetermined.8 Quoting an open letter from law school faculty,9 Secretary DeVos 

affirmed that “there is nothing inconsistent with a policy that both strongly condemns and 

 

jurisdictional authority); see also Jacob Gersen and Jeannie Suk, The Sex Bureaucracy, THE CHRONICLE OF 

HIGHER EDUC. (Jan. 6, 2017) (https://www.chronicle.com/article/The-College-Sex-Bureaucracy/238805) (OCR’s 

“broad definition” of sexual harassment has “grown to include most voluntary and willing sexual contact”). See also 

Open Letter from Members of the Penn Law School Faculty, supra note 2 (“These cases are likely to involve highly 

disputed facts, and the ‘he said/she said’ conflict is often complicated by the effects of alcohol and drugs”).

6 E.g., Institutional Challenges in Responding to Sexual Violence On College Campuses: Testimony Provided to the 

Subcomm. on Higher Educ. and Workforce Training, 114th Cong. 2, 5–6 (2015) (statement of Dana Scaduto, 

Campus Counsel, Dickinson College, discussing the problems with attempting to impose one-size-fits-all rules that 

fail to account for the wide diversity of institutions of higher education across the 

country),https://edworkforce.house.gov/uploadedfiles/testimony_scaduto.pdf.

7 Betsy DeVos, U.S. Sec’y of Educ., Prepared Remarks on Title IX Enforcement (Sept. 7, 2017), 

https://www.ed.gov/news/speeches/secretary-devos-prepared-remarks-title-ix-enforcement.

8 Id.

9 Open Letter from Members of the Penn Law School Faculty, supra note 2.
13 

punishes sexual misconduct and ensures a fair adjudicatory process.” 

On September 22, 2017, the Department rescinded previous guidance documents that had 

never had the benefit of the public notice and comment process;10 left in place the 2001 

Guidance that had been subjected to public notice and comment (though not rulemaking); 

issued the 2017 Q&A as an interim question and answer document to identify recipients’ 

obligations under Title IX to address sexual harassment as a temporary measure to provide 

necessary information while proceeding with the time-intensive process of notice and 

comment rulemaking; and announced its intent to promulgate regulations under Title IX 

following the rulemaking requirements of the Administrative Procedure Act. The 

Department has continued to hold listening sessions and discussions with stakeholders and 

experts since the rescission of the previous guidance to inform the Department’s proposed 

Title IX regulations including hearing from stakeholders who believe the Department 

should adopt the policies embodied in its previous or current guidance. The need to address

through rulemaking the serious subject of how schools respond to sexual harassment was 

well expressed by sixteen law school faculty at University of Pennsylvania Law School: 

Both the legislative process and notice-and-comment rulemaking are 

transparent, participatory processes that afford the opportunity for input 

from a diversity of viewpoints. That range of views is critical because this 

area implicates competing values, including privacy, safety, the 

functioning of the academic community, and the integrity of the 

educational process for both the victim and the accused, as well as the 

fundamental fairness of the disciplinary process. . . . In addition, 

adherence to a rule-of-law standard would have resulted in procedures 

with greater legitimacy and buy-in from the universities subject to the 

resulting rules.11 

While implementing regulations under Title IX since 1975 have required schools to provide 

for a “prompt and equitable” grievance process to resolve complaints of sex discrimination 

 

10 Specifically, the Department rescinded the 2011 Dear Colleague Letter and the 2014 Q&A. 11 Open Letter from Members of the Penn Law School Faculty, supra note 2.
14 

by the school, the Department’s guidance (both the guidance documents rescinded in 2017 

and the ones remaining) fails to provide the clarity, permanence, and prudence of regulation 

properly informed by public participation in the full rulemaking process. Under the system 

created by the Department’s guidance, hundreds of students have filed complaints with 

OCR alleging their school failed to provide a prompt or equitable process in response to a 

report of sexual harassment,12 and over 200 students have filed lawsuits against colleges 

and universities alleging their school disciplined them for sexual misconduct without 

providing due process protections.13 The Department recognizes that despite wellintentioned efforts by school districts, colleges and universities, advocacy organizations, 

and the Department itself, sexual harassment continues to present serious problems across 

the nation’s campuses. The lack of clear regulatory standards has contributed to processes 

that have not been fair to all parties involved, that have lacked appropriate procedural 

protections, and that have undermined confidence in the reliability of the outcomes of 

investigations of sexual harassment allegations. Such deficiencies harm complainants, 

respondents, and recipients alike. 

The framework created under these proposed regulations stems from the Department’s 

commitment to the rule of law and the Department’s recognition that it has statutory 

authority under 20 U.S.C. 1682 to issue regulations that effectuate Title IX’s provisions – to 

protect all students from sex discrimination (here, in the form of sexual harassment) that 

jeopardizes equal access to education. The proposed regulations would help ensure that the 

 

12 See, e.g., OCR’s website listing currently pending investigations into sex discrimination, sexual harassment, and 

sexual violence: https://www2.ed.gov/about/offices/list/ocr/docs/investigations/open- investigations/index.html.

13 See KC Johnson, Judge Xinis’ Outrage, ACAD. WONDERLAND: COMMENTS ON THE CONTEMP. ACAD. (Apr. 3, 

2018), https://academicwonderland.com/2018/04/03/judge-xinis-outrage/ (over 200 students have sued their colleges 

over due process issues since the 2011 Dear Colleague Letter); KC Johnson, Pomona, the Courts, & Basic Fairness, 

ACAD. WONDERLAND: COMMENTS ON THE CONTEMP. ACAD. (Dec. 8, 2017), 

https://academicwonderland.com/2017/12/08/pomona-the-courts-basic-fairness/ (over 90 colleges have lost due 

process challenges by respondent students since the 2011 Dear Colleague Letter).
15 

obligations imposed on recipients fall within the scope of the civil rights law that Congress 

created and, where persuasive, align with relevant case law. Thus, the proposed regulations 

set forth clear standards that trigger a recipient’s obligation to respond to sexual harassment, 

including defining the conduct that rises to the level of Title IX as conduct serious enough 

to jeopardize a person’s equal access to the recipient’s education program or activity, and 

confining a recipient’s Title IX obligations to sexual harassment of which it has actual 

knowledge. 

Within those clarified standards triggering a recipient’s Title IX obligations, the proposed 

regulations instruct recipients to take certain steps that, in the Department’s judgment based 

on extensive interaction with stakeholders, will foster educational environments where all 

students and employees know that every school must respond appropriately to sexual 

harassment. The proposed regulations provide that complainants experiencing sexual 

harassment may report allegations to their school and expect their school to respond in a 

manner that is not clearly unreasonable and incentivize recipients to give various supportive 

measures to complainants to restore or preserve the individual’s equal access to education

as a way of demonstrating that the recipient’s response to the complainant’s report was not 

deliberately indifferent.

The proposed regulations require schools to investigate and adjudicate formal complaints of 

sexual harassment, and to treat complainants and respondents equally, giving each a 

meaningful opportunity to participate in the investigation and requiring the recipient to 

apply substantive and procedural safeguards that provide a predictable, consistent, impartial 

process for both parties and increase the likelihood that the recipient will reach a 

determination regarding the respondent’s responsibility based on objective standards and 

relevant facts and evidence. By separating a recipient’s obligation to respond to each known 
16 

report of sexual harassment from the recipient’s obligation to investigate formal complaints 

of sexual harassment, the proposed regulations give sexual harassment complainants greater 

confidence to report and expect their school to respond in a meaningful way, while 

requiring that where a complainant also wants a formal investigation to potentially result in

discipline against a respondent, that grievance process will be predictable and fair to both 

parties, resulting in a factually reliable determination about the complainant’s allegations.

Significant Proposed Regulations 

Rather than proceeding sequentially, we group and discuss the proposed amendments under 

the substantive or procedural issues to which they pertain. We do not address proposed 

regulatory changes that are technical or otherwise minor in effect.

In discussing the proposed regulations, we first address how recipients must respond to 

sexual harassment and the procedures for resolving formal complaints of sexual harassment. 

Under the response provisions, we address: adoption of standards from Title IX Supreme 

Court precedent and other case law (proposed section 106.44(a), 106.44(e)(1), and 

106.44(e)(6)); responses required in specific circumstances and accompanying safe harbors 

(proposed section 106.44(b)); emergency removals (proposed section 106.44(c)); and the 

use of administrative leave (proposed section 106.44(d)). We next turn to grievance 

procedures for addressing formal complaints of sexual harassment (proposed section 

106.45) including: clarification that the recipient’s treatment of both complainant and 

respondent could constitute discrimination on the basis of sex (proposed section 106.45(a)); 

general requirements for grievance procedures (proposed section 106.45(b)(1)); notice to 

the parties (proposed section 106.45(b)(2)); and procedures for investigations (proposed 

section 106.45(b)(3)). Also within the grievance procedures section we address evidentiary 

standards for determinations of responsibility (proposed section 106.45(b)(4)(i)); the 
17 

content of such written determinations (proposed section 106.45(b)(4)(ii)); and the timing 

of providing the determinations to the parties (proposed section 106.45(b)(4)(iii)). We next 

address procedures for appeals of written determinations (proposed section 106.45(b)(5)); 

informal resolution procedures (proposed section 106.45(b)(6)); and recordkeeping 

procedures (proposed section 106.45(b)(7)). 

The proposed regulations also seek to clarify existing Title IX regulations in other areas 

beyond sexual harassment. Specifically, we state that OCR shall not deem necessary the 

payment of money damages to remedy violations under part 106 (proposed section 

106.3(a)). We address the intersection among Title IX regulations, constitutional rights, 

student privacy rights, and Title VII of the Civil Rights Act of 1964 (proposed section 

106.6). We clarify the provisions governing the designation of a Title IX Coordinator 

(proposed section 106.8). And we clarify that a recipient that qualifies for the religious 

exemption under Title IX can claim its exemption without seeking written assurance of the 

exemption from the Department (proposed section 106.12). 

I. Recipient’s response to sexual harassment

(Proposed section 106.44) 

Statute: Title IX states generally 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, 20 U.S.C. 1681(a), but does not specifically mention sexual harassment.

Current Regulations: None. 

A. Adoption of Supreme Court standards for sexual harassment

Section 106.44(a) General; Section 106.44(e)(1); Section 106.44(e)(6) 
18 

Proposed Regulations: We propose adding a new section 106.44 covering a recipient’s response 

to sexual harassment. Proposed section 106.44(a) would state that a recipient with actual 

knowledge of sexual harassment in an education program or activity of the recipient against a 

person in the United States must respond in a manner that is not deliberately indifferent. 

Proposed section 106.44(a) would also state that a recipient is deliberately indifferent only if its 

response to sexual harassment is clearly unreasonable in light of the known circumstances.

We propose definitions for “sexual harassment” and “actual knowledge” in section 

106.44(e). Paragraph (e)(1) defines “sexual harassment” to mean either an employee of the 

recipient conditioning the provision of an aid, benefit, or service of the recipient on an 

individual’s participation in unwelcome sexual conduct; or 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; or sexual assault as 

defined in 34 CFR 668.46(a), implementing the Jeanne Clery Disclosure of Campus 

Security Policy and Campus Crime Statistics Act (Clery Act). Paragraph (e)(6) defines 

“actual knowledge” as notice of sexual harassment or allegations of sexual harassment to a 

recipient’s Title IX Coordinator or any official of the recipient who has authority to institute 

corrective measures on behalf of the recipient, or to a teacher in the elementary and 

secondary context with regard to student-on-student harassment. Paragraph (e)(6) also 

states that imputation of knowledge based solely on respondeat superior or constructive 

notice is insufficient to constitute actual knowledge, that the standard is not met when the 

only official of the recipient with actual knowledge is also the respondent, and that the mere 

ability or obligation to report sexual harassment does not qualify an employee, even if that

employee is an official, as one who has authority to institute corrective measures on behalf 

of the recipient. 
19 

Reasons: The Department believes that the administrative standards governing recipients’

responses to sexual harassment should be generally aligned with the standards developed by 

the Supreme Court in cases assessing liability under Title IX for money damages in private 

litigation. The Department believes that students and institutions would benefit from the 

clarity of an essentially uniform standard. More importantly, the Department believes that 

the Supreme Court’s foundational decisions in this area, Gebser and Davis, are based on a 

textual interpretation of Title IX and on policy rationales that the Department finds 

persuasive for the administrative context. The Department’s proposed regulations 

significantly reflect legal precedent because, while we could have chosen to regulate in a 

somewhat different manner, we believe that the standards articulated by the Court in these 

areas are the best interpretation of Title IX and that a consistent body of law will facilitate 

appropriate implementation.

First, the Court has held that Title IX governs misconduct by recipients, not by third parties 

such as teachers and students. As the Court noted in Gebser, Title IX is a statute “designed 

primarily to prevent recipients of federal financial assistance from using the funds in a 

discriminatory manner.” Gebser, 524 U.S. at 292; Cannon v. Univ. of Chicago, 414 U.S. 

677, 704 (1979) (noting that the primary congressional purpose behind the statutes was “to 

avoid the use of federal resources to support discriminatory practices”). It is thus a 

recipient’s own misconduct—not the actions of employees, students, or other third parties—

that subjects the recipient to liability under Title IX.

Second, because Congress enacted Title IX under its Spending Clause authority, the 

obligations it imposes on recipients are in the nature of a contract. Gebser, 524 U.S. at 

286; Davis, 526 U.S. at 640. The Court has reasoned that it follows from this that recipients 

must be on clear notice of what conduct is prohibited and that recipients must be held liable 
20 

only for conduct over which they have control. Id. at 644-45. 

Third, the text of Title IX prohibits only discrimination that has the effect of denying access 

to the recipient’s educational program or activities. Id. at 650-52. Accordingly, Title IX 

does not prohibit sex-based misconduct that does not rise to that level of severity. 

And finally, the Court reasoned in Davis that Title IX must be interpreted in a manner that 

leaves room for flexibility in schools’ disciplinary decisions and that does not place courts 

in the position of second-guessing the disciplinary decisions made by school administrators. 

Id. at 648. 

As a matter of policy, the Department believes that these same principles should govern 

administrative enforcement of Title IX. To that end, the proposed regulation would provide 

that actual knowledge – rather than mere constructive knowledge or imputation of 

knowledge based on a respondeat superior theory – triggers the recipient’s duty to respond. 

Consistent with Title IX’s focus on the recipient’s own misconduct and with the contractual 

nature of the duty imposed by Title IX, this standard ensures that the recipient is on clear 

notice of the discrimination (or alleged discrimination) that it must address. By contrast, as 

the Court observed in Gebser, a constructive knowledge standard would make a funding 

recipient liable for misconduct of which it was unaware. Gebser, 524 

U.S. at 287. Further, applying this standard in the administrative enforcement context is 

consistent with “Title IX’s express means of enforcement – by administrative agencies – 

[which] operates on the assumption of actual notice to officials of the funding recipient.” 

Id. at 288. 

Similarly, proposed section 106.44(a) adopts the Gebser/Davis standard that actual 

knowledge means “notice of sexual harassment or allegations of sexual harassment to an 
21 

official of the recipient who has authority to institute corrective measures on behalf of the 

recipient.” Consistent with the text and purpose of Title IX, this standard ensures that a 

recipient is liable only for its own misconduct. As the Court noted in Gebser and Davis, it is 

only when the recipient makes an intentional decision not to respond to third-party 

discrimination that the recipient itself can be said to “subject” its students to such 

discrimination. Gebser, 524 U.S. at 291-92; Davis, 526 U.S. at 642-43. Determining 

whether someone is an official with authority to take corrective action is a fact-specific 

inquiry. See e.g., Doe v. Sch. Bd. of Broward Cty., Fla., 604 F.3d 1248, 1256 (11th Cir. 

2010) (“we also note that the ultimate question of who is an appropriate person is 

‘necessarily a fact-based inquiry’ because ‘officials’ roles vary among school districts.’”) 

(quoting Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1247 (10th Cir. 1999)). 

For recipients that are elementary and secondary schools, with respect to student-onstudent sexual harassment, proposed section 106.44(e)(6) states that actual knowledge can 

also come from notice to a teacher. The Department recognizes that the Supreme Court has 

not held definitively that teachers are “appropriate officials with the authority to take 

corrective action” with respect to student-on-student sexual harassment; however, in the 

elementary and secondary school setting where school administrators and teachers are more 

likely to act in loco parentis, and exercise a considerable degree of control and supervision

over their students, the Department believes this interpretation is reasonable.
22 

Davis, 526 U.S. at 646, citing Veronica Sch. Dist. v. Acton, 515 U.S. 646, 655 (1995) 

(noting that a public school’s power over its students is “custodial and tutelary, permitting a 

degree of supervision and control that could not be exercised over free adults”). Teachers 

specifically have a “degree of familiarity with, and authority over, their students that is 

unparalleled except perhaps in the relationship between parent and child.” New Jersey v. 

T.L.O., 469 U.S. 325, 348 (1985) (Powell, J., concurring). Thus, the Department believes 

that teachers at elementary and secondary schools should be considered to have the 

requisite authority to impart actual knowledge to the recipient regarding student-on-student 

conduct that could constitute sexual harassment and to trigger a recipient’s obligations 

under Title IX. Whether in the context of elementary and secondary schools, or institutions 

of higher education, determining who is an official to whom notice of sexual harassment 

gives actual knowledge to the recipient will be fact- specific. Notice to a recipients’ Title IX 

Coordinator, however, will always confer actual knowledge on the recipient; therefore, 

every student has a clearly designated option for reporting sexual harassment to trigger their 

school’s response obligations. 

The definition in proposed section 106.44(e)(6) also states that the mere ability or 

obligation to report sexual harassment does not qualify an employee, even if that employee 

is an official, as one who has authority to institute corrective measures on behalf of the 

recipient. Plamp v. Mitchell Sch. Dist. No. 17-2, 565 F.3d 450, 459 (8th Cir. 2009) (“After 

all, each teacher, counselor, administrator, and support-staffer in a school building has the 

authority, if not the duty, to report to the school administration or school board potentially 

discriminatory conduct. But that authority does not amount to an authority to take a 

corrective measure or institute remedial action within the meaning of
23 

Title IX. Such a holding would run contrary to the purposes of the statute”); see also 

Santiago v. Puerto Rico, 655 F.3d 61, 75 (1st Cir. 2011) (“The empty allegation that a 

school employee ‘failed to report’ harassment to someone higher up in the chain of 

command who could have taken corrective action is not enough to establish institutional 

liability. Title IX does not sweep so broadly as to permit a suit for harm-inducing conduct 

that was not brought to the attention of someone with the authority to stop it.”) (internal 

citation omitted).

Further, a recipient’s actual knowledge must be regarding conduct of the type proscribed 

under Title IX. The Department intends that the proposed definition of sexual harassment 

be consistent with the text of Title IX and with the Court’s decisions in Gebser and Davis. 

The proposed regulation defines sexual harassment as either an employee of the recipient 

conditioning the provision of an aid, benefit, or service of the recipient on an individual’s 

participation in unwelcome sexual conduct; or 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; or sexual assault as defined in 34 

CFR 668.46(a) (implementing the Clery Act). In each instance, following the text and 

purpose of Title IX, the definition thus seeks to include only sex- based discrimination that 

is sufficiently serious as to effectively deprive a student of equal access to a funding 

recipient’s educational program or activity. Institutions of higher education must comply 

with both the Clery Act and Title IX. Because the purpose of Title IX is to prohibit a 

recipient from subjecting individuals to sex discrimination in its education program or 

activity, the definition of sexual harassment under Title IX focuses on sexual conduct that 

jeopardizes a person’s equal access to an education

program or activity. Such sexual harassment includes conduct that is also a crime (such as 
24 

sexual assault), but Title IX does not focus on crimes per se. By contrast, the Clery Act 

focuses on particular crimes (stalking, dating violence, domestic violence, sexual assault) 

and an institution’s obligation to disclose information and services to victims, and otherwise 

respond, to reports of such crimes. Although the Clery Act focuses on crimes that may also 

meet the definition of “sexual harassment” under the Title IX definition proposed in section 

106.44(e)(1), such crimes do not always necessarily meet that definition (for example, 

where an incident of stalking is not “based on sex” as required under the Title IX definition 

of sexual harassment). The proposed regulations set forth definitions and obligations that 

further the purpose of Title IX with the goal of ensuring that institutions of higher education 

can also comply with their Clery Act obligations without conflict or inconsistency. 

Proposed section 106.44(a) also reflects the statutory provision that a recipient is only 

responsible for responding to conduct that occurs within its “education program or 

activity.” See 20 U.S.C. § 1681(a) (prohibiting a recipient from subjecting persons in the 

United States to discrimination “under any education program or activity”). The Title IX 

statute defines “program or activity” as “all of the operations of” a recipient. See 20 

U.S.C. 1687. An “education program or activity” includes “any academic, extracurricular, 

research, [or] occupational training.” 34 CFR § 106.31. See also Doe v. Brown Univ., 896 

F.3d 127, 132 n.6 (1st Cir. 2018) (“an institution’s education program or activity” may 

include “university libraries, computer labs, and vocational resources . . . campus tours, 

public lectures, sporting events, and other activities at covered institutions”). Whether 

conduct occurs within a recipient’s education program or activity
25 

does not necessarily depend on the geographic location of an incident (e.g., on a recipient’s 

campus versus off of a recipient’s campus). See e.g., Rost ex rel. K.C. v. Steamboat Springs 

RE-2 Sch. Dist., 511 F.3d 1114, 1121 n.1 (10th Cir. 2008) (“We do not suggest that 

harassment occurring off school grounds cannot as a matter of law create liability under 

Title IX”).

In determining whether a sexual harassment incident occurred within a recipient’s program 

or activity, courts have examined factors such as whether the conduct occurred in a 

location or in a context where the recipient owned the premises; exercised oversight, 

supervision, or discipline; or funded, sponsored, promoted, or endorsed the event or 

circumstance. See e.g., Davis, 526 U.S. at 646 (“Where, as here, the misconduct occurs 

during school hours and on school grounds—the bulk of G.F.'s misconduct, in fact, took 

place in the classroom—the misconduct is taking place ‘under’ an ‘operation’ of the 

funding recipient.”); Samuelson v. Or. State Univ., 725 Fed. Appx. 598, 599 (9th Cir. 

2018) (affirming dismissal of plaintiff’s Title IX claim against OSU because she “failed to 

allege that her sexual assault occurred ‘under’ an OSU ‘program or activity’” where 

plaintiff alleged that she was assaulted “off campus by a non-university student at a 

location that had no sponsorship by or association with OSU”); Farmer v. Kansas State 

Univ., 2017 WL 980460, at * 8 (D. Kan. Mar. 14, 2017) (holding that a KSU fraternity is 

an “education program or activity” for purposes of Title IX because “KSU allegedly 

devotes significant resources to the promotion and oversight of fraternities through its 

websites, rules, and Office of Greek Affairs. Additionally, although the fraternity is housed 

off campus, it is considered a ‘Kansas State University Organization,’ is open only to KSU 

students, and is directed by a KSU instructor. Finally, KSU sanctioned the
26 

alleged assailant for his alcohol use, but not for the alleged assault. Presented with these 

allegations, the Court is convinced that the fraternity is an ‘operation’ of the University, 

and that KSU has substantial control over student conduct within the fraternity.”).

Importantly, nothing in the proposed regulations would prevent a recipient from initiating a 

student conduct proceeding or offering supportive measures to students who report sexual 

harassment that occurs outside the recipient’s education program or activity (or as to 

conduct that harms a person located outside the United States, such as a student 

participating in a study abroad program). Notably, there may be circumstances where the 

harassment occurs in a recipient’s program or activity, but the recipient’s response 

obligation is not triggered because the complainant was not participating in, or even 

attempting to participate in, the education programs or activities provided by that recipient. 

See e.g., Doe, 896 F.3dat 132-33 (affirming judgement on the pleadings and “[f]inding no 

plausible claim under Title IX” where plaintiff alleged that, while a Providence College 

student, three Brown University students sexually assaulted her on Brown’s campus, and 

Brown notified the plaintiff that she had a right to file a complaint under Brown’s Code of 

Student Conduct—but not Title IX—because she had not availed herself or attempted to 

avail herself of any of Brown’s educational programs and therefore could not have been 

denied those benefits). 

The Department wishes to emphasize that when determining how to respond to sexual 

harassment, recipients have flexibility to employ age-appropriate methods, exercise 

common sense and good judgment, and take into account the needs of the parties involved. 

Finally, the Department wishes to clarify that Title IX’s “education program or activity” 

language should not be conflated with Clery Act geography; these are distinct 
27 

jurisdictional schemes, though they may overlap in certain situations.

Once it has been established that a recipient has actual knowledge of sexual harassment in 

its education program or activity, it becomes necessary to evaluate the recipient’s response. 

Although the Department is not required to adopt the deliberate indifference standard 

articulated by the Court, we are persuaded by the policy rationales relied on by it and 

believe it’s the best policy approach. As the Court reasoned in Davis, a recipient acts with 

deliberate indifference only when it responds to sexual harassment in a manner that is 

“clearly unreasonable in light of the known circumstances.” Davis, 526 U.S. at 648-49. The 

Department believes this standard holds recipients accountable without depriving them of 

legitimate and necessary flexibility to make disciplinary decisions and to provide supportive 

measures that might be necessary in response to sexual harassment. Moreover, the 

Department believes that teachers and local school leaders with unique knowledge of the 

school culture and student body are best positioned to make disciplinary decisions; thus, 

unless the recipient’s response to sexual harassment is clearly unreasonable in light of 

known circumstances, the Department will not second guess such decisions. In fact, the 

Court observed in Davis that courts must not second guess recipients’ disciplinary 

decisions. Id. As a matter of policy, the Department believes that it would be equally wrong 

for it to second guess recipients’ disciplinary decisions through the administrative 

enforcement process. Where a respondent has been found responsible for sexual 

harassment, any disciplinary sanction decision rests within the discretion of the recipient, 

although the recipient must also provide remedies, as appropriate, to the complainant 

designed to restore or preserve the complainant’s educational access, as provided for in 

proposed section 106.45(b)(1)(i). 
28 

The Department acknowledges that proposed section 106.44(a) would adopt standards that 

depart from those set forth in prior guidance and OCR enforcement of Title IX. The 

Department’s guidance and enforcement practices have taken the position that constructive 

notice – as opposed to actual notice – triggered a recipient’s duty to respond to sexual 

harassment; that recipients had a duty to respond to a broader range of sex- based 

misconduct than the sexual harassment defined in the proposed regulation; and that 

recipients’ response to sexual harassment should be judged under a reasonableness 

standard, rather than under the deliberate indifference standard adopted by the proposed 

regulation. In 2001, the Department asserted that the Court’s decisions in Gebser and Davis 

and the liability standard set out for private actions for monetary damages did not preclude 

the Department from maintaining its administrative enforcement standards reflected in the 

1997 guidance. See 2001 Guidance at iii-iv. 

Based on its consideration of the text and purpose of Title IX, of the reasoning underlying 

the Court’s decisions in Gebser and Davis, and of the views of the stakeholders it has 

consulted, the Department now believes that the earlier guidance should be reconsidered. 

Contrary to the text of Title IX and inconsistent with the contractual nature of the 

obligations the statute imposes pursuant to Congress’ Spending Clause authority, the 

guidance’s constructive notice standard made funding recipients liable for conduct of which 

they were unaware. Similarly, the guidance arguably exceeded the text of the statute by 

requiring institutions to respond to conduct less severe than that proscribed by Title IX. 

And, by evaluating schools’ responses under a mere reasonableness standard, the guidance 

improperly deprived administrators of needed flexibility to make disciplinary decisions 

affecting their students. 
29 

The deliberate indifference standard set forth in Davis and in proposed section 106.44(a) 

allows schools predictably to evaluate their response to sexual harassment for purposes of 

both civil litigation and administrative enforcement by the Department based on a

consistent standard. Although the Department is not required to adopt the liability standards 

applied by the Supreme Court in private suits for money damages, the Department is 

persuaded by the policy rationales relied on by the Court. Generally, the liability standards 

of actual knowledge and deliberate indifference are also appropriate in administrative 

enforcement of Title IX, where a recipient’s federal funding is at stake if it fails to comply 

with Title IX, because such standards are premised on holding recipients accountable for 

responding to discrimination of which the recipients know and have control. Recognizing 

that the Department has broad authority under the Title IX statute to issue regulations that 

effectuate the provisions of Title IX, the Department is retaining and proposes to add in the 

proposed regulation provisions that would clarify that, in addition to a general deliberate 

indifference standard, schools must take other actions that courts do not require in private 

litigation under Title IX (e.g., requiring a designated Title IX Coordinator, requiring written 

grievance procedures, describing the supportive measures that a non-deliberatively 

indifferent response may require, requiring a school to investigate and adjudicate formal 

complaints, and other requirements found in proposed sections 106.8, 106.44, and 106.45.) 

B. Responding to formal complaints of sexual harassment; safe harbors

Section 106.44(b) Specific circumstances; Section 106.44(e)(2) through (e)(5) 

Proposed Regulations: We propose adding section 106.44(b) to address specific 

circumstances under which a recipient will respond to sexual harassment. We propose 

adding paragraph (b)(1) stating that a recipient must follow procedures (including 
30 

implementing any appropriate remedy as required) consistent with section 106.45 in 

response to a formal complaint as to allegations of conduct within its education program or 

activity, and that if the recipient follows procedures consistent with section 106.45 in 

response to a formal complaint, the recipient’s response to the formal complaint is not 

deliberately indifferent and does not otherwise constitute sex discrimination under Title 

IX. Proposed section 106.44(e)(5) defines “formal complaint” as a document signed by a 

complainant or by the Title IX Coordinator alleging sexual harassment against a respondent 

about conduct within its education program or activity, and requesting initiation of the 

recipient’s grievance procedures consistent with section 106.45. 

We also propose adding paragraph (b)(2), stating that when a recipient has actual 

knowledge of reports by multiple complainants of conduct by the same respondent that 

could constitute sexual harassment, the Title IX Coordinator must file a formal complaint; if 

the Title IX Coordinator files a formal complaint in response to such allegations, and the 

recipient follows procedures (including implementing any appropriate remedy where 

required) consistent with section 106.45 in response to the formal complaint, the recipient’s 

response to the reports is not deliberately indifferent. 

In addition, we propose adding paragraph (b)(3), which states that, for institutions of higher 

education, in the absence of a formal complaint, a recipient is not deliberately indifferent 

when it implements supportive measures designed to effectively restore or preserve access 

to the recipient’s education program or activity. We further proposed that the recipient must 

also at the same time give written notice to the complainant stating that the complainant can 

choose to file a formal complaint at a later time despite having

declined to file a formal complaint at the time the supportive measures are offered.

We propose adding paragraph (b)(4), which states that where paragraphs (b)(1) through 
31 

(b)(3) are not implicated, a recipient with actual knowledge of sexual harassment in its 

education program or activity against a person in the United States must, consistent with 

paragraph (a), respond in a manner that is not deliberately indifferent. A recipient is 

deliberately indifferent only if its response to sexual harassment is clearly unreasonable in 

light of the known circumstances.

Proposed section 106.44(e)(2) defines “complainant” as an individual who has reported 

being the victim of conduct that could constitute sexual harassment, or on whose behalf the 

Title IX Coordinator has filed a formal complaint. Additionally, for purposes of this 

proposed subsection, the person to whom the individual has reported must be the Title IX 

Coordinator or another person to whom notice of sexual harassment results in the 

recipient’s actual knowledge under section 106.44(e)(6). 

Proposed section 106.44(e)(3) defines “respondent” as an individual who has been reported 

to be the perpetrator of conduct that could constitute sexual harassment.

Proposed section 106.44(e)(4) defines “supportive measures” as non-disciplinary, nonpunitive individualized services offered as appropriate, as reasonably available, and without 

fee or charge, to the complainant or the respondent before or after the filing of a formal 

complaint or where no formal complaint has been filed. Paragraph (e)(4) goes on to explain 

that such measures are designed to restore or preserve access to the recipient’s education 

program or activity, without unreasonably burdening the other party; protect the safety of 

all parties and the recipient’s educational environment; and deter sexual harassment. 

Supportive measures may include counseling, extensions of deadlines or 

other course-related adjustments, modifications of work or class schedules, campus escort 

services, mutual restrictions on contact between the parties, changes in work or housing 

locations, leaves of absence, increased security and monitoring of certain areas of the 
32 

campus, and other similar measures. Paragraph (e)(4) also states that the recipient must 

maintain as confidential any supportive measures provided to the complainant or 

respondent, to the extent that maintaining such confidentiality would not impair the ability 

of the institution to provide the supportive measures. Furthermore, paragraph (e)(4) clarifies 

that the Title IX Coordinator is responsible for coordinating the effective implementation 

of supportive measures.

Finally, we propose adding section 106.44(b)(5), which explains that the Assistant 

Secretary will not deem a recipient’s determination regarding responsibility to be evidence 

of deliberate indifference by the recipient merely because the Assistant Secretary would 

have reached a different determination based on an independent weighing of the evidence.

Reasons: To clarify a recipient’s responsibilities under this standard, proposed section 

106.44(b) would specify two circumstances under which a recipient must initiate its 

grievance procedures, and in those situations provide a safe harbor from a finding of 

deliberate indifference where the recipient does in fact implement grievance procedures 

consistent with the proposed section 106.45. Those two situations are (i) where a formal 

complaint is filed, or (ii) where the recipient has actual knowledge of reports by multiple 

complainants of conduct by the same respondent that could constitute sexual harassment (in 

which case the proposed regulations require the recipient’s Title IX Coordinator to file a 

formal complaint if none has already been filed). In response to either of these two
33 

situations, if the recipient follows grievance procedures consistent with proposed section 

106.45, including implementing any appropriate remedy as required for the complainant, 

the recipient is given a safe harbor from a finding of deliberate indifference by the 

Department with respect to its response to the formal complaint, because the recipient’s 

response would not be “clearly unreasonable in light of the known circumstances.” Davis, 

526 U.S. at 648-49, 654. The Department believes that including these safe harbors in the 

regulations emphasizes a recipient’s obligation to respond to known sexual harassment and 

to ensure a complainant’s access to the recipient’s education program or activity in 

situations where a finding of responsibility has been made, while preserving the recipient’s 

flexibility to implement its grievance procedures, provided those procedures comply with 

the requirements of proposed section 106.45. The safe harbor available in proposed section 

106.44(b)(1) would shield the recipient from a finding by the Department that the 

recipient’s response to the formal complaint constituted sex discrimination under Title IX, 

regardless of whether the complainant claimed that the response was deliberately 

indifferent, or whether the respondent claimed that the recipient’s response otherwise 

constituted sex discrimination. For institutions of higher education, proposed section 

106.44(b)(3) provides a safe harbor against a finding of deliberate indifference where, in the 

absence of a formal complaint, a school’s response to known, reported, or alleged sexual 

harassment is to offer and provide the complainant supportive measures designed to 

effectively restore or preserve the complainant’s access to the recipient’s education program 

or activity. This provision is intended to call recipients’ attention to the importance of 

offering supportive measures to students who may not wish to file a formal complaint 

that would initiate a grievance process. The
34 

Department has heard from a wide range of stakeholders about the importance of a school 

taking into account the wishes of the complainant in deciding whether or not a formal 

investigation and adjudication is warranted. The proposed regulation creates a framework 

where a complainant has the right to file a formal complaint and the school must then 

initiate its grievance procedures, but in proposed section 106.44(b)(3) the Department also 

recognizes that for a variety of reasons, not all complainants want to file a formal 

complaint, and that in many situations a complainant’s access to his or her education can be 

effectively restored or preserved through the school providing supportive measures. The 

proposed regulation requires that, to be entitled to this safe harbor, the recipient must first 

inform the complainant in writing of his or her right to pursue a formal complaint, including 

the right to later file a formal complaint (consistent with any other requirements of the 

proposed regulation). Proposed section 106.44(b)(3) gives a safe harbor only to institutions 

of higher education, in recognition that college and university students are generally adults 

capable of deciding whether supportive measures alone suffice to protect their educational 

access.

Proposed section 106.44(b)(4) states that even if none of the safe harbor situations is 

present, the recipient’s response to sexual harassment must still meet the general 

requirement in section 106.44(a) to not be deliberately indifferent, which means the 

recipient’s response must not be clearly unreasonable in light of the known circumstances. 

Section 106.44(b)(1)-(b)(3) explains what deliberate indifference means in three specific 

contexts. Section 106.44(b)(4) clarifies that when those three situations are not implicated, 

the general deliberate indifference standard specific in section 106.44(a) applies to a 

recipient with actual knowledge of sexual harassment in and
35 

education program or activity of the recipient against a person in the United States that 

effectively denies an individual equal access to the recipient’s education program or 

activity.

To define the respective parties involved in a recipient’s grievance procedures, proposed 

section 106.44(e)(2) defines “complainant” as one who has reported being the victim of 

sexually harassing conduct. To be considered a “complainant,” such a report must be made 

to the recipient’s Title IX Coordinator or other official to whom notice of sexual harassment 

results in the recipient having actual knowledge as described in section 106.44(e)(6). This

clarifies when a recipient must view a person as a complainant for purposes of offering 

supportive measures, investigating a formal complaint, and any other response necessary to 

meet the recipient’s obligation to not be deliberately indifferent. Proposed section 

106.44(e)(3) defines “respondent” as an individual who has been the subject of a report of 

sexual harassment.

Consistent with feedback from many stakeholders, the Department recognizes that often the 

most effective measures a recipient can take to support its students in the aftermath of an 

alleged incident of sexual harassment are outside the grievance process and involve 

working with the affected individuals to provide reasonable supportive measures that 

increase the likelihood that they will be able to continue their education in a safe, supportive 

environment. 

Also consistent with feedback from stakeholders on the issue of supportive measures and to 

provide needed clarity, we (1) propose to define them as non-disciplinary, non-punitive 

individualized services offered as appropriate, as reasonably available, and without fee or 

charge, to the complainant or the respondent before or after the filing of a formal 
36 

complaint or where no formal complaint has been filed; (2) propose to specify, in the 

definition, that the recipient must maintain as confidential any supportive measures 

provided to the complainant or respondent, to the extent that maintaining such 

confidentiality would not impair the ability of the institution to provide the supportive 

measures, and (3) further specify that such measures are designed to restore or preserve 

access to the recipient’s education program or activity, without unreasonably burdening the 

other party; protect the safety of all parties and the recipient’s educational environment; and 

deter sexual harassment.. For added clarity on supportive measures, proposed section 

106.44(e)(4) contains a non-exclusive list of examples of supportive measures. Recipients 

are encouraged to broadly consider what measures they can reasonably provide to 

individual students to ensure continued equal access to educational programs, activities, 

opportunities, and benefits for a complainant at the time the complainant reports or files a 

formal complaint, and for a respondent when a formal complaint is being investigated.

We also specify in the proposed definition that the recipient’s Title IX Coordinator is 

responsible for coordinating effective implementation of supportive measures. Many 

supportive measures involve implementation through various offices or departments within 

a school; when supportive measures are part of a school’s response to a Title IX sexual 

harassment report or formal complaint, the Title IX Coordinator must serve as the point of 

contact for the affected students to ensure that the supportive measures are effectively 

implemented so that the burden of navigating paperwork or other policy requirements 

within the recipient’s own system does not fall on the student receiving the supportive 

measure. For example, where a mutual no-contact order has been imposed as a 
37 

supportive measure, the affected complainant and respondent should know to contact the 

Title IX Coordinator with questions about how to interpret or enforce the no-contact order; 

as a further example, where a student receives an academic course adjustment as a 

supportive measure, the Title IX Coordinator is responsible for communicating with other 

offices within the school as needed to ensure that the adjustment occurs as intended and 

without fee or charge to the student. As another example, if counseling services are 

provided as a supportive measure, the Title IX Coordinator should help coordinate the 

service and ensure the sessions occur without fee or charge. Proposed section 106.44(b)(5) 

would provide that the Assistant Secretary will not deem a recipient’s determination 

regarding responsibility that results from the implementation of its grievance procedures to 

be evidence of deliberate indifference by the recipient merely because the Assistant 

Secretary would have reached a different determination based on an independent weighing 

of the evidence. During a complaint investigation or compliance review, OCR’s role is not 

to conduct a de novo review of the recipient’s investigation and determination of 

responsibility for a particular respondent. Rather, OCR’s role is to determine whether a 

recipient has complied with Title IX and its implementing regulations. Thus, OCR will not 

find a recipient to have violated Title IX or this part solely because OCR may have weighed 

the evidence differently in a given case. The Department believes it is important to include 

this provision in the regulations to provide notice and transparency to recipients about 

OCR’s role and standard of review in enforcing Title IX. This provision does not, however, 

preclude OCR from requiring a recipient’s determination of responsibility to be set aside if 

the recipient did not comply with proposed section 106.45. 
38 

C. Additional rules governing recipients’ responses to sexual harassment

Section 106.44(c) Emergency removal 

Proposed Regulations: We propose adding section 106.44(c) stating that nothing in 

section 106.44 precludes a recipient from removing a respondent from the recipient’s 

education program or activity on an emergency basis, provided that the recipient undertakes 

an individualized safety and risk analysis, determines that an immediate threat to the health 

or safety of students or employees justifies removal, and provides the respondent with 

notice and an opportunity to challenge the decision immediately following the removal. 

Paragraph (c) also states that the paragraph shall not be construed to modify any rights 

under the Individuals with Disabilities Education Act (IDEA), Section 504 of the 

Rehabilitation Act of 1973 (Section 504) , or Title II of the Americans with Disabilities Act 

(ADA).

Reasons: Recognizing that there are situations in which a respondent may pose an 

immediate threat to the health and safety of the campus community before an investigation 

concludes, proposed section 106.44(c) would allow recipients to remove such respondents, 

provided that the recipient undertakes a safety and risk analysis and provides notice and 

opportunity to the respondent to challenge the decision immediately following removal. 

This proposed provision tracks the language in the Clery Act regulations at 34 CFR 

668.46(g) and would apply to all recipients subject to Title IX. The Department believes 

that this provision for emergency removals should be applicable at the elementary and 

secondary education level as well as the postsecondary education level to ensure the health 

and safety of all students. When considering removing a respondent pursuant to this

provision, the proposed regulations require that a recipient
39 

follow the requirements of the IDEA, Section 504, and Title II of the ADA. Thus, a 

recipient may remove a student on an emergency basis under section 106.44(c), but only to 

the extent that such removal conforms with the requirements of the IDEA, Section 504 and 

Title II of the ADA.

Section 106.44(d) Administrative leave 

Proposed Regulations: We propose adding section 106.44(d) stating that nothing in 

section 106.44 precludes a recipient from placing a non-student employee respondent on 

administrative leave during the pendency of an investigation. 

Reasons: Because placing a non-student respondent on administrative leave does not 

implicate access to the recipient’s education programs and activities in the same way that 

other respondent-focused measures might, and in light of the potentially negative impact of 

forcing a recipient to continue an active agency relationship with a respondent while 

accusations are being investigated, the Department concludes that it is appropriate to allow 

recipients to temporarily put non-student employees on administrative leave pending an 

investigation.

II. Grievance procedures for formal complaints of sexual harassment

(Proposed section 106.45) 

Statute: The statute does not directly address grievance procedures for formal complaints

of sexual harassment. The Secretary has the authority to regulate with regard to 

discrimination on the basis of sex in education programs or activities receiving federal 

financial assistance specifically under 20 U.S.C. 1682 and generally under 20 U.S.C. 

1221e-3 and 3474. 
40 

Current Regulations: 34 CFR 106.8(b) states that “A recipient shall adopt and publish 

grievance procedures providing for prompt and equitable resolution of student and 

employee complaints alleging any action which would be prohibited by this part.” 

Section 106.45(a) Discrimination on the basis of sex 

Proposed Regulations: We propose adding a new section 106.45 addressing the required 

grievance procedures for formal complaints of sexual harassment. Proposed paragraph (a) 

states that a recipient’s treatment of a complainant in response to a formal complaint of 

sexual harassment may constitute discrimination on the basis of sex, and also states that a 

recipient’s treatment of the respondent may constitute discrimination on the basis of sex 

under Title IX. 

Reasons: Deliberate indifference to a complainant’s allegations of sexual harassment may

violate Title IX by separating the student from his or her education on the basis of sex; 

likewise, a respondent can be unjustifiably separated from his or her education on the basis 

of sex, in violation of Title IX, if the recipient does not investigate and adjudicate using fair 

procedures before imposing discipline. Fair procedures benefit all parties by creating trust 

in both the grievance process itself and the outcomes of the process. 

A. General requirements for grievance procedures

Section 106.45(b)(1) 

Proposed Regulations: We propose adding section 106.45(b) to specify that for the 

purpose of addressing formal complaints of sexual harassment, grievance procedures must 

comply with the requirements of proposed section 106.45. Paragraph (b)(1) states that

grievance procedures must--
41 

(i) Treat complainants and respondents equitably; an equitable resolution must include 

remedies for the complainant where a finding of responsibility against the respondent has 

been made, with such remedies designed to restore or preserve access to the recipient’s 

education program or activity, and due process protections for the respondent before any 

disciplinary sanctions are imposed; 

(ii) Require an investigation of the allegations and an objective evaluation of all relevant 

evidence – including both inculpatory and exculpatory evidence – and provide that 

credibility determinations may not be based on a person’s status as a complainant, 

respondent, or witness;

(iii) Require that any individual designated by a recipient as a coordinator, investigator, 

or decision-maker not have a conflict of interest or bias for or against complainants or 

respondents generally or an individual complainant or respondent; and that a recipient 

ensure that coordinators, investigators, and decision-makers receive training on the 

definition of sexual harassment and how to conduct an investigation and grievance process 

– including hearings, if applicable – that protect the safety of students, ensure due process 

protections for all parties, and promote accountability; and that any materials used to train 

coordinators, investigators, or decision-makers not rely on sex stereotypes and instead 

promote impartial investigations and adjudications of sexual harassment;

(iv) Include a presumption that the respondent is not responsible for the alleged conduct 

until a determination regarding responsibility is made at the conclusion of the grievance 

process;

(v) Include reasonably prompt timeframes for completion of the grievance process, 

including reasonably prompt timeframes for filing and resolving appeals if the recipient
42 

offers an appeal, and including a process that allows for the temporary delay of the 

grievance process or the limited extension of timeframes for good cause with written notice 

to the complainant and the respondent of the delay or extension, and the reasons for the 

action; good cause may include considerations such as the absence of the parties or 

witnesses, concurrent law enforcement activity, or the need for language assistance or 

accommodation of disabilities;

(vi) Describe the range of possible sanctions and remedies that the recipient may 

implement following any determination of responsibility; 

(vii) Describe the standard of evidence to be used to determine responsibility; 

(viii) Include the procedures and permissible bases for the complainant and respondent to 

appeal if the recipient offers an appeal; and

(ix) Describe the range of supportive measures available to complainants and 

respondents. 

Reasons: In describing the requirements for grievance procedures for formal complaints

of sexual harassment in paragraph (b)(1), the Department’s intent is to balance the need to 

establish procedural safeguards providing a fair process for all parties with recognition that 

a recipient needs flexibility to employ grievance procedures that work best for the 

recipient’s educational environment. 

Proposed section 106.45(b)(1)(i) would require that grievance procedures treat 

complainants and respondents equitably, echoing the existing requirement in 34 CFR 

106.8 that a recipient’s grievance procedures provide for “prompt and equitable resolution” 

of complaints. Stakeholders have urged the Department to protect the 
43 

interests of both the complainant and the respondent, and to ensure that recipients’ 

procedures treat both parties equitably and fairly throughout the process, including 

incorporating the protections described throughout proposed section 106.45(b). A fair and 

equitable grievance process benefits all parties because they are more likely to trust in, 

engage with, and rely upon the process as legitimate. The Department recognizes that some 

recipients are state actors with responsibilities to provide protections to students and 

employees under the Fourteenth Amendment’s Due Process Clause. Other recipients are 

private institutions that do not have constitutional obligations to their students and 

employees. The due process protections provided under these proposed regulations aim to 

effectuate the objectives of Title IX by creating consistent, fair, objective grievance 

processes that make the process equitable for both parties and are more likely to generate 

reliable outcomes. When presented with an allegation of sexual harassment the recipient 

must respond in a manner that is not deliberately indifferent, but to evaluate what 

constitutes an appropriate response, the recipient must first reach factual determinations 

about the allegations at issue. This requires the recipient to employ a grievance process that 

rests on fundamental notions of fairness and due process protections so that findings of 

responsibility rest on facts and evidence. Only when an outcome is the product of a 

predictable, fair process that gives both parties meaningful opportunity to participate will 

the recipient be in a position to determine what remedies and/or disciplinary sanctions are 

warranted. When a recipient establishes an equitable process with due process protections 

and implements it consistently, its findings will be viewed with more confidence by the 

parties and the public. 

Although both complainants and respondents have a common interest in a fair process, 
44 

they also have distinct interests that are recognized in paragraph (b)(1)(i). For example, 

paragraph (b)(1)(i) explains that equitable grievance procedures will provide remedies for 

the complainant as appropriate and due process protections for the respondent before any 

disciplinary action is taken. Because a grievance process could result in a determination that 

the respondent sexually harassed the complainant, and because the resulting sanctions 

against the respondent could include a complete loss of access to the education program or 

activity of the recipient, an equitable grievance procedure will only reach such a conclusion 

following a process that seriously considers any contrary arguments or evidence the 

respondent might have, including by providing the respondent with all of the specific due 

process protections outlined in the rest of the proposed regulations. Likewise, because the 

complainant’s access to the recipient’s education program or activity can be limited by 

sexual harassment, an equitable grievance procedure will provide relief from any sexual 

harassment found under the procedures required in the proposed regulations and restore 

access to the complainant accordingly.

Proposed section 106.45(b)(1)(ii) requires that a recipient investigate a complaint and that 

grievance procedures include an objective evaluation of the evidence. Stakeholders have 

raised concerns that recipients sometimes ignore evidence that does not fit with a 

predetermined outcome, and that investigators and decision-makers have inappropriately 

discounted testimony based on whether it comes from the complainant or the respondent. 

Paragraph (b)(1)(ii) responds to these concerns by requiring the recipient to conduct an 

investigation and objectively evaluate all evidence, and by prohibiting the recipient from 

basing its evaluation of testimony on the person’s status as a complainant, respondent, or 

witness.
45 

Proposed section 106.45(b)(1)(iii) would address the problems that have arisen for 

complainants and respondents as a result of coordinators, investigators, and decisionmakers making decisions based on bias by requiring recipients to fill such positions with 

individuals free from bias or conflicts of interest. This proposed provision generally tracks 

the language in the Clery Act regulations at 34 CFR 668.46(k)(3)(i)(C) and would apply to 

all recipients subject to Title IX. Paragraph (b)(1)(iii) would also require that coordinators, 

investigators, and decision-makers receive training on (1) the definition of sexual 

harassment and (2) how to conduct the investigation and grievance process in a way that 

protects student safety, due process, and accountability. This proposed provision generally 

tracks the language in the Clery Act regulations at 34 CFR 668.46(k)(2)(ii) and would apply 

to all recipients subject to Title IX. The Department believes that such training will help 

ensure that those individuals responsible for implementing the recipient’s grievance 

procedures are appropriately informed at the elementary and secondary education level as 

well as the postsecondary education level. Recipients would also be required to use training 

materials that promote impartial investigations and adjudications and that do not rely on sex 

stereotypes, so as to avoid training that would cause the grievance process to favor one side 

or the other or bias outcomes in favor of complainants or respondents. Recipients would 

continue to have the discretion to use their own employees to investigate and/or adjudicate 

matters under Title IX or to hire outside individuals to fulfill these responsibilities.

Proposed section 106.45(b)(1)(iv) would require that a recipient’s grievance procedures 

establish a presumption that the respondent is not responsible for the alleged conduct until a 

determination regarding responsibility is made at the conclusion of the grievance
46 

process. This requirement is added to ensure impartiality by the recipient until a 

determination is made. The requirement also bolsters other provisions in the proposed 

regulation that place the burden of proof on the recipient, rather than on the parties; indicate 

that supportive measures are “non-disciplinary” and “non-punitive” (implying that the 

recipient may not punish an accused person prior to a determination regarding 

responsibility); and impose due process protections throughout the grievance process. 

Finally, pending the finding of facts sufficient for the recipient to make a determination 

regarding responsibility, the requirement mitigates the stigma and reputational harm that 

accompany an allegation of sexual misconduct. A fundamental notion of a fair proceeding 

is that a legal system does not prejudge a person’s guilt or liability.

The proposed regulations recognize that the time that it takes to complete the grievance 

process will vary depending on, among others things, the complexity of the investigation, 

and that prompt resolution of the grievance process is important to both complainants and 

respondents. Proposed paragraph (b)(1)(v) would require recipients to designate reasonably 

prompt timeframes for the grievance process, including for appeals if the recipient offers an 

appeal, but also provide that timeframes may be extended for good cause with written 

notice to the parties and an explanation for the delay. This proposed provision generally 

tracks the language in the Clery Act regulations at 34 CFR 668.46(k)(3)(i)(A), which the 

Department believes is important to include for all recipients subject to Title IX. Some 

recipients felt pressure in light of prior Department guidance to resolve the grievance 

process within 60 days regardless of the particulars of the situation, and in some instances, 

this resulted in hurried investigations and adjudications, which sacrificed accuracy and 

fairness for speed. Proposed paragraph
47 

(b)(1)(v) specifies examples of possible reasons for such a delay, such as absence of the 

parties or witnesses, concurrent law enforcement activity, or the need for language 

assistance or accommodation of disabilities. For example, if a concurrent law enforcement 

investigation has uncovered evidence that the police plan to release on a specific timeframe 

and that evidence would likely be material to determining responsibility, a recipient could 

reasonably extend the timeframe of the grievance process in order to allow that evidence to 

be included in the final determination of responsibility. Any reason for a delay must be 

justified by good cause and communicated by written notice to the complainant and the 

respondent of the delay or extension and the reasons for the action; delays caused solely by 

administrative needs are insufficient to satisfy this standard. Moreover, recipients must 

meet their legal obligation to provide timely auxiliary aids and services and reasonable 

accommodations under Title II of the ADA, Section 504, and Title VI of the Civil Rights 

Act of 1964, and should reasonably consider other services such as meaningful access to 

language assistance.

It is important for individuals to have a clear understanding of the recipients’ policies and 

procedures related to sexual harassment, including the consequences of being found 

responsible for sexual harassment, and the procedures the recipient will use to make such a 

determination; otherwise, the parties may not have a full and fair opportunity to present 

evidence and arguments in favor of their side, and the accuracy and impartiality of the 

process could suffer as a result. Proposed paragraphs (b)(1)(vi) through (b)(1)(ix) would 

require that the parties be informed of the possible sanctions and remedies that may be 

implemented following the determination of responsibility, the standard of evidence to be 

used during the grievance process, the procedures and permissible bases for appeals if the 
48 

recipient offers an appeal, and the range of supportive measures available to complainants 

and respondents. These proposed provisions generally track the language in the Clery Act 

regulations at 34 CFR 668.46(k)(1) and would apply to all recipients subject to Title IX. 

The Department believes that requiring a recipient to notify the parties of these matters in 

advance is equally important at the elementary and secondary education level as it is at the 

postsecondary education level to ensure the parties are fully informed. 

B. Notice and investigation 

Section 106.45(b)(2) Notice of allegations 

Proposed Regulations: We propose adding section 106.45(b)(2) stating that upon receipt

of a formal complaint, a recipient must provide written notice to the parties of the 

recipient’s grievance procedures and of the allegations. Such notice must include sufficient 

details (such as the identities of the parties involved in the incident, if known, the specific 

section of the recipient’s policy allegedly violated, the conduct allegedly constituting sexual 

harassment under this part and under the recipient’s policy, and the date and location of the 

alleged incident, if known) and provide sufficient time to prepare a response before any 

initial interview. The written notice must also include a statement that the respondent is 

presumed not responsible for the alleged conduct and that a determination regarding 

responsibility is made at the conclusion of the grievance process. The notice must inform 

the parties that they may request to inspect and review evidence under section 

106.45(b)(3)(viii). Additionally, the notice must inform the parties of any provision in the 

recipient’s code of conduct that prohibits knowingly making false statements or knowingly 

submitting false information during the grievance process. Also, 
49 

if the recipient decides later to investigate allegations not included in the notice provided 

pursuant to paragraph (b)(2)(i)(B) of this section, the recipient must provide notice of the 

additional allegations to known parties. 

Reasons: To meaningfully participate in the process, all parties must have adequate

notice of the allegations and grievance procedures. Without the information included in the 

written notice required by proposed section 106.45(b)(2), a respondent would be unable to 

adequately respond to allegations. This notice will also ensure that the complainant is able 

to understand the grievance process, including what allegations are part of the investigation. 

The requirement to provide sufficient details (such as the identities of the parties involved 

in the incident, if known, the specific section of the recipient’s policy allegedly violated, the 

conduct allegedly constituting sexual harassment under this part and under the recipient’s 

policy, and the date and location of the alleged incident, if known) applies whenever a 

formal complaint is filed against a respondent, whether the complaint is signed by the 

complainant or by the Title IX Coordinator. The qualifier “if known” reflects that in some 

cases, a complainant may not know details that ideally would be included in the written 

notice, such as the identity of the respondent, or the date or location of the incident. If 

during the investigation the recipient learns these details then the recipient should promptly 

send the written notice as required by paragraph (b)(2)(i) to the now-identified respondent, 

as applicable, and/or inform the respondent of the details of allegations that were previously 

unknown (such as the date or location of the alleged incident). The unavailability of 

material details, particularly the identity of the respondent, may impede a recipient’s ability 

to investigate and thus impact whether the recipient’s response is deliberately indifferent. 

If, during the investigation, 
50 

the recipient decides to investigate additional allegations, the recipient must provide notice 

of those allegations to the parties. This notice would keep the parties meaningfully informed 

of any expansion in the scope of the investigation. It is also important for recipients to 

notify parties about any provisions in its code of conduct that prohibit knowingly making 

false statements or knowingly submitting false information during the grievance process so 

as to emphasize the recipients’ serious commitment to the truth- seeking nature of the 

grievance process and to incentivize honest, candid participation in it. 

Section 106.45(b)(3) Investigations of a formal complaint 

Proposed Regulations: We propose adding section 106.45(b)(3) stating that the recipient 

must conduct an investigation of the allegations in a formal complaint. Proposed section 

106.45(b)(3) also states that if the conduct alleged by the complainant would not constitute 

sexual harassment as defined in section 106.44(e) even if proved or did not occur within the 

recipient’s program or activity, the recipient must terminate its grievance process with 

regard to that conduct, and that when investigating a formal complaint, a recipient must— 

(i) Ensure that the burden of proof and the burden of gathering evidence sufficient to 

reach a determination regarding responsibility rest on the recipient and not on the parties;

(ii) Provide equal opportunity for the parties to present witnesses and other inculpatory 

and exculpatory evidence;

(iii) Not restrict the ability of either party to discuss the allegations under investigation or 

to gather and present relevant evidence;
51 

(iv) Provide the parties with the same opportunities to have others present during any 

grievance proceeding, including the opportunity to be accompanied to any related meeting 

or proceeding by the advisor of their choice, and not limit the choice of advisor or presence 

for either the complainant or respondent in any meeting or grievance proceeding; however, 

the recipient may establish restrictions regarding the extent to which the advisor may 

participate in the proceedings, as long as the restrictions apply equally to both parties;

(v) Provide to the party whose participation is invited or expected written notice of the 

date, time, location, participants, and purpose of all hearings, investigative interviews, or 

other meetings with a party, with sufficient time for the party to prepare to participate;

(vi) For recipients that are elementary and secondary schools, the recipient’s grievance 

procedures may require a live hearing. With or without a hearing, the decision-maker must, 

after the recipient has incorporated the parties’ responses to the investigative report under 

paragraph (b)(3)(ix) of this section, ask each party and any witnesses any relevant questions 

and follow-up questions, including those challenging credibility, that a party wants asked of 

any party or witnesses. If no hearing is held, the decision-maker must afford each party the 

opportunity to submit written questions, provide each party with the answers, and allow for 

additional, limited follow-up questions from each party. With or without a hearing, all 

questioning must exclude evidence of the complainant’s sexual behavior or predisposition, 

unless such evidence about the complainant’s sexual behavior is offered to prove that 

someone other than the respondent committed the conduct alleged by the complainant, or if 

the evidence concerns specific incidents of the complainant’s sexual behavior with respect

to the respondent and is offered to prove consent. The
52 

decision-maker must explain to the party proposing the questions any decision to exclude 

questions as not relevant; 

(vii) For institutions of higher education, the recipient’s grievance procedure must 

provide for a live hearing. At the hearing, the decision-maker must permit each party to ask 

the other party and any witnesses all relevant questions and follow-up questions, including 

those challenging credibility. Such cross-examination at a hearing must be conducted by the 

party’s advisor of choice, notwithstanding the discretion of the recipient under paragraph 

(b)(3)(iv) of this section to otherwise restrict the extent to which advisors may participate in 

the proceedings. If a party does not have an advisor present at the hearing, the recipient 

must provide that party an advisor aligned with that party to conduct cross-examination. All 

cross-examination must exclude evidence of the complainant’s sexual behavior or 

predisposition, unless such evidence about the complainant’s sexual behavior is offered to 

prove that someone other than the respondent committed the conduct alleged by the 

complainant, or if the evidence concerns specific incidents of the complainant’s sexual 

behavior with respect to the respondent and is offered to prove consent. At the request of 

either party, the recipient must provide for cross-examination to occur with the parties 

located in separate rooms with technology enabling the decision-maker and parties to 

simultaneously see and hear the party answering questions. The decision-maker must 

explain to the party’s advisor asking cross-examination questions any decision to exclude 

questions as not relevant. If a party or witness does not submit to cross-examination at the 

hearing, the decision-maker must not rely on any statement of that party or witness in 

reaching a determination regarding responsibility;
53 

(viii) Provide both parties an equal opportunity to inspect and review evidence obtained 

as part of the investigation that is directly related to the allegations raised in a formal 

complaint, including the evidence upon which the recipient does not intend to rely in 

reaching a determination regarding responsibility, so that each party can meaningfully 

respond to the evidence prior to conclusion of the investigation. Prior to completion of the 

investigative report, the recipient must send to each party and the party’s advisor, if any, the 

evidence subject to inspection and review in an electronic format, such as a file sharing 

platform, that restricts the parties and advisors from downloading or copying the evidence, 

and the parties shall have at least ten days to submit a written response, which the 

investigator will consider prior to completion of the investigative report. The recipient must 

make all such evidence subject herein to the parties’ inspection and review available at any 

hearing to give each party equal opportunity to refer to such evidence during the hearing, 

including for purposes of cross-examination; and

(ix) Create an investigative report that fairly summarizes relevant evidence and, at least 

ten days prior to a hearing (if a hearing is required under section 106.45) or other time of 

determination regarding responsibility, provide a copy of the report to the parties for their 

review and written response. 

Reasons: Proposed section 106.45(b)(3) would set forth specific standards to govern 

investigations of formal complaints of sexual harassment. To ensure a recipient’s resources 

are directed appropriately at handling complaints of sexual harassment, proposed paragraph 

(b)(3) would require recipients to dismiss a formal complaint or an allegation within a 

complaint without conducting an investigation if the alleged conduct, taken as true, is not 

sexual harassment as defined in the proposed regulations or if the 
54 

conduct did not occur within the recipient’s program or activity. This ensures that only 

conduct covered by Title IX is treated as a Title IX issue in a school’s grievance process. 

The Department emphasizes that a recipient remains free to respond to conduct that does 

not meet the Title IX definition of sexual harassment, or that did not occur within the 

recipient’s program or activity, including by responding with supportive measures for the 

affected student or investigating the allegations through the recipient’s student conduct 

code, but such decisions are left to the recipient’s discretion in situations that do not involve 

conduct falling under Title IX’s purview. 

Proposed paragraph (b)(3)(i) would place the burden of proof and the burden of gathering 

evidence sufficient to reach a determination regarding responsibility on the recipient, not on 

the parties. Recipients, not complainants or respondents, must comply with Title IX, so the 

burden of gathering evidence relating to allegations of sexual harassment under Title IX 

and determining whether the evidence shows responsibility appropriately falls to the 

recipient. Although a school could contract with a third-party agent to perform an 

investigation or otherwise satisfy its responsibilities under this section, including to gather 

evidence, the recipient will be held to the same standards under this section regardless of 

whether those responsibilities are performed by the recipient directly through its employees 

or through a third party such as a contractor. Likewise, although schools will often report 

misconduct under this section to the appropriate authorities, including as required under 

state law, a report to police or the presence of a police investigation regarding misconduct 

under this section does not relieve a recipient of its obligations under this section. Nothing 

in the proposed regulation prevents a recipient from using evidence merely because it was 

collected by law enforcement.

With the goal of ensuring fairness and equity for all parties throughout the investigation 
55 

process, proposed paragraphs (b)(3)(ii), (b)(3)(iii), (b)(3)(iv), and (b)(3)(viii) would require 

recipients to provide the parties with an equal opportunity to present witnesses and other 

inculpatory and exculpatory evidence; permit the parties to discuss the investigation; 

provide the parties with the same opportunities to have others present during any grievance 

proceeding, including the opportunity to be accompanied by an advisor of their choice with 

any restrictions on the advisor’s participation being applied equally to both parties; provide 

the parties with equal opportunity to inspect and review any evidence obtained as part of the 

investigation that is directly related to the allegations raised in a formal complaint, 

including the evidence upon which the recipient does not intend to rely in reaching a 

determination regarding responsibility; equal opportunity to respond to such evidence; and 

equal opportunity to refer to such evidence during the hearing, including for purposes of 

cross-examination. Because both parties can review and respond to this evidence, discuss 

the investigation with others in order to identify additional evidence, introduce any 

additional evidence into the proceeding, and receive guidance from an advisor of their 

choice throughout, the process will be substantially more thorough and fair and the resulting 

outcomes will be more reliable. Proposed paragraph (b)(3)(iv) generally tracks the language 

in the Clery Act regulations at 34 CFR 688.46(k)(2)(iii) and (iv) and would apply to all 

recipients subject to Title IX. And, proposed paragraph (b)(3)(viii) is consistent with the 

Family Educational Rights and Privacy Act (FERPA), under which a student has a right to 

inspect and review records that directly relate to that student. The Department believes that 

permitting both parties to be accompanied by an advisor or other individual of their choice 

(who may be an attorney) is also important at the elementary and secondary education level 

to ensure that both parties are treated equitably. 

To ensure that the complainant and respondent are able to meaningfully participate in the 
56 

process and that any witnesses have adequate time to prepare, proposed section 

106.45(b)(3)(v) would require recipients to provide to the party whose participation is 

invited or expected written notice of all hearings, investigative interviews, or other meetings 

with a party, with sufficient time for the party to prepare to participate in the proceeding. 

Without this protection, a party’s ability to participate in a hearing, interview, or meeting 

might not be meaningful or add any value to the proceeding. The Department believes that 

this proposed provision, which is similar to the Clery Act regulation at 34 CFR 

688.46(k)(3)(i)(B) with respect to timely notice of meetings, is equally important at the 

elementary and secondary education level and the postsecondary education level to ensure 

that both parties are treated equitably.

Cross examination is the “greatest legal engine ever invented for the discovery of truth.” 

California v. Green, 399 U.S. 149, 158 (1970) (quoting John H. Wigmore, 5 Evidence § 

1367, at 29 (3d ed., Little, Brown & Co. 1940)). The Department recognizes the high stakes 

for all parties involved in a sexual harassment investigation, and recognizes that the need 

for recipients to reach reliable determinations lies at the heart of Title IX’s guarantees for 

all parties. Indeed, at least one federal circuit court has held that in the Title IX context 

cross-examination is not just a wise policy, but is a Constitutional requirement of Due 

Process. Doe v. Baum, 903 F.3d 575, 581 (6th Cir. 2018) (“Not only does crossexamination allow the accused to identify inconsistencies in the other side’s story, but it

also gives the fact-finder an opportunity to assess a witness’s demeanor and 
57 

determine who can be trusted”).

The Department has carefully considered how best to incorporate the value of crossexamination for proceedings at both the postsecondary level and the elementary and 

secondary level. Because most parties and many witnesses are minors in the elementary and 

secondary school context, sensitivities associated with age and developmental ability may 

outweigh the benefits of cross-examination at a live hearing. Proposed section 

106.45(b)(3)(vi) allows – but does not require - elementary and secondary schools to hold a 

live hearing as part of their grievance procedures. With or without a hearing, the 

complainant and the respondent must have an equal opportunity to pose questions to the 

other party and to witnesses prior to a determination of responsibility, with each party being 

permitted the opportunity to ask all relevant questions and follow-up questions, including 

those challenging credibility, and a requirement that the recipient explain any decision to 

exclude questions on the basis of relevance. If no hearing is held, each party must have the 

opportunity to conduct its questioning of other parties and witnesses by submitting written 

questions to the decision-maker, who must provide the answers to the asking party and 

allow for additional, limited follow-up questions from each party. 

In contrast, the Department has determined that at institutions of higher education, where 

most parties and witnesses are adults, grievance procedures must include live crossexamination at a hearing. Proposed section 106.45(b)(3)(vii) requires institutions to provide 

a live hearing, and to allow the parties’ advisors to cross-examine the other party and 

witnesses. If a party does not have an advisor at the hearing, the recipient must provide that 

party an advisor aligned with that party to conduct cross-examination. Cross- examination 

conducted by the parties’ advisors (who may be attorneys) must be permitted 

notwithstanding the discretion of the recipient under subsection 106.45(b)(3)(iv) to 
58 

otherwise restrict the extent to which advisors may participate in the proceedings. In the 

context of institutions of higher education, the proposed regulation balances the importance 

of cross-examination with any potential harm from personal confrontation between the 

complainant and the respondent by requiring questions to be asked by an advisor aligned 

with the party. Further, the proposed regulation allows either party to request that the 

recipient facilitate the parties being located in separate rooms during cross-examination 

while observing the questioning live via technological means. The proposed regulations 

thereby provide the benefits of cross-examination while avoiding any unnecessary trauma 

that could arise from personal confrontation between the complainant and the respondent. 

Cf. Baum, 903 F.3d at 583 (“Universities have a legitimate interest in avoiding procedures 

that may subject an alleged victim to further harm or harassment. And in sexual misconduct 

cases, allowing the accused to cross- examine the accuser may do just that. But in 

circumstances like these, the answer is not to deny cross-examination altogether. Instead, 

the university could allow the accused student’s agent to conduct cross-examination on his 

behalf. After all, an individual aligned with the accused student can accomplish the benefits 

of cross-examination—its adversarial nature and the opportunity for follow-up—without 

subjecting the accuser to the emotional trauma of directly confronting her alleged

attacker.”).

In addition, proposed sections 106.45(b)(3)(vi) and (vii) would set forth a standard for when 

questions regarding a complainant’s sexual behavior may be asked, applicable to all 

recipients. These sections incorporate language from (and are in the spirit of) the rape shield 

protections found in Federal Rule of Evidence 412, which is intended to safeguard 
59 

complainants against invasion of privacy, potential embarrassment, and stereotyping. 

See Fed. R. Evid. 412 Advisory Committee’s Note. As the Court has explained, rape shield 

protections are intended to protect complainants “from being exposed at trial to harassing or 

irrelevant questions concerning their past sexual behavior.” Michigan v. Lucas, 500 U.S. 

145, 146 (1991). Similarly, proposed sections 106.45(b)(3)(vi) and (vii) would prevent 

harassing or irrelevant questions about a complainant’s sexual behavior or predisposition 

from being asked. Importantly, these proposed paragraphs also ensure that questions about 

a complainant’s sexual behavior can be asked to prove that someone other than the 

respondent committed the conduct alleged by the complainant, or when evidence about 

specific incidents of the complainant’s sexual behavior with respect to the respondent is 

offered to prove consent. Federal Rule of Evidence 412 applies these exceptions to the 

general prohibition against asking about a complainant’s sexual behavior, and for the same 

reasons, such exceptions promote truth-seeking in campus proceedings. 

To maintain a transparent process, the parties need a complete understanding of the 

evidence obtained by the recipient and how a determination regarding responsibility is 

made. For that reason, proposed section 106.45(b)(3)(viii) would require recipients to 

provide both parties an equal opportunity to inspect and review any evidence obtained as 

part of the investigation that is directly related to the allegations raised in a formal 

complaint, including evidence upon which the recipient does not intend to rely in making a 

determination regarding responsibility. The evidence must also be provided electronically 

and the parties must be given at least ten days to submit a written response; these 

requirements will facilitate each party’s ability to identify evidence that supports
60 

their position and emphasize such evidence in their arguments to the decision-maker. The 

scope of the parties’ right to inspect and review evidence collected by the recipient is 

consistent with students’ privacy rights under FERPA, under which a student has a right to 

inspect and review records that directly relate to that student.

Proposed section 106.45(b)(3)(ix) would require recipients to create an investigative report 

that summarizes relevant evidence and provide a copy of the report to the parties, allowing 

both parties at least ten days prior to any hearing or other time of determination regarding 

responsibility the opportunity to respond in writing to the report. These requirements will 

put the parties on the same level in terms of access to information to ensure that both parties 

participate in a fair, predictable process that will allow the parties to serve as a check on any 

decisions the recipient makes regarding the inclusion or relevance of evidence. 

Notwithstanding the foregoing rights of the parties to review and respond to the evidence 

collected by the recipient, the recipient must at all times proceed with the burden of 

conducting the investigation into all reasonably available, relevant evidence; the burden of 

collecting and presenting evidence should always remain on the recipient and not on the 

parties.

C. Standard of evidence

Section 106.45(b)(4)(i) 

Proposed Regulations: We propose adding section 106.45(b)(4)(i) stating that in reaching 

a determination regarding responsibility, the recipient must apply either the preponderance 

of the evidence standard or the clear and convincing evidence standard. The recipient may, 

however, employ the preponderance of the evidence standard only if 
61 

the recipient uses that standard for conduct code violations that do not involve sexual 

harassment but carry the same maximum disciplinary sanction. The recipient must also 

apply the same standard of evidence for complaints against students as it does for 

complaints against employees, including faculty. 

Reasons: The statutory text of Title IX does not dictate a standard of evidence to be used

by recipients in investigations of sexual harassment. Past guidance from the Department 

originally allowed recipients to choose which standard to employ, but was later changed to 

require recipients to use only the preponderance of the evidence. When the Department 

issued guidance requiring recipients to use only preponderance of the evidence, it justified 

the requirement by comparing the grievance process to civil litigation, and to the 

Department’s own process for investigating complaints against recipients under Title IX. 

Although it is true that civil litigation generally uses preponderance of the evidence, and 

that Title IX grievance processes are analogous to civil litigation in many ways, it is also 

true that Title IX grievance processes lack certain features that promote reliability in civil 

litigation. For example, many recipients will choose not to allow active participation by 

counsel; there are no rules of evidence in Title IX grievance processes; and Title IX 

grievance processes do not afford parties discovery to the same extent required by rules of 

civil procedure. 

Moreover, Title IX grievance processes are also analogous to various kinds of civil 

administrative proceedings, which often employ a clear and convincing evidence standard. 

See, e.g., Nguyen v. Washington Dept. of Health, 144 Wash. 2d 516 (2001) (requiring clear 

and convincing evidence in sexual misconduct case in a professional 
62 

disciplinary proceeding for a medical doctor as a way of protecting due process); 

Disciplinary Counsel v. Bunstine, 136 Ohio St. 3d 276 (2013) (clear and convincing 

evidence applied in sexual harassment case involving lawyer). These cases recognize that, 

where a finding of responsibility carries particularly grave consequences for a respondent’s 

reputation and ability to pursue a profession or career, a higher standard of proof can be 

warranted. Indeed, one court has held that in student disciplinary cases involving serious 

accusations like sexual assault where the consequences of a finding of responsibility would 

be significant, permanent, and far-reaching, a preponderance of the evidence standard is 

inadequate. Lee v. University of New Mexico, No. 1:17-cv-01230- JB-LF (D. N.M. Sept. 20, 

2018) (“Moreover, the Court concludes that preponderance of the evidence is not the proper 

standard for disciplinary investigations such as the one that led to Lee’s expulsion, given 

the significant consequences of having a permanent notation such as the one UNM placed 

on Lee’s transcript”).

After considering this issue, the Department decided that its proposed regulation should 

leave recipients with the discretion to use either a preponderance or a clear and convincing 

standard in their grievance procedures. The Department does not believe it would be 

appropriate to impose a preponderance requirement in the absence of all of the features of 

civil litigation that are designed to promote reliability and fairness. Likewise, the 

Department believes that in light of the due process and reliability protections afforded 

under the proposed regulations, it could be reasonable for recipients to choose the 

preponderance standard instead of the clear and convincing standard, and thus, it is 

appropriate for the Department to give them the flexibility to do so. 
63 

To ensure that recipients do not single out respondents in sexual harassment matters for 

uniquely unfavorable treatment, a recipient would only be allowed to use the preponderance 

of the evidence standard for sexual harassment complaints if it uses that standard for other 

conduct code violations that carry the same potential maximum sanction as the recipient 

could impose for a sexual harassment conduct code violation. Likewise, to avoid the 

specially disfavored treatment of student respondents in comparison to respondents who are 

employees such as faculty members, who often have superior leverage as a group in 

extracting guarantees of protection under a recipient’s disciplinary procedures, recipients 

are also required to apply the same standard of evidence for complaints against students as 

they do for complaints against employees, including faculty. In contrast, because of the 

heightened stigma often associated with a complaint regarding sexual harassment, the 

proposed regulation gives recipients the discretion to impose a clear and convincing 

evidence standard with regard to sexual harassment complaints even if other types of 

complaints are subject to a preponderance of the evidence standard. Within these 

constraints, the proposed regulation recognizes that recipients should be able to choose a 

standard of proof that is appropriate for investigating and adjudicating complaints of sex 

discrimination given the unique needs of their community.

D. Additional requirements for grievance procedures

Section 106.45(b)(4) Determination regarding responsibility 

Proposed Regulations: We propose adding section 106.45(b)(4) stating that the decisionmaker(s), who cannot be the same person(s) as the Title IX Coordinator or the 
64 

investigator(s), must issue a written determination regarding responsibility applying the 

appropriate standard of evidence as discussed above. 

The written determination must include— 

(A) Identification of the section(s) of the recipient’s code of conduct alleged to have been 

violated;

(B) A description of the procedural steps taken from the receipt of the complaint through 

the determination, including any notifications to the parties, interviews with parties and 

witnesses, site visits, methods used to gather other evidence, and hearings held;

(C) Findings of fact supporting the determination;

(D) Conclusions regarding the application of the recipient’s policy to the facts;

(E) A statement of, and rationale for, the result as to each allegation, including a determination 

regarding responsibility, any sanctions the recipient imposes on the respondent, and any remedies 

provided to the complainant designed to restore or preserve access to the recipient’s education 

program or activity; and 

(F) The recipient’s procedures and permissible bases for the complainant and respondent to appeal.

The recipient must provide the written determination to the parties simultaneously. If the 

recipient does not offer an appeal, the determination regarding responsibility becomes final 

on the date that the recipient provides the parties with the written determination. If the 

recipient offers an appeal, the determination regarding responsibility becomes final at either 

the conclusion of the appeal process, if an appeal is filed, or, if an appeal is not filed, the 

date on which an appeal would no longer be considered timely. 
65 

Reasons: Proposed section 106.45(b)(4) would address the process that recipients use to 

make determinations regarding responsibility, with requirements designed to ensure that 

recipients make sound and supportable decisions through a process that incorporates 

appropriate protections for all parties while providing adequate notice of such decisions. 

Requiring the decision-maker to be different from any person who served as the Title IX 

Coordinator or investigator forecloses a recipient from utilizing a “single investigator” or 

“investigator-only” model for Title IX grievance processes. The Department believes that 

fundamental fairness to both parties requires that the intake of a report and formal 

complaint, the investigation (including party and witness interviews and collection of 

documentary and other evidence), drafting of an investigative report, and ultimate decision 

about responsibility should not be left in the hands of a single person. Rather, after the 

recipient has conducted its impartial investigation, a separate decision-maker must reach the 

determination regarding responsibility; that determination can be made by one or more 

decision-makers (e.g., a panel), but no decision-maker can be the same person who served 

as the Title IX Coordinator or investigator. 

To foster reliability and thoroughness and to ensure that a recipient’s findings are 

adequately explained, proposed section 106.45(b)(4)(i) would require recipients to issue a 

written determination regarding responsibility. So that the parties have a complete 

understanding of the process and information considered by the recipient to reach its 

decision, proposed section 106.45(b)(4)(ii) would require the notice of determination to 

include: the sections of the recipient’s code of conduct alleged to have been violated; the 

procedural steps taken from the receipt of the complaint through the determination; findings 

of fact supporting the determination; conclusions regarding the application of the 
66 

recipient’s policy to the facts; a statement of, and the recipient’s rationale for, the result, 

including a determination regarding responsibility; any sanctions the recipient imposes on 

the respondent; and information regarding the appeals process and the recipient’s 

procedures and permissible bases for the complainant and respondent to appeal. 

Proposed section 106.45(b)(4)(ii)(E) requires that the written determination contain a 

statement of, and rationale for, the result, including any sanctions imposed by the recipient 

and any remedy given to the complainant. Proposed section 106.45(b)(4)(iii) requires that 

this written determination be provided simultaneously to the parties. These provisions 

generally track the language of the Clery Act regulations at 34 CFR 668.46(k)(2)(v) and 

(3)(iv) already applicable to institutions of higher education. The Department believes that 

the benefits of these provisions, including promoting transparency and equal treatment of 

the parties, are equally applicable at the elementary and secondary level.

Proposed section 106.45(b)(4)(iii) instructs recipients to provide the written determination 

simultaneously to both parties so that both parties know the outcome and, if an appeal is 

available, both parties have equal opportunity to consider filing an appeal. If the recipient 

does not offer an appeal, the determination regarding responsibility becomes final on the 

date that the recipient provides the parties with the written determination. If the recipient 

offers an appeal, the determination regarding responsibility becomes final when the appeal 

process is concluded, or if no appeal is filed, on the date on which an appeal would not be 

timely under the recipient’s designated time frames. Once the determination regarding

responsibility has become final, in cases where the 
67 

respondent is found responsible, the recipient must promptly implement remedies designed 

to help the complainant maintain equal access to the recipient’s educational programs, 

activities, benefits, and opportunities. In cases where the respondent is found not 

responsible, no remedies are required for the complainant, although a recipient may 

continue to offer supportive measures to either party. 

Section 106.45(b)(5) Appeals 

Proposed Regulations: We propose adding section 106.45(b)(5) stating that a recipient 

may choose to offer an appeal. If a recipient offers an appeal, it must allow both parties to 

appeal. In cases where there has been a finding of responsibility, although a complainant 

may appeal on the ground that the remedies are not designed to restore or preserve the 

complainant’s access to the recipient’s education program or activity, a complainant is not 

entitled to a particular sanction against the respondent. As to all appeals, the recipient must: 

(i) notify the other party in writing when an appeal is filed and implement appeal 

procedures equally for both parties; (ii) ensure that the appeal decision-maker is not the 

same person as any investigator(s) or decision-maker(s) that reached the determination 

regarding responsibility; (iii) ensure that the appeal decision-maker complies with the 

standards set forth in section 106.45(b)(1)(iii); (iv) give both parties a reasonable, equal 

opportunity to submit a written statement in support of, or challenging, the outcome; (v) 

issue a written decision describing the result of the appeal and the rational for the result; 

and (vi) provide the written decision simultaneously to both parties.

Reasons: Many recipients offer an appeal from the outcome of a Title IX grievance

process. After extensive stakeholder engagement on the subject of school-level appeals, the 

Department believes that by offering that opportunity to both parties, recipients will
68 

be more likely to reach sound determinations, giving the parties greater confidence in the 

ultimate outcome. Complainants and respondents have different interests in the outcome of 

a sexual harassment complaint. Complainants “have a right, and are entitled to expect, that 

they may attend [school] without fear of sexual assault or harassment,” while for 

respondents a “finding of responsibility for a sexual offense can have a lasting impact on a 

student’s personal life, in addition to [the student’s] educational and employment 

opportunities[.]” Doe v. Univ. of Cincinnati, 872 F.3d 393, 400, 403 (6th Cir. 2017) 

(internal quotation marks and citations omitted). Although these interests differ, each 

represents high-stakes, potentially life-altering consequences deserving of an accurate 

outcome. See id. at 404 (recognizing that the complainant “deserves a reliable, accurate 

outcome as much as” the respondent). The Department proposes that where a recipient 

offers an appeal, such appeal should be equally available to both parties, reflecting that each 

party has an important stake in the reliability of the outcome. Importantly, the proposed 

regulation notes that in cases where there has been a finding of responsibility, although a 

complainant may appeal on the ground that the remedies are not designed to restore or 

preserve the complainant’s access to the recipient’s education program or activity, a 

complainant is not entitled to a particular sanction against the respondent. See e.g., Davis, 

526 U.S. at 648 (“the dissent erroneously imagines that victims of peer harassment now 

have a Title IX right to make particular remedial demands.”); Stiles ex rel. D.S. v. Grainger 

Co., Tenn., 819 F.3d 834, 848 (6th Cir. 2016) (“Title IX does not give victims a right to 

make particular remedial demands.”) (internal quotations omitted); Sanches v. CarrolltonFarmers Branch Indep. Sch. Dist., 647 F.3d 156, 167-68 (5th Cir. 2011) (“Schools are not 

required to . . . accede to a parent’s remedial demands”) (internal
69 

citations omitted). 

Similarly to the initial investigation and adjudication, the recipient must ensure that any 

appeal process is conducted in a timely manner and gives both parties an equal opportunity 

to argue for or against the outcome. Like any of the recipient’s Title IX Coordinators, 

investigators, or decision-makers, the appeal decision-maker must be free from bias or 

conflicts of interest, and must be trained on the definition of sexual harassment and the 

recipient’s grievance process using training materials that promote impartial decisionmaking and are free from sex stereotypes. When designating reasonable timeframes for the 

filing and resolution of appeals, recipients should endeavor to permit parties sufficient time 

to file an appeal and submit written arguments, yet resolve the appeal process as 

expeditiously as possible to provide finality of the grievance process for the benefit of all 

parties.

Section 106.45(b)(6) Informal resolution 

Proposed Regulations: We propose adding section 106.45(b)(6) stating that at any time 

prior to reaching a determination regarding responsibility the recipient may facilitate an 

informal resolution process, such as mediation, that does not involve a full investigation and 

adjudication, provided that the recipient provides to the parties a written notice disclosing— 

(A) The allegations;

(B) The requirements of the informal resolution process including the circumstances 

under which it precludes the parties from resuming a formal complaint arising from the 

same allegations, if any; and

(C) Any consequences resulting from participating in the informal resolution process, 

including the records that will be maintained or could be shared.
70 

The recipient must also obtain the parties’ voluntary, written consent to the informal 

resolution process. 

Reasons: As mentioned previously, the proposed regulations reflect the Department’s recognition 

that recipients’ good judgment and common sense are important elements of a response to sex 

discrimination that meets the requirements of Title IX. The Department also recognizes that in 

responding to sexual harassment, it is important to take into account the needs of the parties 

involved in each individual case, some of whom may prefer not to go through a formal complaint 

process. Recognizing these factors, proposed section 106.45(b)(6) would permit recipients to 

facilitate an informal resolution process of an allegation of sexual harassment at any time prior to 

issuing a final determination regarding responsibility, if deemed appropriate by the recipient and 

the parties. To ensure that the parties do not feel forced into an informal resolution by a recipient, 

and to ensure that the parties have the ability to make an informed decision, proposed paragraph 

(b)(6)(i) would require recipients to inform the parties in writing of the allegations, the 

requirements of the informal resolution process, and any consequences resulting from 

participating in the informal process. For example, the recipient would need to explain to the 

parties if one or more available informal resolution options would become binding on the parties 

at any point, as is often the case with arbitration-style processes, or if the process would remain 

non-binding throughout, as is often the case with mediation-style processes. Informal resolution 

options may lead to more favorable outcomes for everyone involved, depending upon factors 

such as the age, developmental level, and other capabilities of the parties; the knowledge, 

skills, and experience level of those facilitating or conducting the informal resolution process; the 

severity of the misconduct alleged; and likelihood of recurrence of the misconduct. Proposed 

paragraph (b)(6)(ii) would require the recipient to obtain voluntary, written consent from the 

parties in advance of any informal resolution process in order to ensure that no party is 
71 

involuntarily denied the protections that would otherwise be provided by these regulations. 

Section 106.45(b)(7) Recordkeeping 

Proposed Regulations: We propose adding section 106.45(b)(7) stating that a recipient must 

create, make available to the complainant and respondent, and maintain for a period of three 

years records of— 

(A) The sexual harassment investigation, including any determination regarding 

responsibility, disciplinary sanctions imposed on the respondent, and remedies provided to 

the complainant; 

(B) Any appeal and the result therefrom;

(C) Informal resolution, if any; and\ 

(D) All materials used to train coordinators, investigators, decision-makers with regard to 

sexual harassment.

This provision would also provide that a recipient must create and maintain for a period of 

three years records of any actions, including any supportive measures, taken in response to 

a report or formal complaint of sexual harassment. In each instance, the recipient must 

document the basis for its conclusion that its response was not clearly unreasonable, and

document that it has taken measures designed to restore or preserve
72 

access to the recipient’s educational program or activity. The documentation of certain 

bases or measures does not limit the recipient in the future from providing additional 

explanations or detailing additional measures taken. 

Reasons: To ensure that the parties, the Department, and recipients have access to relevant 

information for an appropriate period of time following the completion of the grievance 

procedure process, proposed section 106.45(b)(7) would address the recordkeeping requirements 

related to formal complaints of sexual harassment with which recipients must comply. These 

requirements would benefit complainants and respondents by empowering them to more 

effectively hold their recipient schools and institutions accountable for Title IX compliance by 

ensuring the existence of records that could be used during an investigation by the Department or 

in private litigation. We believe the required three-year retention period is sufficient to allow the 

Department and the parties to ensure compliance with the proposed regulations, but we 

specifically seek comment on the appropriate period for retention in a directed question below. 

During the record retention period, these records would continue to be subject to the applicable 

provisions of FERPA, as discussed below. 

III. Clarifying amendments to existing regulations 

Remedial and affirmative action and self-evaluation (Current section 106.3(a) and 

Proposed section 106.3(a)) 

Statute: The statute does not directly address the issue of particular types of remedies, beyond the 

statement that compliance may be effected by a withdrawal of federal funding or “by any other 

means authorized by law.” 20 U.S.C. 1682. The Secretary has the authority to regulate with 

regard to discrimination on the basis of sex in education programs or activities receiving 

federal financial assistance specifically under 20 U.S.C. 1682 and generally under 20 U.S.C. 

1221e-3 and 3474. 
73 

Current Regulations: Current section 106.3(a) provides that if the Assistant Secretary for 

Civil Rights finds that a recipient has discriminated against a person on the basis of sex in 

an education program or activity, the recipient shall be required to take remedial action that 

the Assistant Secretary deems necessary “to overcome the effects of such discrimination.”

Proposed Regulations: We propose modifying the language to apply to any violation of part 

106 and adding language to section 106.3(a) stating that the remedial action deemed 

necessary by the Assistant Secretary shall not include assessment of damages.

Reasons: The proposed changes would clarify, consistent with the Supreme Court’s case law in 

this area and mindful of the difference between a private right of action opening the door to 

damages assessed by a court and the Department’s role administratively enforcing Title IX 

without express statutory authority to collect damages, that the Assistant Secretary shall not 

assess damages against a recipient. Gebser, 524 U.S. at 288– 89 (“While agencies have 

conditioned continued funding on providing equitable relief to the victim, the regulations do not 

appear to contemplate a condition ordering payment of monetary damages, and there is no 

indication that payment of damages has been demanded as a condition of finding a recipient to be 

in compliance with the statute”) (internal citation omitted).

For example, if a student entitled to speech therapy under her Individualized Education 

Program (IEP) complains that a school district did not provide the therapy, the Department 

may permissibly require that the school district reimburse the parents for 
74 

their reasonable and documented expenses for obtaining services that that the school district 

was required to provide. Cf. Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 370 

(1985) (“[T]he Town repeatedly characterizes reimbursement as ‘damages,’ but that simply 

is not the case. Reimbursement merely requires the Town to belatedly pay expenses that it 

should have paid all along and would have borne in the first instance had it developed a

proper IEP.”). Likewise, in the context of Title IX, if a recipient allowed male students with 

athletic scholarships to retain their scholarships even if they are removed from the team or 

stop participating on the team, but did not allow female students the same ability to retain 

their scholarship, the Department could require a recipient to come into compliance with 

Title IX by restoring the relevant scholarship, even though the restoration will require the 

payment of monies by the recipient. See, e.g., Romeo Community Schools v. United States 

Dep’t of Health, Education & Welfare, 600 F.2d 581, 583 (6th Cir. 1979) (emphasis added) 

(“Romeo received a letter from the regional director of HEW demanding that it alter its 

practices with respect to pregnancy leave to conform to § 86.57(c) and reimburse and adjust 

the salaries and retirement credits of any employees who had not been permitted to use 

accrued sick leave while on pregnancy related leave since June 23, 1972. The letter from 

HEW also required assurances from Romeo that it would comply with § 86.57, and that 

reimbursement had been made.”). Thus, in those narrow instances where a failure to pay a 

specific amount for a specific purpose constitutes the crux of the violation, the resolution 

can include a monetary payment and still be an equitable remedy squarely tied to the 

violation the Department identified. Notably, this proposed modification does not affect the 

Department’s statutory authority to suspend or terminate federal funding from a recipient
75 

that has violated Title IX and refused to come into compliance. 

Effect of other requirements and preservation of rights (Current section 106.6 and 

Proposed section 106.6) 

Statute: The statute does not directly address the effect of other requirements or the preservation 

of rights. The Secretary has the authority to regulate with regard to discrimination on the basis of 

sex in education programs or activities receiving federal financial assistance specifically under 20 

U.S.C. 1682 and generally under 20 U.S.C. 1221e-3 and 3474. 

Current Regulations: Current section 106.6 provides that the obligations under the Title 

IX regulations do not alter obligations not to discriminate on the basis of sex under other 

specified laws and Executive Orders, and the obligation to comply with Title IX is not 

obviated or alleviated by State or local laws or by a rule or regulation of any organization, 

club, or league.

Section 106.6(d) Constitutional protections 

Proposed Regulations: We are proposing to add paragraph (d) to section 106.6 to affirm 

that nothing in 34 CFR part 106 requires a recipient to: restrict any rights that are protected 

from governmental action by the First Amendment of the U.S. Constitution; deprive an 

individual of rights that would otherwise be protected from governmental action under the 

Due Process Clauses of the Fifth and Fourteenth Amendments; or restrict any other rights 

guaranteed against governmental action by the U.S. Constitution.

Reasons: Despite the language in current section 106.6 and the discussions in Department 

guidance regarding the due process protections for public school students and employees and free 

speech rights under the First Amendment (2001 Guidance at 22) there appears to be significant 

confusion regarding the intersection of individuals’ rights under the U.S. Constitution with a 

recipient’s obligations under Title IX. In particular, during listening sessions the Department 
76 

heard concerns that Title IX enforcement has had a chilling effect on free speech. We are 

proposing to add paragraph (d) to clarify that nothing in these regulations requires a recipient to 

infringe upon any individual’s rights protected under the First Amendment or the Due Process 

Clauses, or other any other rights guaranteed by the U.S. Constitution. The language also makes 

it clear that, under the Title IX regulations, recipients – including private recipients – are not 

obligated by Title IX to restrict speech or other behavior that the federal government could not 

restrict directly. Consistent with Supreme Court case law, the government may not compel 

private actors to restrict conduct that the government itself could not constitutionally restrict. See 

e.g., Peterson v. City of Greenville, 373 U.S. 244 (1963); Truax v. Raich, 239 U.S. 33, 38 (1915). 

Thus, recipients that are private entities are not required by Title IX or its regulations to restrict 

speech or other behavior that would be protected against restriction by governmental entities. 

This protection against governmental restrictions on constitutional rights applies to all the civil 

rights laws that Department enforces, but we are adding paragraph (d) to the Title IX regulations 

because the issue arises frequently in the context of sexual harassment. When the Department 

enforces Title IX and its accompanying regulations, the constitutional rights of individuals 

involved in a recipient’s grievance process will always be considered and protected.

Section 106.6(e) Interaction with FERPA 

Proposed Regulations: We are also proposing to add paragraph (e) to section 106.6 to clarify that 

obligations under this part are not obviated or alleviated by the requirements in the FERPA 

statute or regulations. 

Reasons: In 1994, as part of the Improving America’s Schools Act, Congress amended 

the General Education Provisions Act (GEPA), of which FERPA is a part, to state that 

nothing in GEPA “shall be construed to affect the applicability of . . . title IX of the 

Education Amendments of 1972 . . . .” 20 U.S.C. 1221(d). The proposed regulations under 
77 

Title IX should be read to be consistent with a recipient’s obligations under FERPA. 

Section 106.6(f) Interaction with Title VII 

Proposed Regulations: We are also proposing to add paragraph (f) to section 106.6 to clarify that 

nothing in the proposed regulations shall be read in derogation of an employee’s rights under 

Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. and its implementing

regulations. 

Reasons: Employees of a school may have rights under both Title IX and Title VII. To the extent 

that any rights, remedies, or procedures differ under Title IX and Title VII, this provision clarifies 

that nothing about the proposed regulations is intended to diminish, restrict, or lessen any rights 

an employee may have against his or her school under Title VII. 

Designation of coordinator, dissemination of policy, adoption of grievance procedures 

(Current sections 106.8 and 106.9 and Proposed section 106.8) 

Statute: The statute does not directly address the designation of a Title IX Coordinator, the 

dissemination of policy, or the adoption of grievance procedures. The Secretary has 

the authority to regulate with regard to discrimination on the basis of sex in education 

programs or activities receiving federal financial assistance, specifically under 20 U.S.C. 

1682 and generally under 20 U.S.C. 1221e-3 and 3474. 

Current Regulations: Current section 106.8(a) requires a recipient to designate at least

one employee to be the “responsible employee” who has the duty to coordinate the 

recipient’s efforts to comply with and carry out its responsibilities under the regulations, 

including any investigation of any complaint alleging a recipient’s noncompliance with, or 

actions which would be prohibited by, 34 CFR part 106. Section 106.8(a) also requires 

recipients to notify all students and employees of the name, office address, and telephone 

number of such employee or employees. 
78 

34 CFR 106.8(b) requires recipients to adopt and publish grievance procedures providing 

for prompt and equitable resolution of student and employee complaints of sex 

discrimination.

34 CFR 106.9(a)(1) requires recipients to notify applicants for admission and employment, 

students and parents of elementary and secondary school students, employees, sources of 

referral for applicants for admission and employment, and unions or professional 

organizations holding collective bargaining agreements or professional agreements with the 

recipient that it does not discriminate on the basis of sex in the education program or 

activity which it operates. Such notice must state that inquiries about the application of Title 

IX may be referred to the employee designated pursuant to section 106.8, or to the Assistant 

Secretary.

34 CFR 106.9(b) lists the types of publications where the recipient shall publish its 

nondiscrimination policy, and 34 CFR 106.9(c) specifies the manner of distribution of such 

publications. 

Proposed Regulations: We are proposing to clarify the requirements of 34 CFR 106.8(a). 

Proposed section 106.8(a) would state that the designated individual is referred to as the 

“coordinator,” and would alter the required methods for notification. Proposed section 

106.8(a) would also remove potentially unclear language in the existing regulation that 

could be read to require that the coordinator must be the one that handles the investigations 

and otherwise directly carries out the recipient’s responsibilities.

We also propose moving the “notification of policy” requirement in current section 

106.9(a)(1) to proposed section 106.8(b)(1). Proposed section 106.8(b)(1) would streamline 

the list of people whom recipients must notify of its policy of non- discrimination based on 

sex, and clarify that such a notice must state that inquiries about application of Title IX to 
79 

the recipient may be made to the recipient’s Title IX Coordinator or the Assistant Secretary, 

or to both. 

Proposed section 106.8(b)(2) requires recipients to prominently display their Title IX nondiscrimination policy on their website (if any) and in each handbook or catalog that it 

makes available to the list of people who must be notified in paragraph (b)(1), and prohibits 

recipients from using or distributing publications stating that the recipient treats applicants, 

students, or employees differently on the basis of sex except as such different treatment is 

permitted by this part.

We also propose moving the requirements in current 34 CFR 106.8(b) to proposed section 

106.8(c), with modifications as proposed below. Proposed section 106.8(c) would clarify 

that with respect to sexual harassment, the grievance procedures requirements specifically 

apply to formal complaints as defined in section 106.44(e)(5). Proposed section 106.8(c) 

would also require recipients to provide notice of their grievance procedures to students and 

employees.

We also propose adding paragraph (d) to section 106.8 to clarify that the policy and 

grievance procedures described in this section need not apply to persons outside the United 

States.

Reasons: Proposed section 106.8(a) would reflect the current reality of Title IX compliance – 

namely, that recipients generally name a Title IX Coordinator and designate that individual to 

coordinate their efforts to comply with Title IX. It appears that the phrase “and carry out” in the 

existing regulation could be read to suggest that the Title IX Coordinator must be the one who 

carries out the recipient’s duties under Title IX, rather than allowing the coordinator to 

coordinate the actions of others in carrying out those duties. Since the phrase is redundant and 

can be confusing, we propose removing it. In addition, in light of the expansion of the regulations 
80 

elsewhere to expressly cover investigations of Title IX complaints, the language specifically 

including coordination of such investigations in the responsibilities of the designated individual 

would no longer be necessary, and would therefore be removed.

Proposed section 106.8(a) would also modernize the notification requirements to better 

ensure that students and employees are aware of how to contact a recipient’s Title IX 

Coordinator. Given the changes in methods of communication since the regulations were 

issued in 1975, the proposed amendments would require the recipient to notify students and 

employees of the electronic mail address of the employee or employees designated as Title 

IX Coordinators, in addition to providing the coordinator’s office address and phone 

number. To alleviate the administrative and financial burden on a recipient to provide a new 

notice every time it designates an additional or different coordinator, the proposed 

amendments permit recipients to provide notice of a coordinator’s name and contact 

information or, alternatively, simply a title with an established method of contacting the 

coordinator that does not change as the identity of the coordinator changes. The Department 

solicits comments on whether larger institutions of higher education should have a 

minimum number of individuals with whom individuals can file a complaint of sex 

discrimination.

Proposed section 106.8(b)(2) would require recipients to prominently display their nondiscrimination policy on their websites, if any, and in each handbook or catalog made 

available to the list of people to whom notice must be sent under paragraph (b)(1). Proposed 

section 106.8(b)(2) streamlines the list of required publications that must display the 

recipient’s Title IX non-discrimination policy, to reduce the burden on recipients (including 

the requirement for distribution of written publications included in current 106.9(c)) while 

still ensuring that the policy is adequately communicated to all required persons, in light of 
81 

the reality that most recipients have websites where the non- discrimination policy would 

have to be prominently displayed. In addition, proposed section 106.8(b)(2) would replace 

the existing restriction on publications that suggest a policy of sex discrimination (either by 

text or illustration) with a restriction on publications that state a policy of sex 

discrimination. This change would remove the subjective determination of whether the 

illustrations in a publication could be construed to suggest a policy of sex discrimination 

and instead focus the requirement on recipients’ express statements of policy. As a result, 

the requirement would be more clear, both for recipients seeking to comply with the 

requirement and for those enforcing the requirement. Because most recipients have 

websites on which they must display their Title IX non-discrimination policy pursuant to 

proposed section 106.8(b)(2), proposed section 106.8(b)(1) streamlines the list of people to 

whom the recipient must send notice of its policy. Applicants for admission and 

employment, students, employees, and employee unions and professional organizations 

must receive the notice under proposed section 106.8(b)(2). 

Proposed section 106.8(d) would clarify that the recipient’s policy and grievance 

procedures apply to all students and employees located in the United States with respect to 

allegations of sex discrimination in an education program or activity of the recipient. The 

statutory language of Title IX limits its application to protecting “person[s] in the United 

States.” 20 U.S.C. 1681(a). 

Educational institutions controlled by religious organizations (Current and Proposed 

section 106.12) 

Statute: The statute addresses educational institutions controlled by religious 

organizations, stating that Title IX “shall not apply to an educational institution which is 

controlled by a religious organization if the application of this subsection would not be 
82 

consistent with the religious tenets of such organization,” 20 U.S.C. § 1681(a)(3), and that 

the term “program or activity” “does not include any operation of an entity which is 

controlled by a religious organization if the application of section 1681 of this title to such 

operation would not be consistent with the religious tenets of such organization,” 20 

U.S.C. § 1687. 

Current Regulations: Current 34 CFR 106.12(a) provides an exemption for educational

institutions controlled by a religious organization, to the extent that application of the regulation 

would be inconsistent with the religious tenets of the organization. To claim this exemption, 

section 106.12(b) requires recipients to submit a letter to the Assistant Secretary stating which 

parts of the regulation conflict with a specific tenet of the religion.

Proposed Regulations: We propose revising section 106.12(b) to clarify that an

educational institution may – but is not required to – seek assurance of its religious exemption by 

submitting a written request for such an assurance to the Assistant Secretary. Further, section 

106.12(b) is revised to state that even if an institution has not sought assurance of its exemption, 

the institution may still invoke its religious exemption during the course of any investigation 

pursued against the institution by the Department. 

Reasons: The current regulations suggest that the recipients may only claim the

exemption from paragraph (a) by submitting a letter to the Assistant Secretary. The 

additional language clarifying that the letter to the Assistant Secretary is not required to 

assert the exemption brings the regulatory language into alignment with longstanding 

Department practice. The statutory text of Title IX offers an exemption to religious entities 

without expressly requiring submission of a letter, and the Department believes such a 

requirement is unnecessary. The Department should not impose confusing or burdensome 

requirements on religious institutions that qualify for the exemption.
83 

Exercise of rights by parents/guardians of students 

The Department recognizes that when a party is a minor, has been appointed a guardian, is 

attending an elementary or secondary school, or is under the age of 18, recipients have the 

discretion to look to state law and local educational practice in determining whether the 

rights of the party shall be exercised by the parent(s) or guardian(s) instead of or 

inaddition to the party. For example, if the parent or guardian of a minor student at an 

elementary or secondary school files a complaint on behalf of the student, and state law and 

local educational practice recognize the parent or guardian as the appropriate person to 

exercise that student’s legal rights, the student would be a “complainant” under the 

proposed regulation even though the action of filing the complaint was taken by the parent 

or guardian instead of the student. 

Directed Questions

The Department seeks additional comments on the questions below: 

1. Applicability of the rule to elementary and secondary schools. The proposed rule 

would apply to all recipients of federal financial assistance, including institutions of higher 

education and elementary and secondary schools. The Department is interested in whether 

there are parts of the proposed rule that will be unworkable at the elementary and secondary 

school level, if there are additional parts of the proposed rule where the Department should 

direct recipients to take into account the age and developmental level of the parties involved 

and involve parents or guardians, and whether there are other unique aspects of addressing 

sexual harassment at the elementary and secondary school level that the Department should 

consider, such as systemic differences between institutions of higher education and 

elementary and secondary schools. 

2. Applicability of provisions based on type of recipient or age of parties. Some 
84 

aspects of our proposed regulations, for instance, the provision regarding a safe harbor in

the absence of a formal complaint in proposed section 106.44(b)(3) and the provision 

regarding written questions or cross examination in proposed section 106.45(b)(3)(vi) and 

(vii), differ in applicability between institutions of higher education and elementary and 

secondary schools. We seek comment on whether our regulations should instead 

differentiate the applicability of these or other provisions on the basis of whether the 

complainant and respondent are 18 or over, in recognition of the fact that 18-year-olds are 

generally considered to be adults for many legal purposes.

3. Applicability of the rule to employees. Like the existing regulations, the proposed 

regulations would apply to sexual harassment by students, employees, and third parties. The 

Department seeks the public’s perspective on whether there are any parts of the proposed 

rule that will prove unworkable in the context of sexual harassment by employees, and 

whether there are any unique circumstances that apply to processes involving employees 

that the Department should consider. 

4. Training. The proposed rule would require recipients to ensure that Title IX 

Coordinators, investigators, and decision-makers receive training on the definition of sexual 

harassment, and on how to conduct an investigation and grievance process, including 

hearings, that protect the safety of students, ensures due process for all parties, and 

promotes accountability. The Department is interested in seeking comments from the public 

as to whether this requirement is adequate to ensure that recipients will provide necessary 

training to all appropriate individuals, including those at the elementary and secondary 

school level.

5. Individuals with disabilities. The proposed rule addresses the rights of students with 

disabilities under the IDEA, Section 504, and Title II of the ADA in the context of 
85 

emergency removals (proposed section 106.44(c)). The Department is interested in 

comments from the public as to whether the proposed rule adequately takes into account 

other issues related to the needs of students and employees with disabilities when such 

individuals are parties in a sex discrimination complaint, or whether the Department should 

consider including additional language to address the needs of students and employees with 

disabilities as complainants and respondents. The Department also requests consideration of 

the different experiences, challenges, and needs of students with disabilities in elementary 

and secondary schools and in postsecondary institutions related to sexual harassment.

6. Standard of Evidence. In section 106.45(b)(4)(i), we are proposing that the 

determination regarding responsibility be reached by applying either a preponderance of 

the evidence standard or the clear and convincing standard, and that the preponderance 

standard be used only if it is also used for conduct code violations that do not involve 

sexual harassment but carry the same maximum disciplinary sanction. We seek comment 

on (1) whether it is desirable to require a uniform standard of evidence for all Title IX 

cases rather than leave the option to schools to choose a standard, and if so then what 

standard is most appropriate; and (2) if schools retain the option to select the standard they 

wish to apply, whether it is appropriate to require schools to use the same standard in Title 

IX cases that they apply to other cases in which a similar disciplinary sanction may be

imposed.

7. Potential clarification regarding “directly related to the allegations” language. 

Proposed section 106.45(b)(3)(viii) requires recipients to provide each party with an equal 

opportunity to inspect and review any evidence directly related to the allegations obtained as part 

of the investigation, including the evidence upon which the recipient does not intend to rely in 

reaching a determination regarding responsibility, and provide each party with an equal 
86 

opportunity to respond to that evidence prior to completion of the investigative report. The 

“directly related to the allegations” language stems from requirements in FERPA, 20 U.S. Code § 

1232g(a)(4)(A)(i). We seek comment on whether or not to regulate further with regard to the 

phrase, “directly related to the allegations” in this provision.

8. Appropriate time period for record retention. In section 106.45(b)(7), we are 

proposing that a recipient must create, make available to the complainant and respondent, 

and maintain records for a period of three years. We seek comments on what the 

appropriate time period is for this record retention.

9. Technology needed to grant requests for parties to be in separate rooms at live 

hearings. In section 106.45(b)(3)(vii) we require institutions of higher education to grant 

requests from parties to be in separate rooms at live hearings, with technology enabling 

the decision-maker and parties to see and hear each other simultaneously. We seek 

comments on the extent to which institutions already have and use technology that would 

enable the institution to fulfill this requirement without incurring new costs or whether 

institutions would likely incur new costs associated with this requirement.

Executive Orders 12866 and 13563 

Regulatory Impact Analysis (RIA) 

Under Executive Order 12866, the Office of Management and Budget (OMB) must 

determine whether this regulatory action is “significant” and, therefore, subject to the 

requirements of the Executive order and subject to review by OMB. Section 3(f) of 

Executive Order 12866 defines a “significant regulatory action” as an action likely to result 

in a rule that may— 

(1) Have an annual effect on the economy of $100 million or more, or adversely affect a 

sector of the economy, productivity, competition, jobs, the environment, public health or 
87 

safety, or State, local, or tribal governments or communities in a material way (also referred 

to as an “economically significant” rule);

(2) Create serious inconsistency or otherwise interfere with an action taken or planned by 

another agency; 

(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan 

programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President’s 

priorities, or the principles stated in the Executive order.

Under Executive Order 12866, section 3(f)(1), the changes made in this regulatory action 

materially alter the rights and obligations of recipients of federal financial assistance 

under Title IV of the Higher Education Act of 1965 (Title IV). Therefore, the Secretary 

certifies that this is a significant regulatory action subject to review by OMB. Also under 

Executive Order 12866 14and the Presidential Memorandum “Plain Language in 

Government Writing,” the Secretary invites comment on how easy these regulations are 

to understand in the Clarity of the Regulations section.

Under Executive Order 13771, for each new regulation that the Department proposes for 

notice and comment or otherwise promulgates that is a significant regulatory action under 

Executive Order 12866 and that imposes total costs greater than zero, it must identify two 

deregulatory actions. For FY 2019, no regulations exceeding the agency’s total incremental 

cost allowance will be permitted, unless required by law or approved in writing by the 

Director of the Office of Management and Budget. The proposed regulations are a 

significant regulatory action under EO 12866 but do not impose total costs greater than 

zero. Accordingly, the Department is not required to identify two deregulatory actions under 

 

14 Exec. Order No. 12866, Regulatory Planning and Review, 58 Fed. Reg. 190 (Oct. 4, 1993), 

www.reginfo.gov/public/jsp/Utilities/EO_12866.pdf.
88 

EO 13771.15 

We have also reviewed these proposed regulations under Executive Order 13563, which 

supplements and explicitly reaffirms the principles, structures, and definitions governing 

regulatory review established in Executive Order 12866. To the extent permitted by law, 

Executive Order 13563 requires that an agency--

(1) Propose or adopt regulations only on a reasoned determination that their benefits 

justify their costs (recognizing that some benefits and costs are difficult to quantify); 

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining 

regulatory objectives and taking into account--among other things and to the extent 

practicable--the costs of cumulative regulations; 

(3) In choosing among alternative regulatory approaches, select those approaches that 

maximize net benefits (including potential economic, environmental, public health and 

safety, and other advantages; distributive impacts; and equity); 

(4) To the extent feasible, specify performance objectives, rather than the behavior or 

manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic 

incentives--such as user fees or marketable permits--to encourage the desired behavior, or 

provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to 

quantify anticipated present and future benefits and costs as accurately as possible.” The 

Office of Information and Regulatory Affairs of OMB has emphasized that these techniques 

may include “identifying changing future compliance costs that might result from 

 

15 Exec. Order No. 13771, Reducing Regulation and Controlling Regulatory Costs, 82 Fed. Reg. 22 (Jan. 

30, 2017), www.gpo.gov/fdsys/pkg/FR-2017-02-03/pdf/2017-02451.pdf.
89 

technological innovation or anticipated behavioral changes.” 

We are issuing these proposed regulations only on a reasoned determination that their 

benefits justify their costs. Based on the analysis that follows, the Department believes that 

these regulations are consistent with the principles in Executive Order 13563. 

We also have determined that this regulatory action does not unduly interfere with State, 

local, or tribal governments in the exercise of their governmental functions. 

In this RIA we discuss the need for regulatory action, the potential costs and benefits, 

assumptions, limitations, and data sources, as well as regulatory alternatives we considered. 

Although the majority of the costs related to information collection are discussed within this 

RIA, elsewhere in this notice under Paperwork Reduction Act of 1995 we also identify and 

further explain burdens specifically associated with information collection requirements.

1. Need for Regulatory Action

Based on its extensive review of the critical issues addressed in this rulemaking, the 

Department has determined that current regulations and guidance do not provide 

sufficiently clear standards for how recipients must respond to incidents of sexual 

harassment, including defining what conduct constitutes sexual harassment. To address this 

concern, we propose this regulatory action to address sexual harassment under Title IX for 

the central purpose of ensuring that recipients understand their legal obligations, including 

what conduct is actionable as harassment under Title IX, the conditions that activate a 

mandatory response by the recipient, and particular requirements that such a response must 

meet in order to ensure that the recipient is protecting the rights of all its students to equal 

access to education free from sex discrimination.

In addition to addressing sexual harassment, the Department has concluded it is also 

necessary to amend three parts of the existing regulations that apply to all sex 
90 

discrimination under Title IX. We propose expressly stating that Title IX does not require 

recipients to infringe upon existing constitutional protections, that the Department may not 

require money damages as a remedy for violations under Title IX, and that recipients that 

qualify for a religious exemption under Title IX need not submit a letter to the Department 

as a prerequisite to claiming the exemption.

2. Discussion of Costs, Benefits, and Transfers

The Department has analyzed the costs and benefits of complying with these proposed 

regulations. Due to the number of affected entities, the variation in likely responses, and the 

limited information available about current practices, particularly at the local educational 

agency (LEA) level, we cannot estimate the likely effects of these proposed regulations 

with absolute precision. The Department specifically invites public comment on: data 

sources which would provide comprehensive information regarding current practices in 

Title IX enforcement, information regarding the number of recipients in each analytical 

group described in section 4.b below, and time estimates for the activities described in 4.c 

disaggregated by type of recipient. Despite these limitations, we estimate that these 

regulations would result in a net cost savings of between $286.4 million to 

$367.7 million over ten years. 

3. Benefits of the Proposed Regulations 

The proposed regulatory action will result in recipients better understanding their legal 

obligations to address sexual harassment under Title IX by providing a legal framework for 

recipients’ responses to sexual harassment that ensures all reports of sexual harassment are 

treated seriously and all persons accused are given due process protections before being 

disciplined for sexual harassment. The proposed regulatory action will correct problems 

identified by the Department with the current framework governing sexual harassment 
91 

(under current regulations and guidance), such as recipients not understanding their duties 

and responsibilities and a lack of robust due process protections in recipient grievance 

procedures under Title IX. In addition, the proposed regulatory action will correct capturing 

too wide a range of misconduct resulting in infringement on academic freedom and free

speech.

4. Costs of the Proposed Regulations 

These proposed regulations would among other things: define sexual harassment for Title 

IX purposes; clarify when a recipient’s obligation to investigate a complaint of sexual

harassment is activated; define the minimum requirements of grievance procedures for Title 

IX purposes; establish a process for informal resolution of sexual harassment claims; and 

require appropriate documentation of all Title IX complaints and investigations. 

Prior to discussing the Department’s estimates, we believe it is important to emphasize that 

these estimates are not an attempt to quantify the economic effects of sexual harassment, 

broadly, or sexual assault, specifically. Other studies16 have attempted to quantify such 

costs and, while incidents of sexual assault may have real economic consequences, these 

estimates are only intended to capture the economic impacts of this proposed regulatory 

action. The Department does not believe it is reasonable to assume that these proposed 

regulations will have a quantifiable effect on the underlying rate of sexual harassment 

occurring in the education programs or activities of recipients. As a result, we do not 

attempt to capture costs that arise out of the underlying incidents themselves, but rather 

those associated with the actions prescribed by the proposed regulations and the likely 

response of regulated entities to those proposed requirements. 

4.a. Establishing a Baseline

 

16 See, e.g.,, Cora Peterson et al., Lifetime Economic Burden of Rape Among U.S. Adults, 52 AM. J. OF

PREVENTATIVE MED. 691 (2017).
92 

To accurately estimate the costs of these proposed regulations, the Department needed to 

establish an appropriate baseline for current practice. In doing so, it was necessary to know 

the current number of Title IX investigations occurring in LEAs and institutions of higher 

education (IHEs) eligible for Title IV federal funding. In 2014, the U.S. Senate 

Subcommittee on Financial and Contracting Oversight released a report 17 which included survey 

data from 440 four-year IHEs regarding the number of investigations of sexual violence that had 

been conducted during the previous five year period. Two of the five possible responses to the 

survey were definite numbers (0, 1), while the other three were ranges (2-5, 6-10, >10). 

Responses were also disaggregated by size of institution (Large, Medium, or Small). Although 

the report does not clearly identify a definition of “sexual violence” provided to survey 

respondents, the term would appear to capture only a subset of the types of incidents that may 

result in a Title IX investigation. Indeed, when the Department examined public reports of Title

IX reports and investigations at 55 IHEs nationwide, incidents of sexual misconduct represented, 

on average, 45 percent of investigations conducted. Further, a number of the types of incidents 

that were categorized as “sexual misconduct” in those reports may, or may not, have been 

categorized as “sexual violence,” depending on the survey respondent. To address the fact that 

the subcommittee report may fail to capture all incidents of sexual misconduct at responding 

IHEs, the Department first top-coded the survey data. To the extent that survey respondents 

treated the terms “sexual misconduct” and “sexual violence” interchangeably, this top-coding 

approach may result in an overestimate of the number of sexual misconduct investigations 

conducted at institutions. By top-coding the ranges (e.g., “5” for any respondent indicating “2-5”) 

and assuming 50 investigations for any respondent indicating more than 10 investigations, the 

 17 CLAIRE MCCASKILL, S. SUBCOMM. ON FINANCIAL CONTRACTING OVERSIGHT – MAJORITY STAFF, 

SEXUAL VIOLENCE ON CAMPUS, 113th Cong. (2014),

https://www.mccaskill.senate.gov/SurveyReportwithAppendix.pdf.
93 

Department was able to estimate the average number of sexual misconduct investigations 

conducted by four-year institutions in each size category. We then divided this estimate by five 

to arrive at an estimated number of investigations per year. To address the fact that incidents of 

sexual misconduct only represent a subset of all Title IX investigations conducted by IHEs in any 

given year, we then multiplied this result by two, assuming (consistent with our convenience 

sample of public Title IX reporting) that sexual misconduct investigations represented 

approximately 50 percent of all Title IX investigations conducted by institutions.

Because the report only surveyed four-year institutions, the Department needed to impute 

similar data for two-year and less-than-two-year institutions, which represent approximately 

57 percent of all Title IV-eligible institutions. In order to do so, the Department analyzed 

sexual offenses reported under the Clery Act and combined those data with total enrollment 

information from the Integrated Postsecondary Education Data System (IPEDS) for all Title 

IV-eligible institutions within the United States. Assuming that the number of reports of 

sexual offenses under the Clery Act is positively correlated with the number of 

investigations, the Department arrived at a general rate of investigations per reported sexual 

offense at four-year IHEs by institutional enrollment. These rates were then applied to twoyear and less-than-two-year institutions within the same category using the average number 

of sexual offenses reported under the Clery Act for such institutions to arrive at an average 

number of investigations per year by size and level of institution. These estimates were then 

weighted by the number of Title IV- eligible institutions in each category to arrive at an 

estimated average 2.36 investigations of sexual harassment per IHE per year.18 To the 

extent that the number of investigations and the number of Clery Act reports of sexual 

 

18 To determine the sensitivity of this estimate to our coding of the survey data, the Department also conducted these 

analyses by coding the data using medians for each range (e.g., 3.5 for the “2-5” range) with a code of 30 for the 

“>10” group and by top-coding using a 100 for the “>10” group. These alternative approaches would result in 

baseline estimates ranging from 1.48 to 4.31 investigations per year per IHE.
94 

offenses are not uniformly correlated across types of institutions (i.e., less-than-two-year, 

two-year, and four-year), this may represent an over- or-under-estimate of the actual 

number of investigations per IHE per year. We invite the public to provide any pertinent 

evidence on determining investigations of sexual harassment per IHE per year to improve 

our baseline estimates.

The Department does not have information on the average number of investigations of 

sexual harassment occurring each year in LEAs. As part of the Civil Rights Data 

Collection (CRDC), the Department does, however, gather information on the number of 

incidents of harassment based on sex in LEAs each year. During school year 2015-2016, 

LEAs reported an average of 3.23 of such incidents. Therefore, the Department assumes 

that LEAs, on average, currently conduct approximately 3.23 Title IX investigations each 

year. We invite public comment on the extent to which this is a reasonable assumption. 

4.b. Developing the Model 

After the Department issued guidance regarding Title IX compliance in 2011, the 

Department noted a much larger number of incidents of sexual harassment being reported to 

and investigated by LEAs and IHEs each year. In 2017, the Department rescinded that 

guidance and published alternative, interim guidance while this proposed regulatory action 

was underway. The Department reaffirmed that the interim guidance is not legally binding 

on recipients. Wiersma-Mosley and DiLoreto19 did not identify substantial rollback of Title 

IX activities among IHEs compared to Richards,20 who found substantial changes relative 

to Karjane, Fisher, and Cullen.21 Consistent with those studies, we believe it is highly likely 

 

19 Jacquelyn D. Wiersma-Mosley and James DiLoreto, The Role of Title IX Coordinators on College and University 

Campuses, 8 BEHAV. SCI. 1, 5–6(2018), available at https://www.mdpi.com/2076- 328X/8/4/38/htm (click on “FullText PDF”).

20 Tara N. Richards, An updated review of institutions of higher education’s (IHEs) response to sexual assault: 

Results from a nationally representative sample, J. OF INTERPERSONAL VIOLENCE 1, 11–12 (2016).

21 HEATHER M. KARJANE, BONNIE S. FISHER, AND FRANCIS T. CULLEN, EDUC. DEVELOPMENT CTR., INC., 
95 

that a subset of recipients have continued Title IX enforcement in accordance with the prior, 

now rescinded guidance, due to the uncertainty of the regulatory environment, and that it is 

reasonable to assume that some subset of recipients either never complied with the 2011 

DCL or the 2014 Q&A or amended their compliance activities after the rescission of that 

guidance. We do not, however, know with absolute certainty how many recipients fall into 

each category, making it difficult to accurately predict the likely effects of this proposed 

regulatory action.

In general, the Department assumes that recipients fall into one of three groups: (1) 

recipients who have complied with the statutory and regulatory requirements and either did 

not comply with the 2011 DCL or the 2014 Q&A or who reduced Title IX activities to the 

level required by statute and regulation after the rescission of the 2011 DCL or the 2014 

Q&A and will continue to do so; (2) recipients who continued Title IX activities at the level 

required by the 2011 DCL or the 2014 Q&A but will amend their Title IX activities to the 

level required under current statute and the proposed regulations issued in this proceeding; 

and (3) recipients who continued Title IX activities at the level required under the 2011 

DCL or the 2014 Q&A and will continue to do so after final regulations are issued. In this 

structure, we believe that recipients in the second group are most likely to experience a net 

cost savings under these proposed regulations. We therefore only estimate savings for this 

group of recipients. To the extent that recipients in the other two groups experience savings, 

we herein underestimate the savings from this proposed action. We note that we calculate 

some increased costs for recipients in all three categories.

In estimating the number of recipients in each group, we assume that most LEAs and Title 

IV-eligible IHEs are generally risk averse regarding Title IX compliance, and so we assume 

 

CAMPUS SEXUAL ASSAULT: HOW AMERICA’S INSTITUTIONS OF HIGHER EDUCATION RESPOND 62–94(2002),

https://www.ncjrs.gov/pdffiles1/nij/grants/196676.pdf.
96 

that very few would have adjusted their enforcement efforts after the rescission of the 2011 

DCL or the 2014 Q&A or would have failed to align their activities with the guidance 

initially. Therefore, we estimate that only 5 percent of LEAs and 5 percent of IHEs fall into 

Group 1.22Given the particularly acute financial constraints on LEAs, we assume that a vast 

majority (90 percent) will fall into Group 2 – meeting all requirements of the proposed 

regulations and applicable laws, but not using limited resources to maintain a Title IX 

compliance structure beyond such requirements. Among IHEs, we assume that, for a large 

subset of recipients, various pressures will result in retention of the status quo in every 

manner that is permitted under the proposed regulations. These institutions are voluntarily 

assuming higher costs than the regulations require. Nonetheless, our model does account for 

their decision to do so, and we only assume that 50 percent of IHEs experience any cost 

savings from these proposed regulations (placing them in Group 2). Therefore, we estimate 

that Group 3 will consist of 5 percent of LEAs and 45 percent of IHEs. We invite public 

comment on the extent to which the estimated number of entities in each group is 

appropriate, or whether recipients would expect costs or costs savings from the proposed 

regulations, and why. 

Unless otherwise specified, our model uses median hourly wages for personnel employed 

in the education sector as reported by the Bureau of Labor Statistics23 and an employer 

cost for employee compensation rate of 1.46.24 

4.c. Cost estimates

We assume that, once the Department issues final regulations, all recipients will need to 

 

22 If our estimates were revised to increase the number of recipients in this group, our calculated net savings 

would be reduced. See section 4.e. Sensitivity Analysis for more information. 23 U.S. Dept. of Labor, Bureau of Labor Statistics, May 2017 National Industry-Specific Occupational Employment 

and Wage Estimates: Sector 61 – Educational Services (Mar. 30, 2018), 

https://www.bls.gov/oes/current/naics2_61.htm. 24 U.S. Dept. of Labor, Bureau of Labor Statistics, Economic News Release: Table 1. Civilian Workers, by Major 

Occupational and Industry Group (Sept. 18, 2018), https://www.bls.gov/news.release/ecec.t01.htm.
97 

review the regulations. At the LEA level, we assume this would involve the Title IX 

Coordinator (assuming a loaded wage rate of $65.22 per hour for educational 

administrators) for 4 hours and a lawyer (at a rate of $90.71 per hour) for 8 hours. At the 

IHE level, we assume the Title IX Coordinator and lawyer would spend more time 

reviewing the regulations, at 8 hours and 16 hours, respectively. This results in a total cost 

of $29,732,680 in Year 1.

We also assume that recipients would be required to revise their grievance procedures to 

ensure compliance with the proposed regulations. Although the requirements of these 

proposed regulations closely mirror requirements in other regulations and statutes, we 

assume that all recipients will need to revise their procedures. We believe that revising 

grievance procedures at the LEA level will require the work of the Title IX Coordinator for 

4 hours and a lawyer for 16 hours. At the IHE level, we assume this would require the Title 

IX Coordinator devote 8 hours and a lawyer devote 32 hours. In total, we estimate the cost 

of revising grievance procedures to be approximately $51,603,180 in Year 1. 

The proposed regulations also require recipients to post nondiscrimination statements on 

their websites as required under the existing regulation. We assume, however, that this is 

already standard practice for many recipients. We assume that 40 percent of LEAs and 20 

percent of IHEs25 will need to do work to post these statements. At the LEA level, we 

assume that this work will require 0.5 hours from the Title IX Coordinator, 0.5 hours from a 

lawyer, and 2 hours from a web developer (at $44.12 per hour). At the IHE level, we 

assume this would require 1 hour from the Title IX Coordinator, 1 hour from a lawyer, and 

2 hours from a web developer. We estimate the total cost of posting nondiscrimination 

statements on the recipient’s website will cost $1,347,520 in Year 1. 

 

25 Richards, supra note 20, at 11 and Wiersma-Mosley & DiLoreto, supra note 19, at 5 found that approximately 80 

percent of IHEs (81 percent and 79 percent, respectively) posted their policies and procedures.
98 

The proposed regulations also require relevant staff to receive training on the requirements 

of Title IX. Although recipients may currently engage in annual training of Title IX 

staff, 26we assume that all recipients will conduct new or revised training aligned with 

these proposed regulations. We assume that the training will take 16 hours each for the Title 

IX Coordinator, the investigator, and a decision-maker at both the LEA and IHE level for a 

timately $$14,458,650 in Year 1. We do not calculate additional costs in future years as we 

assume that recipients will resume training of staff one their prior schedule after Year 1. 

The proposed regulations require recipients to conduct an investigation only in the event of 

a formal complaint of sexual harassment. In reviewing a sample of public Title IX 

documents, the Department noted that larger IHEs were more likely than smaller IHEs to 

conduct investigations only in the event of formal complaints, as opposed to investigating 

all reports they received. Consistent with this observation, the Department found that the 

rate of average investigations relative to the number of reports of sexual offenses under the 

Clery Act was lower at large (more than 10,000 students) four-year institutions than it was 

at smaller four-year institutions. As a result, the Department used the Clery Act data to 

impute the likely effect of these proposed regulations on various institutions. Specifically, 

we assume that, under these regulations, the gap in the rate of investigations between large 

IHEs and smaller ones would decrease by approximately 50 percent. Therefore, we estimate 

that the requirement to investigate only in the event of formal complaints would result in a 

reduction in the average number of investigations per IHE per year of 0.75. This reduction 

is equivalent to all IHEs in Group 2 experiencing a reduction in investigations of 

approximately 32 percent. In addition, the proposed regulations only require investigations 

in the event of sexual harassment within a recipient’s education program or activity. Again, 

 

26 Angela F. Amar et al., Administrators’ perceptions of college campus protocols, response, and student prevention 

efforts for sexual assault, 29 VIOLENCE VICT. 167 (2014).
99 

assuming that Clery Act reports correlate with all incidents of sexual harassment (as defined 

in these proposed regulations), we assume a further reduction in the number of 

investigations per IHE per year of approximately 0.18, using the number of non-campus, 

public property, and reported-by-police reports as a proxy for the number of off-campus 

sexual harassment investigations currently being conducted by IHEs.27 As a result, we

estimate that each IHE in Group 2 will experience a reduction in the number of Title IX 

investigations of approximately 0.93 per year.28 

At the LEA level, given the lack of information regarding the actual number of 

investigations conducted each year, the Department assumes that only 50% of the incidents 

reported in the CRDC would result in a formal complaint, for a reduction in the number of 

investigations of 1.62 per year. We invite the public to provide any information on the 

extent to which this is a reasonable assumption. 

To be clear, these estimates are not meant to discourage recipients from investigating at a 

higher rate. Nor do these estimates of a decrease in investigations predict a decrease in 

recipient’s obligation to respond in some appropriate way to a report of sexual harassment. 

For example, as noted earlier, nothing in the proposed regulations would prevent a recipient 

from initiating a student conduct proceeding or offering supportive measures to students 

who report sexual harassment that occurs outside the recipient’s education program or 

activity.

 

27The Department notes that this likely represents a severe under-estimate of the actual proportion of incidents 

of sexual harassment that occur off-campus. According to a study from United Educators, approximately 41 

percent of sexual assault claims examined occurred off-campus. United Educators, Facts from United 

Educator’s Report Confronting Campus Sexual Assault (2015), 

https://www.ue.org/sexual_assault_claims_study/. Nonetheless, it is likely that some subset of these incidents 

occurred “under” the recipients’ “education program or activity” and would still require a response by the 

recipient. If the Department were to assume 25 percent of those incidents required investigation under the 

proposed rules and increased its estimate of the number of off-campus incidents that would no longer require 

investigation to 30 percent (rather than the current 11 percent), the estimated cost savings of these proposed 

regulations would increase to approximately $359 to $456 million over ten years.

28 We note that the alternative coding options discussed above would result in an estimated reduction in the number 

of investigations each year between 0.60 and 1.58.
100 

Although we estimate that the number of investigations under the proposed regulations will 

decrease at both the IHE and LEA levels, Title IX Coordinators are still expected to respond 

to informal complaints or reports. Such responses will not be dictated by the recipient’s 

grievance procedures, but may involve talking with the reporting party, discussing options, 

connecting him or her with relevant on- or off-campus resources, conducting some sort of 

further investigation, and other supportive measures29. Although the proposed regulations 

require such supportive measures to be offered without fee or charge, we do not estimate 

specific costs associated with the provision of particular supportive measures. We have 

chosen not to include such costs for several reasons. First, in many instances, particular 

services are already offered without fee or cost to students. For example, many IHEs offer 

free mental health services to students. In such an instance, it is difficult to identify the 

marginal cost of an additional individual seeking out such already covered services. Second, 

even if we were able to identify the marginal cost of the provision of such services to the 

recipient, it would be difficult to accurately capture the portion of that cost attributable to 

the referral by the Title IX coordinator rather than to the underlying reported harassment. 

For example, Krebs et al.30 found that 22 percent of victims of forced sexual assault sought 

out psychological counseling, 11 percent moved residences, and 8 percent dropped a class. 

It is difficult to assess what marginal impact these proposed regulations would have on the 

likelihood of complainants and respondents taking such actions. In the event that a clear fee 

exists for a particular service that the recipient would waive in accordance with these

proposed regulations, we could calculate a cost arising from the lost revenue to the 

recipient. Due to the lack of adequate information about such fee structures and the highly 

 

29 Amar et al. supra note 26, at 174 identified the most common campus services provided at the IHE level were 

mental health services, health services, law enforcement, and victim assistance/advocacy.

30 CHRISTOPHER P. KREBS ET AL.,THE CAMPUS SEXUAL ASSAULT (CSA) STUDY: FINAL REPORT, NAT’L 

INST. OF JUST. (2007), https://www.ncjrs.gov/pdffiles1/nij/grants/221153.pdf.
101 

personalized nature of supportive measures provided to complainants and respondents, we 

cannot at this time provide such estimates with any precision. We invite the public to 

provide any information on the relative fees that may be waived by recipients as a result of 

these proposed regulations and the frequency with which such measures are implemented. 

We assume that the provision of supportive measures will take approximately 3 hours per 

report for Title IX coordinators and 8 hours for an administrative assistant at the LEA level. 

At the IHE level, we estimate that it would require 3 hours per incident for the Title IX 

coordinator and 16 hours for an administrative assistant. We therefore estimate that the 

response to informal complaints will cost approximately $5,356,590 per year.

At the LEA level, we assume that the average response to a formal complaint will require 8 

hours from the Title IX Coordinator, 16 hours for an administrative assistant, one hour each 

for two lawyers (assuming both parties obtain legal counsel),31 20 hours from an 

investigator, and 8 hours from a decision-maker. We also assume that, in 75 percent of 

LEAs, the Title IX coordinator also acts as the decision-maker, which would not be 

allowable under the proposed regulations. Assuming a reduction in the average number of 

investigations of 1.62 per LEA per year and the use of an independent decision-maker in

each investigation, these proposed regulations would result in a cost savings of 

$57,136,120 per year at the LEA level. 

At the IHE level, we assume that the average response to a formal complaint would require 

24 hours from the Title IX Coordinator, 40 hours from an administrative assistant, 40 hours 

each for 2 lawyers (assuming both parties obtain counsel), 40 hours for an investigator, and 

16 hours for a decision-maker. We note that, under these proposed regulations, recipients 

are required to provide parties with advisors to conduct cross- examination if they do not 

 

31 This average is based on the assumption that in a significant number of cases at the LEA level, either or both of the 

parties will choose to proceed without an attorney, or with a non-attorney advisor, such that the average cost for 

advisors will be two attorney hours.
102 

have an advisor present. Given that our estimates assume all parties obtain counsel, we do 

not believe that this additional requirement would result in an increased cost not otherwise 

captured by our estimates. Consistent with Wiersma- Mosley and DiLareto, we also assume 

that the Title IX coordinator serves as the decision-maker in 60 percent of IHEs. Assuming 

an average reduction of 0.0.93 investigations per year per IHE and the use of independent 

decision-makers, we estimate these proposed regulations to result in a net cost savings of 

$41,440,300 per year at the IHE level. 

We recognize that some recipients may currently conduct investigations in a manner with a 

less robust due process framework than what would be required under the proposed 

regulations. For these recipients, included in Group 1 as described in section 4.b, the 

regulations may result in an increased cost per investigations. At the LEA level, we assume 

these regulations would require 2 additional hours from the Title IX coordinator, 4 hours 

from an administrative assistant, 1 hour each from two lawyers, 10 additional hours from an 

investigator, and 8 additional hours from a decision-maker per investigation, for a total 

increased cost of approximately $1,609,200 per year. At the IHE level, we assume that 

these proposed regulations would require an additional 6 hours from a Title IX coordinator, 

10 hours from an administrative assistant, 20 hours each from two lawyers, 20 hours from 

an investigator, and 16 hours from a decision-maker, for a total increased cost of 

$2,829,570 per year. 

We note that the proposed regulations require a hearing for formal complaints at the IHE 

level. We do not estimate any additional cost associated with this provision beyond those 

outlined above, given that the use of hearing boards has become a relatively common 

practice at the IHE level.32 

 

32 Amar et al., supra note 26, at 172–3 found that approximately 87 percent of institutions used a hearing board 

which typically involved students, faculty, staff, and administrators. To the extent that these proposed regulations 
103 

In addition, the proposed regulations allow for formal complaints to be informally resolved. 

We assume that 10 percent of all formal complaints at the LEA and IHE level would be 

resolved through informal resolution.33 In such instances at the LEA level, we assume the 

Title IX Coordinator and administrative assistant will each have to dedicate 4 hours beyond 

what they would have for a full adjudication to reflect the potential additional 

administrative tasks associated with this approach. Nonetheless, we estimate that informal 

resolution will save half of the time outlined above for lawyers and investigators, and save 

the full estimated time commitment of decision-makers. At the IHE level, we assume 

similar time savings for lawyers, investigators, and decision- makers, with Title IX 

Coordinators and administrative assistants each dedicating an additional 8 hours per case. In 

total, we assume informal resolution will result in a cost savings of approximately 

$3,414,980 per year. 

The proposed regulations also require grievance procedures to include the opportunity for 

both parties to appeal if an appeal is offered.. Richards indicates that approximately 84 

percent of IHEs have an appeals process. For purposes of these estimates, we assume that 

any recipient in Group 3, as described in section 4.b, currently operates an appeals process. 

However, all recipients in Groups 1 and 2 would need to institute such a structure. Given 

that many recipients in Groups 1 and 2 may currently operate an appeals process, this 

approach would overestimate the costs of these proposed regulations. Based on our review 

of Title IX documents from various institutions, we assume that approximately 50 percent 

of investigations taken through to a determination of responsibility will result in an appeal 

by either party. We assume that, at the LEA level, each appeal will require 4 hours from the 

 

result in IHEs reducing the membership of hearing boards to, for example, a single decision-maker, these regulations 

would result in additional cost savings not otherwise captured here.

33 This figure likely represents an underestimate of the actual number that would be resolved informally. WiersmaMosley & DiLoreto, supra note 19, at 6, report that 34 percent of cases were resolved through informal resolution.
104 

Title IX coordinator, 8 hours from an administrative assistant, one hour each from two 

lawyers, and 8 hours from a decision- maker. At the IHE level, we assume each appeal will 

require 12 hours from a Title IX coordinator, 20 hours from an administrative assistant, 10 

hours each from 2 lawyers, and 8 hours from a decision-maker. In total, we estimate the 

appeals process will cost approximately $20,770,220 per year. To the extent that IHEs 

choose not to offer appeals, this calculation would represent an overestimate of actual 

burden. 

The proposed regulations require recipients to maintain certain documentation regarding 

their Title IX activities. We assume that the proposed recordkeeping and documentation 

requirements would have a higher first year cost associated with establishing the system for 

documentation with a lower out-year cost for maintaining it. At the LEA level, we assume 

that the Title IX Coordinator would spend 4 hours in Year 1 establishing the system and an 

administrative assistant would spend 8 hours doing so. At the IHE level, we assume 

recipients are less likely to use a paper filing system and are likely to use an electronic 

database for managing such information. Therefore, we assume it will take a Title IX 

Coordinator 24 hours, an administrative assistant 40 hours, and a database administrator

($50.71) 40 hours to set up the system for a total Year 1 estimated cost of approximately 

$38,836,760. 

In later years, we assume that the systems will be relatively simple to maintain. At the LEA 

level, we assume it will take the Title IX Coordinator 2 hours and an administrative 

assistant 4 hours to do so. At the IHE level, we assume 4 hours from the Title IX 

Coordinator, 40 hours from an administrative assistant, and 8 hours from a database 

administrator. In total, we estimate an ongoing cost of approximately $15,189,260 per year. 

In total, the Department estimates these proposed regulations will result in a net cost 
105 

savings of approximately $286.4 million to $367.7 million over ten years on a net present 

value basis.

4.d. Other Issues in the Proposed Regulations 

The proposed regulations address three topics that do not involve a recipient’s response to 

sexual harassment and which the Department estimates will not result in any net cost or 

benefit to regulated entities.

First, the proposed regulations emphasize that nothing about enforcement of Title IX shall 

require the Department or a recipient to violate the constitutional rights of any person. The 

Departments estimates that there are no costs or cost savings arising from this proposed 

provision because it does not require any new act on the part of a recipient. Second, the 

proposed regulations state that money damages shall not be required by the Department as a 

remedy for a recipient’s violation of Title IX or its regulations. The Department’s OCR 

generally does not impose money damages as a remedy under Title IX; however, 

occasionally OCR does require a recipient to pay sums of money as reimbursement to 

remedy a Title IX violation. Although the number of instances in which OCR imposes 

money damages is minimal, the Department wishes to emphasize through the proposed 

regulation that any remedy involving payment of money must be linked to bringing the 

recipient into compliance with Title IX, rather than falling into a category of imposing 

money damages. There is no cost associated with this proposed regulation because no new 

act is required of recipients.

Third, the proposed regulations clarify that a religious institution is not required to 

preemptively submit a written letter to the Department to claim the religious exemption 

from Title IX provided for by statute. There is no cost associated with the proposed 

regulation concerning religious institutions because the proposed regulation simply clarifies 
106 

that such institutions do not need to submit a written letter to the Department to claim the 

religious exemption available under the Title IX statute, and does not require any new 

action by recipients.

4.e. Sensitivity Analysis

The Department’s estimated costs and benefits for these proposed regulations are largely 

driven by two assumptions: the number of recipients that will not conduct activities beyond 

those required for compliance with the final regulations, and the change in the number of 

investigations conducted each year by each of those recipients. To assess the robustness of 

our estimates, we have conducted nine different simulations of our model with varying 

combinations of an upper, lower, and current estimate for each of these two factors. 

Regarding the upper bound for the number of recipients that will not conduct activities 

beyond those required for compliance with the final regulations, we assume 100 percent of 

LEAs and 85 percent of IHEs. For the lower bound, we assume 50 percent of LEAs and 33 

percent of IHEs. In both instances, we assume the remainder of recipients are in Group 3. 

As discussed above, alternative coding of investigation rate data would have resulted in an 

estimated reduction in the number of investigations per IHE per year ranging from 0.60 to 

1.58. Therefore, these estimates served as our upper and lower bound estimates for those 

institutions with a 25 percent to 75 percent reduction for LEAs. The estimated net present 

value of each of these alternative models, discounted at seven percent, is included in the 

table below.34 

Table 1: Sensitivity Analysis

Number of recipients reducing number of investigations 

Upper Bound Primary Estimate Lower Bound

 

34 We note that a three percent discount rate would result in larger estimated savings over the ten year time horizon
107 

Estimated 

reduction in 

investigations 

per recipient

Upper Bound ($820,648,142) ($431,940,097) ($221,468,788) 

Primary

Estimate

($534,363,019) ($286,449,261) ($110,309,915) 

Lower Bound ($388,322,321) ($210,250,875) ($53,605,189) 

Based on this analysis, the Department believes that its evaluation of the likely costs and 

benefits is accurate in assuming these proposed regulations would result in a net cost 

savings to recipients over a ten year period. Although we believe the estimates presented 

herein are conservative estimates of savings, even extreme lower bound estimates result in a 

calculated net cost savings.

5. Regulatory Alternatives Considered 

The Department considered the following alternatives to the proposed regulations: (1) 

leaving the current regulations and current guidance in place and issuing no proposed 

regulations at all; (2) leaving the current regulations in place and reinstating the 2011 DCL 

or the 2014 Q&A; and (3) issuing proposed regulations that added to the current regulations 

broad statements of general principles under which recipients must promulgate grievance 

procedures. Alternative (2) was rejected by the Department for the reasons expressed in the 

preamble to these proposed regulations; the procedural and substantive problems with the 

2011 DCL and the 2014 Q&A that prompted the Department to rescind that guidance 

remained as concerning now as when the guidance was rescinded, and the Department 

determined that restoring that guidance would once again leave recipients unclear about 

how to ensure they implemented prompt and equitable grievance procedures. Alternative 

(1) was rejected by the Department because even though current regulations require 

recipients to have grievance procedures providing for “prompt and equitable” resolution of 
108 

sex discrimination complaints, current regulations are entirely silent on whether Title IX 

and those implementing regulations cover sexual harassment; addressing a crucial topic like 

sexual harassment through guidance would unnecessarily leave this serious issue subject 

only to non-legally binding guidance rather than regulatory prescriptions. The lack of 

legally binding standards would leave survivors of sexual harassment with fewer legal 

protections and persons accused of sexual harassment with no predictable, consistent 

expectation of the level of fairness or due process available from recipients’ grievance 

procedures. Alternative (3) was rejected by the Department because the problems with the 

status quo regarding recipients’ Title IX procedures, as identified by numerous stakeholders 

and experts, made it clear that a regulation that was too vague or broad (e.g., “Provide due 

process protections before disciplining a student for sexual harassment”) would not provide 

sufficient predictability or consistency across recipients to achieve the benefits sought by 

the Department. After careful consideration of various alternatives, the Department believes 

that the proposed regulations represent the most prudent and cost effective way of achieving 

the desired benefits of (a) ensuring that recipients know their specific legal obligations with 

respect to responses to sexual harassment and (b) ensuring that schools and colleges take all 

reports of sexual harassment seriously and all persons accused of sexual harassment are 

treated fairly.

6. Accounting Statement

As required by OMB Circular A-4, in the following table we have prepared an accounting 

statement showing the classification of the expenditures associated with the provisions of 

these proposed regulations. This table provides our best estimate of the changes in annual 

monetized costs, benefits, and transfers as a result of the proposed regulations. 

Table 2: Accounting Statement
109 

Category Benefits

Clarity, specificity, and 

permanence with respect to 

recipient schools and colleges 

knowing their legal obligations 

under Title IX with respect to

sexual harassment

Not Quantified

A legal framework for schools’ Not Quantified
110 

and colleges’ response to sexual 

harassment that ensures all reports 

of sexual harassment are treated 

seriously and all persons accused 

are given due process before being

disciplined for sexual harassment 

Preserve constitutional rights, 

assure recipients that monetary 

damages will not be required by 

the Department, recognize 

religious exemptions in the

absence of written request

Not Quantified

Category Costs

7% 3% 

Reading

rule

and understanding the 

$3,956,322 $3,384,055 

Revision of grievance procedures $6,866,478 $5,873,268 

Posting 

statement

of non-discrimination

$179,305 $153,369 

Training of Title IX Coordinators, 

investigators, decision-makers

$1,923,912 $1,645,626 

Response to informal reports 5,336,591 $5,336,591 

Reduction in the number of ($99,176,416) ($99,176,416) 
111 

investigations

Increased investigation

requirements

$4,438,769 $4,438,769 

Appeal process $20,770,218 $20,770,218 

Informal resolution of complaints ($3,414,979) ($3,414,979) 

Creation and maintenance of 

documentation 

$18,335,868 $17,880,723 

Clarity of the Regulations 

Executive Order 12866 and the Presidential memorandum ‘‘Plain Language in Government 

Writing’’ require each agency to write regulations that are easy to understand. The 

Secretary invites comments on how to make these proposed regulations easier to 

understand, including answers to questions such as the following: 

• Are the requirements in the proposed regulations clearly stated?

• Do the proposed regulations contain technical terms or other wording that 

interferes with their clarity?

• Does the format of the proposed regulations (use of headings, paragraphing, 

etc.) aid or reduce their clarity?

• Would the proposed regulations be easier to understand if we divided them into 

more (but shorter) sections? (A ‘‘section’’ is preceded by the symbol ‘‘section’’ and a 

numbered heading; for example, section 106.9 Dissemination of policy.) 

• Could the description of the proposed regulations in the SUPPLEMENTARY 

INFORMATION section of this preamble be more helpful in making the proposed 

regulations easier to understand? If so, how?
112 

• What else could we do to make the proposed regulations easier to understand? 

To send any comments that concern how the Department could make these proposed 

regulations easier to understand, see the instructions in the ADDRESSES section of the 

preamble.

Deregulatory Action

Consistent with Executive Order 13771 (82 FR 9339, February 3, 2017), we have 

estimated that this proposed rule will result in cost savings. Therefore, this proposed rule 

would be considered an Executive Order 13771 deregulatory action. 

Regulatory Flexibility Act (Small Business Impacts)

This analysis, required by the Regulatory Flexibility Act, presents an estimate of the effect 

of the proposed regulations on small entities. The U.S. Small Business Administration 

(SBA) Size Standards define proprietary institutions of higher education as small 

businesses if they are independently owned and operated, are not dominant in their field 

of operation, and have total annual revenue below $7,000,000. Nonprofit institutions are 

defined as small entities if they are independently owned and operated and not dominant 

in their field of operation. Public institutions and local educational agencies are defined as 

small organizations if they are operated by a government overseeing a population below 

50,000. 

Publicly available data from the National Center on Education Statistics’ Common Core of 

Data indicate that, during the 2015-2016 school year, 99.4 percent of local educational 

agencies had enrollments of less than 50,000 students. 

The Department’s eZ-Audit data shows that there were 1,522 Title IV proprietary schools 

with revenue less than $7,000,000 for the 2015-2016 Award Year;35 however, the 

 

35 U.S. Dept. of Educ., Federal Student Aid, Proprietary School 90/10 Revenue Percentages, 

studentaid.ed.gov/sa/about/data-center/school/proprietary (select “2015-2016 Award Year: Report and Summary 
113 

Department lacks data to identify which public and private, nonprofit institutions qualify as 

small. Given the data limitations, the Department proposes a data-driven definition for 

“small institution” in each sector.

1. Proposed Definition

The Department has historically assumed that all private nonprofit institutions were small 

because none were considered dominant in their field. However, this approach masks 

significant differences in resources among different segments of these institutions. The 

Department proposes to use enrollment data for its definition of small institutions of 

postsecondary education. Prior analyses show that enrollment and revenue are correlated 

for proprietary institutions. Further, enrollment data are readily available to the Department 

for every postsecondary institution while revenue is not. The Department analyzed a 

number of data elements available in IPEDS, including Carnegie Size Definitions, IPEDS 

institutional size categories, total FTE, and its own previous research on proprietary 

institutions referenced in ED-2017-OPE-0076i. As a result of this analysis, the Department 

proposes to use this definition to define small institutions:

• Two-year IHEs, enrollment less than 500 FTE; and 

• Four-year IHEs, enrollment less than 1,000 FTE.

Table 3 shows the distribution of small institutions under this proposed definition using the 2016 

IPEDS institution file.36 

 

Chart” from the dropdown menu; click “Go”)

36 See U.S. Dept. of Educ., Nat’l Ctr. for Educ. Statistics, Integrated Postsecondary Educ. Data System 2016 

Institutional Characteristics: Directory Information survey file (2016), nces.ed.gov/ipeds/datacenter/DataFiles.aspx 

(select “Compare institutions;” select “By Groups” and then “EZ Group” in the drop down menu; select “Title IV 

Participating” and “U.S. Only” and then click the “Search” button; click “Continue;” select “Browse/Search 

Variables;” click the plus sign next to “institutional Characteristics” > “Control or Affiliation” > “Institutional 

Control or Affiliation” and click the check boxes for “2016-2017” and “Control of Institution;” then select 

“Institutional Characteristics” > “Institution classifications” > “1980-81 to current year” and check the boxes for 

“2016-2017” and “Sector of institution;” click the plus sign next to “Frequently Used/Derived Variables” > “Fall 

enrollment/retention rates” > Total, full- and part-time enrollment and fall FTE” and check the boxes next to “Fall 

2016-“ and “Total enrollment”).
114 

Table 3: Small Institutions under Proposed Definition 

Under the proposed definition, the two-year small institutions are 68% of all two-year 

institutions (2,708/3,962), 68% of all small institutions (2,708/3,996), and 39% of the 

overall population of institutions (2,708/6,951); whereas, four-year small institutions are 

43% of all four-year institutions (1,288/2,989), 32% of all small institutions (1,288/3,996), 

and 19% of the overall population of institutions (1,288/6,951). Figure 1 shows a visual 

representation of the universe and the percentage that would be defined as small using the 

above proposed definition. 

Level Type Small Total Percent

2-year Public 342 1,240 28% 

2-year Private 219 259 85% 

2-year Proprietary 2,147 2,463 87% 

4-year Public 64 759 8% 

4-year Private 799 1,672 48% 

4-year Proprietary 425 558 76% 

Total 3,996 6,951 57% 
115 

Figure 1: Small Institutions as a subset of all institutions

Similarly, small public institutions are 20% of all public institutions (406/1,999), 10% of all 

small public institutions (406/3,996), and 6% of the overall population of institutions 

(406/6,951). Small private nonprofit institutions are 53% of all private nonprofit institutions 

(1,018/1,999), 25% of all small institutions (1,018/3,996), and 15% of the overall 

population of institutions (1,018/6,951). Finally, and small proprietary institutions are 85% 

of all proprietary institutions (2,572/1,999), 64% of all small institutions (2,572/3,996), and 

37% of the overall population of institutions (2,572/6,951). The Department requests 

comment on the proposed definition. It will consider these suggestions in development of 

the final rule.

2. Impact Estimate Using Proposed Definition

2.a. Impact on Local Education Agencies

As disused in the Discussion of Costs, Benefits, and Transfers section of the Regulatory

Impact Analysis, the Department estimates that these proposed regulations will result in a net 
116 

cost savings for regulated entities, including LEAs. Although the savings accruing to any 

particular LEA depend on a number of factors, including the LEA’s Title IX enforcement history, 

its response to the proposed regulations, and the number of formal complaints of sexual 

harassment the LEA receives in the future, the Department was interested in whether the 

regulations would have a disproportionate effect on small LEAs—that is, whether small LEAs 

were likely to realize benefits proportionate to their size and number. 

Using data from the 2015-2016 Civil Rights Data Collection, we examined the number of 

allegations of harassment and bullying based on sex by LEA size. Given the extreme upper 

end of the enrollment distribution that qualifies an LEA as no longer a small entity for these 

purposes—less than one percent of all LEAs—it is reasonable to expect that the number of 

reported incidents of such harassment in small LEAs closely aligns with the average number 

for all LEAs. On average, LEAs reported 3.23 allegations of harassment or bullying on the 

basis of sex in the 2015-2016 school year. By comparison, large LEAs (those with more 

than 50,000 students) reported an average of 112.54 such incidents and small LEAs reported 

2.64 allegations on average. 

Based on the model described in the Discussion of Costs, Benefits, and Transfers section 

above, the Department estimates that a small LEA that experienced only an 8 percent 

reduction in investigations annually would experience a net cost savings over the ten year 

time horizon. 

2.b. Impact on Institutions of Higher Education 

As with LEAs, the Department estimates that these proposed regulations will result in a 

net cost savings for IHEs over the ten year time horizon. The amount of savings that any 

particular IHE will realize, if any, depends on a wide number of factors, including its Title 

IX compliance history, its response to the proposed regulations, and the number of formal 
117 

complaints of sexual harassment the IHE receives in the future. Regardless of these 

variables, the Department did analyze extant data sources to attempt to analyze the likely 

differential impact across IHEs of various sizes.

As noted in the Discussion of Costs, Benefits, and Transfers section of the Regulatory Impact 

Analysis, an analysis of data reported by IHEs under the Clery Act found that smaller institutions tended 

to have, on average, fewer such reports per IHE.37 Applying the definitions noted above, we also found 

that small entities had far fewer reports than did large entities.38 

Table 4: Average Clery Act Reports of Sexual Offenses by Size/Type of Institution

Level Type 

Not

Small

Small Total 

4-year Public 12.1 1.1 11.3 

4 –year Private 8.7 0.7 4.7 

4-year Proprietary 0.5 0.1 0.2 

2-year Public 0.7 0.2 0.7 

2-year Private 1.2 0.1 0.3 

2-year Proprietary 0.1 0.0 0.0 

Assuming that Clery Act reports are correlated with the number of incidents of sexual 

harassment under Title IX, we would assume that small institutions have a lower number of 

Title IX complaints each year. As a result, they may experience less cost savings under this 

proposed rule given the smaller baseline. This lower baseline may, however, be offset 

slightly by the higher relative number of investigations undertaken at smaller institutions, 

 

37 We note that although enrollment and the number of Clery Act reports are positively correlated, enrollment alone 

explains only 26 percent of the observed variation in the number of reports.

38 We note that this finding is driven largely by institutional size rather than a higher rate of offenses at larger 

institutions. Across all levels and school types, except for private 4-year institutions, small entities had higher rates 

of Clery Act reports per enrolled student than did larger ones. Private institutions generally had the highest rates, 

with private 4-year institutions having the highest rate of Clery Act reports of any category examined.
118 

as noted in the Senate report. Additionally, we note that small institutions also have a 

higher than average number of Clery Act reports occurring off-campus, indicating that they 

may also have a larger number of Title IX sexual harassment reports originating offcampus. In examining the model described in the Discussion of Costs, Benefits, and 

Transfers Section above, the Department estimates that, due to the small baseline number 

of investigations likely conducted by such entities currently, small institutions would need 

to realize a 37 percent reduction in investigations (equivalent to approximately one fewer 

investigation every five years) in order to realize a net cost savings across the 10 year time 

horizon. If the institution did not need to update its grievance procedures, it would only 

need to recognize a 33 percent reduction (approximately one fewer investigation every six

years).

Paperwork Reduction Act of 1995 

As part of its continuing effort to reduce paperwork and the burden of responding, the 

Department provides the general public and federal agencies with an opportunity to 

comment on proposed and continuing collections of information in accordance with the 

Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)). This requirement 

helps ensure that: the public understands the Department’s collection instructions; 

respondents can provide the requested data in the desired format; reporting burden (time 

and financial resources) is minimized; collection instruments are clearly understood; and the 

Department can properly assess the impact of collection requirements on respondents. The 

following sections contain information collection requirements: 

Section 106.45(b)(7)--Recordkeeping. 

Section 106.45(b)(7) would require recipients to maintain certain documentation regarding 

their Title IX activities. LEAs and IHEs would be required to create and maintain for a 
119 

period of three years records of: sexual harassment investigations; determinations; appeals; 

disciplinary sanctions and remedies; informal resolutions; materials used to train 

coordinators, investigators, and decision-makers; any actions, including supportive 

measures, taken in response to a report or formal complaint of sexual harassment; and 

documentation of the bases upon which the recipient concluded that its response was not 

clearly unreasonable and that its measures taken were designed to restore or preserve 

access to the recipient’s educational program or activity. This information will allow a 

recipient and OCR to assess on a longitudinal basis the prevalence of sexual harassment 

affecting access to a recipient’s programs and activities, whether a recipient is complying 

with Title IX when responding to reports and formal complaints, and the necessity for 

additional or different training. We estimate the volume of records to be created and 

retained may represent a decline from current recordkeeping due to clarification elsewhere 

in the proposed regulations that no investigation needs to be conducted where allegations, 

if true, do not constitute sexual harassment as defined under the regulations, and that 

informal means may be used to resolve sexual harassment complaints, both changes likely 

resulting in fewer investigative records being generated. We estimate that recipients would 

have a higher first-year cost associated with establishing the system for documentation 

with a lower out-year cost for maintaining it. At the LEA level, we assume that the Title IX 

Coordinator would spend 4 hours in Year 1 establishing the system and an administrative 

assistant would spend 8 hours doing so. At the IHE level, we assume recipients are less 

likely to use a paper filing system and are likely to use an electronic database for managing 

such information. Therefore, we assume it will take a Title IX Coordinator 24 hours, an 

administrative assistant 40 hours, and a database administrator 40 hours to set up the 

system for a total Year 1 estimated cost for 16,606 LEAs and 6,766 IHEs of approximately 
120 

$38,836,760. In later years, we assume that the systems will be relatively simple to 

maintain. At the LEA level, we assume it will take the Title IX Coordinator 2 hours and an 

administrative assistant 4 hours to do so. At the IHE level, we assume 4 hours from the 

Title IX Coordinator, 40 hours from an administrative assistant, and 8 hours from a 

database administrator. In total, we estimate an ongoing cost of approximately $15,189,260 

per year.

We estimate that LEAs would take 12 hours and IHEs would take 104 hours to establish 

and maintain a recordkeeping system for the required sexual harassment documentation 

during Year 1. In out-years, we estimate that LEAs would take 6 hours annually and IHEs 

would take 52 hours annually to maintain the recordkeeping requirement for Title IX 

sexual harassment documentation. The total burden for this recordkeeping requirement 

over three years is 398,544 hours for LEAs and 1,407,328 hours for IHEs. Collectively, 

we estimate the burden over three years for LEAs and IHEs for recordkeeping of Title IX 

sexual harassment documents would be 1,805,872 hours under OMB Control Number 

1870-NEW.

Section 106.44(b)(3). 

Section 106.44(b)(3) applies only to IHEs and would require that where a complainant 

reports sexual harassment but does not wish to file a formal complaint, the IHE would have 

a safe harbor against a finding of deliberate indifference where it offers the complainant 

supportive measures, but must inform the complainant in writing of the complainant’s right 

to file a formal complaint. This information provided by IHEs to complainants will ensure 

that complainants receive supportive measures to assist them in the aftermath of sexual 

harassment and also remain aware of their right to file a formal complaint that requires the 

IHE to investigate the sexual harassment allegations.
121 

We estimate that most IHEs will need to create a form, or modify a form they already use, 

to comply with this requirement to inform the complainant in writing. We estimate that it 

will take Title IX Coordinators one (1) hour in Year 1 to create or modify a form to use for 

these purposes, that there will be no cost in out-years, and that the cost of maintaining such 

a form is captured under the recordkeeping requirements of section 106.45(b)(7) described 

above, for a total Year 1 cost of $441,270. Total burden for this requirement over three 

years is 6,766 hours . 

Section 106.45(b)(2): Notice of Allegations 

Section 106.45(b)(2) would require all recipients, upon receipt of a formal complaint, to 

provide written notice to the complainant the respondent, informing the parties of the 

recipient’s grievance procedures and providing sufficient details of the sexual harassment 

allegations being investigated. This written notice will help ensure that the nature and scope 

of the investigation, and the recipient’s procedures, are clearly understood by the parties at 

the commencement of an investigation.

We estimate that most LEAs and IHEs will need to create a form, or modify one already 

used, to comply with these requirements. We estimate that it will take Title IX 

Coordinators one (1) hour to create or modify a form to use for these purposes, and that an 

attorney will spend 0.5 hours reviewing the form for compliance with section 106.45(b)(2). 

We estimate there will be no cost in out-years, and that the cost of maintaining such a form 

is captured under the recordkeeping requirements of section 106.45(b)(7) described above, 

for a total Year 1 cost of $2,584,310. Total burden for this requirement over three years is 

35,058 hours. 

Section 106.45(b)(6): Informal resolution 

Section 106.45(b)(6) would require that recipients who wish to provide parties with the 
122 

option of informal resolution of formal complaints, may offer this option to the parties but 

may only proceed by: first, providing the parties with written notice disclosing the sexual 

harassment allegations, the requirements of an informal resolution process, any 

consequences from participating in the informal resolution process; and second, obtaining 

the parties’ voluntary, written consent to the informal resolution process.

This provision permits—but does not require—LEAs and IHEs to allow for voluntary 

participation informal resolution as a method of resolving the allegations raised in formal 

complaints without completing the investigation and adjudication. 

We estimate that not all LEAs or IHEs will choose to offer informal resolution as a 

feature of their grievance process; of those who do, we estimate that most will need to 

create a form, or modify one already used, to comply with the requirements of this 

section. We estimate that it will take Title IX Coordinators one (1) hour to create or 

modify a form to use for these purposes, and that an attorney will spend 0.5 hours 

reviewing the form for compliance with section 106.45(b)(6). We estimate there will be 

no cost in out-years, and that the cost of maintaining such a form is captured under the 

recordkeeping requirements of section 106.45(b)(7) described above, for a total Year 1 

cost of $2,584,310. The total burden for this requirement over three years is 35,058 hours. 

Collection of Information

Regulatory section Information collection OMB Control Number and

estimated burden [change in

burden] 
123 

Regulatory section Information collection OMB Control Number and

estimated burden [change in

burden] 

106.45(b)(7) This proposed regulatory provision OMB 1870-NEW. The

would require LEAs and IHEs to burden over the first three 

maintain certain documentation related years would be $69,215,280 

to Title IX activities. and 1,805,872 hours. 

106.44(b)(3) This proposed regulatory provision OMB 1870-NEW. The

would require IHEs who offer burden over the first three 

supportive measures to notify the years would be $441,270 

complainant of the right to file a formal and 6,766 hours. 

complaint.

106.45(b)(2) This proposed regulatory provision OMB 1870-NEW. The

would require LEAs and IHEs to provide burden over the first three 

parties with written notice when years would be $2,584,310 

investigating a formal complaint. and 35,058 hours. 

106.45(b)(6) This proposed regulatory provision OMB 1870-NEW. The

would require LEAs and IHEs to provide burden over the first three 

written notice to parties wishing to years would be $2,584,310 

participate in informal resolution of a and 35,058 hours. 

formal complaint.

We have prepared an Information Collection Request (ICR) for these proposed 

requirements. If you want to review and comment on the ICR(s), please follow the 

instructions listed under the ADDRESSES section of this notice. Please note that the 
124 

Office of Information and Regulatory Affairs (OMB) and the Department of Education 

review all comments posted at www.regulations.gov.

When commenting on the information collection requirements, we consider your 

comments on these collections of information in--

• Deciding whether the collections are necessary for the proper performance of our 

functions, including whether the information will have practical use;

• Evaluating the accuracy of our estimate of the burden of the collections, including 

the validity of our methodology and assumptions; 

• Enhancing the quality, usefulness, and clarity of the information we collect; and

• Minimizing the burden on those who must respond, which includes exploring the 

use of appropriate automated, electronic, mechanical, or other technological collection 

techniques. 

ADDRESSES: Comments submitted in response to this notice should be submitted 

electronically through the Federal eRulemaking Portal at www.regulations.gov by

selecting Docket ID No. ED 2018-OCR-0064 or via postal mail, commercial delivery, or 

hand delivery. Please specify the Docket ID number and indicate “Information Collection 

Comments” on the top of your comments if your comment(s) relate to the information 

collection for this rule. Written requests for information or comments submitted by postal 

mail or delivery should be addressed to the Director of the Information Collection 

Clearance Division, U.S. Department of Education, 400 Maryland Avenue, SW., LBJ 216-

36, Washington, D.C. 20202-4537. Comments submitted by fax or email and those 

submitted after the comment period will not be accepted. FOR FURTHER 

INFORMATION CONTACT: Electronically mail ICDocketMgr@ed.gov. Please do not 

send comments here.
125 

Intergovernmental Review

This program is not subject to Executive Order 12372 and the regulations in 34 CFR part

79 because it is not a program or activity of the Department that provides federal 

financial assistance.

Assessment of Educational Impact 

In accordance with section 411 of the General Education Provisions Act, 20 U.S.C. 1221e4, the Secretary particularly requests comments on whether these proposed regulations 

would require transmission of information that any other agency or authority of the United 

States gathers or makes available.

Federalism

Executive Order 13132 requires us to ensure meaningful and timely input by State and local 

elected officials in the development of regulatory policies that have federalism implications. 

‘‘Federalism implications’’ means substantial direct effects on the States, on the 

relationship between the National Government and the States, or on the distribution of 

power and responsibilities among the various levels of government. The proposed 

regulations in 34 CFR 106.34 and 34 CFR 106.35 may have federalism implications, as 

defined in Executive Order 13132. We encourage State and local elected officials to review 

and provide comments on these proposed regulations. 

Accessible Format

Individuals with disabilities can obtain this document in an accessible format (e.g., braille, 

large print, audiotape, or compact disc) on request to the person listed under FOR 

FURTHER INFORMATION CONTACT.

Electronic Access to This Document

The official version of this document is the document published in the Federal Register. 

Free internet access to the official edition of the Federal Register and the Code of Federal 
126 

Regulations is available via the Federal Digital System at: www.gpo.gov/fdsys. You can 

view this document at that site, as well as all other documents of this Department published 

in the Federal Register, in text or PDF. To use PDF, you must have Adobe Acrobat Reader, 

which is available free at the site.

You may also access documents of the Department published in the Federal Register by 

using the article search feature at: www.federalregister.gov. Through the advanced search

feature at this site, you can limit your search to documents published by the Department. 

List of Subjects in 34 CFR Part 106 

Education, Sex discrimination, Civil rights, Sexual harassment 

Dated: November 15, 2018 

Betsy DeVos

Secretary of Education 
127 

For the reasons discussed in the preamble, the Secretary proposes to amend part 106 of 

title 34 of the Code of Federal Regulations as follows: 

PART 106—NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION

PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE

1. The authority citation for part 106 continues to read as follows: 

Authority: 20 U.S.C. 1681 et seq., unless otherwise noted. 

2. Section 106.3 is amended by revising the title and paragraph (a) to read as 

follows: 

§ 106.3 Available remedies 

(a) Remedial action. If the Assistant Secretary finds that a recipient has violated 

this part, such recipient shall take such remedial action as the Assistant Secretary deems 

necessary to remedy the violation, which shall not include assessment of damages against 

the recipient. Nothing herein prohibits the Assistant Secretary from deeming necessary 

equitable relief to remedy a violation of this part.

* * * * * 

3. Section 106.6 is amended by revising the title and adding paragraphs (d), (e) 

and (f) to read as follows: 

§ 106.6 Effect of other requirements and preservation of rights. 

* * * * * 

(d) Constitutional protections. Nothing in this part requires a recipient to: 

(1) Restrict any rights that would otherwise be protected from government action 

2by the First Amendment of the U.S. Constitution;
128 

(2) Deprive a person of any rights that would otherwise be protected from 

government action under the Due Process Clauses of the Fifth and Fourteenth 

Amendments of the U.S. Constitution; or 

(3) Restrict any other rights guaranteed against government action by the U.S. 

Constitution. 

(e) Effect of Section 444 of General Education Provisions Act (GEPA)/Family 

Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g and 34 CFR Part 99. 

The obligation to comply with this part is not obviated or alleviated by the FERPA statute 

or regulations. 

(f) Title VII of the Civil Rights Act of 1964. Nothing in this part shall be read in 

derogation of an employee’s rights under title VII of the Civil Rights Act of 1964, 42 

U.S.C. 2000e et seq. or any regulations promulgated thereunder. 

* * * * * 

4. Section 106.8 is revised to read as follows:

§ 106.8 Designation of coordinator, dissemination of policy, and adoption of 

grievance procedures.

(a) Designation of coordinator. Each recipient must designate at least one 

employee to coordinate its efforts to comply with its responsibilities under this part. The 

recipient must notify all its students and employees of the name or title, office address, 

electronic mail address, and telephone number of the employee or employees designated 

pursuant to this paragraph.

(b) Dissemination of policy.
129 

(1) Notification of policy. Each recipient must notify applicants for admission and 

employment, students, employees, and all unions or professional organizations holding 

collective bargaining or professional agreements with the recipient that it does not 

discriminate on the basis of sex in the education program or activity that it operates, and 

that it is required by title IX and this part not to discriminate in such a manner. Such 

notification must state that the requirement not to discriminate in the education program 

or activity extends to employment and admission (unless Subpart C does not apply to the 

recipient) and that inquiries about the application of title IX and this part to such recipient 

may be referred to the employee designated pursuant to section 106.8(a), to the Assistant 

Secretary, or both. 

(2) Publications. 

(i) Each recipient must prominently display a statement of the policy described in 

paragraph (b)(1) of this section on its website, if any, and in each handbook or catalog 

that it makes available to persons entitled to a notification under paragraph (b)(1) of this 

section.

(ii) A recipient must not use or distribute a publication stating that the recipient 

treats applicants, students, or employees differently on the basis of sex except as such 

treatment is permitted by this part.

(c) Adoption of grievance procedures. A recipient must adopt and publish 

grievance procedures that provide for the prompt and equitable resolution of student and 

employee complaints alleging any action that would be prohibited by this part and of 

formal complaints as defined in section 106.44(e)(5). A recipient must provide notice of 
130 

the recipient’s grievance procedures, including how to report sex discrimination and how 

to file or respond to a complaint of sex discrimination, to students and employees. 

(d) Application. The requirements that a recipient adopt a policy and grievance 

procedures as described in this section apply only to exclusion from participation, denial 

of benefits, or discrimination on the basis of sex occurring against a person in the United 

States.

* * * * * 

5. Section 106.9 is removed and reserved.

6. Section 106.12 is amended by revising paragraph (b) to read as follows: 

* * * * * 

(b) Assurance of exemption. An educational institution that seeks assurance of the 

exemption set forth in paragraph (a) of this section may do so by submitting in writing to 

the Assistant Secretary a statement by the highest ranking official of the institution, 

identifying the provisions of this part that conflict with a specific tenet of the religious 

organization. An institution is not required to seek assurance from the Assistant Secretary 

in order to assert such an exemption. In the event the Department notifies an institution 

that it is under investigation for noncompliance with this part and the institution wishes to 

assert an exemption set forth in paragraph (a) of this section, the institution may at that 

time raise its exemption by submitting in writing to the Assistant Secretary a statement by 

the highest ranking official of the institution, identifying the provisions of this part which 

conflict with a specific tenet of the religious organization, whether or not the institution 

had previously sought assurance of the exemption from the Assistant Secretary. 

* * * * * 
131 

7. Subpart D—Discrimination on the Basis of Sex in Education Program or 

Activities Prohibited is amended by adding sections 106.44 and 106.45 to read as 

follows: 

§ 106.44 Recipient’s response to sexual harassment. 

(a) General. A recipient with actual knowledge of sexual harassment in an 

education program or activity of the recipient against a person in the United States must 

respond in a manner that is not deliberately indifferent. A recipient is deliberately 

indifferent only if its response to sexual harassment is clearly unreasonable in light of the 

known circumstances.

(b) Specific circumstances.

(1) A recipient must follow procedures consistent with section 106.45 in response 

to a formal complaint. If the recipient follows procedures (including implementing any 

appropriate remedy as required) consistent with section 106.45 in response to a formal 

complaint, the recipient’s response to the formal complaint is not deliberately indifferent 

and does not otherwise constitute discrimination under title IX.

(2) When a recipient has actual knowledge regarding reports by multiple 

complainants of conduct by the same respondent that could constitute sexual harassment, 

the Title IX Coordinator must file a formal complaint. If the Title IX Coordinator files a 

formal complaint in response to the reports, and the recipient follows procedures 

(including implementing any appropriate remedy as required) consistent with section

106.45 in response to the formal complaint, the recipient’s response to the reports is not 

deliberately indifferent.
132 

(3) For institutions of higher education, a recipient is not deliberately indifferent 

when in the absence of a formal complaint the recipient offers and implements supportive 

measures designed to effectively restore or preserve the complainant’s access to the 

recipient’s education program or activity. At the time supportive measures are offered, 

the recipient must in writing inform the complainant of the right to file a formal 

complaint at that time or a later date, consistent with other provisions of this part.

(4) If paragraphs (b)(1) through (b)(3) of this section are not implicated, a 

recipient with actual knowledge of sexual harassment in an education program or activity 

of the recipient against a person in the United States must, consistent with paragraph (a) 

of this section, respond in a manner that is not deliberately indifferent. A recipient is 

deliberately indifferent only if its response to sexual harassment is clearly unreasonable 

in light of the known circumstances.

(5) The Assistant Secretary will not deem a recipient’s determination regarding 

responsibility to be evidence of deliberate indifference by the recipient merely because 

the Assistant Secretary would have reached a different determination based on an 

independent weighing of the evidence.

(c) Emergency removal. Nothing in this section precludes a recipient from 

removing a respondent from the recipient’s education program or activity on an 

emergency basis, provided that the recipient undertakes an individualized safety and risk 

analysis, determines that an immediate threat to the health or safety of students or 

employees justifies removal, and provides the respondent with notice and an opportunity 

to challenge the decision immediately following the removal. This provision shall not be 

construed to modify any rights under the Individuals with Disabilities Education Act,
133 

Section 504 of the Rehabilitation Act of 1973, or title II of the Americans with 

Disabilities Act.

(d) Administrative leave. Nothing in this section precludes a recipient from 

placing a non-student employee respondent on administrative leave during the pendency 

of an investigation. 

(e) Definitions. As used in this part:

(1) Sexual harassment means:

(i) An employee of the recipient conditioning the provision of an aid, benefit, or 

service of the recipient on an individual’s participation in unwelcome sexual conduct; 

(ii) 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; or

(iii) Sexual assault, as defined in 34 CFR 668.46(a). 

(2) Complainant means an individual who has reported being the victim of 

conduct that could constitute sexual harassment, or on whose behalf the Title IX 

Coordinator has filed a formal complaint. For purposes of this subsection, the person to 

whom the individual has reported must be the Title IX Coordinator or another person to

whom notice of sexual harassment results in the recipient’s actual knowledge under 

section 106.44(e)(6). 

(3) Respondent means an individual who has been reported to be the perpetrator 

of conduct that could constitute sexual harassment.

(4) Supportive measures means non-disciplinary, non-punitive individualized 

services offered as appropriate, as reasonably available, and without fee or charge to the 
134 

complainant or the respondent before or after the filing of a formal complaint or where no 

formal complaint has been filed. Such measures are designed to restore or preserve access 

to the recipient’s education program or activity, without unreasonably burdening the 

other party; protect the safety of all parties and the recipient’s educational environment; 

and deter sexual harassment. Supportive measures may include counseling, extensions of 

deadlines or other course-related adjustments, modifications of work or class schedules, 

campus escort services, mutual restrictions on contact between the parties, changes in 

work or housing locations, leaves of absence, increased security and monitoring of 

certain areas of the campus, and other similar measures. The recipient must maintain as 

confidential any supportive measures provided to the complainant or respondent, to the 

extent that maintaining such confidentiality would not impair the ability of the institution 

to provide the supportive measures. The Title IX Coordinator is responsible for 

coordinating the effective implementation of supportive measures.

(5) Formal complaint means a document signed by a complainant or by the Title 

IX Coordinator alleging sexual harassment against a respondent about conduct within its 

education program or activity and requesting initiation of the recipient’s grievance 

procedures consistent with section 106.45. 

(6) Actual knowledge means notice of sexual harassment or allegations of sexual 

harassment to a recipient’s Title IX Coordinator or any official of the recipient who has 

authority to institute corrective measures on behalf of the recipient, or to a teacher in the 

elementary and secondary context with regard to student-on-student harassment. 

Imputation of knowledge based solely on respondeat superior or constructive notice is 

insufficient to constitute actual knowledge. This standard is not met when the only 
135 

official of the recipient with actual knowledge is also the respondent. The mere ability or 

obligation to report sexual harassment does not qualify an employee, even if that 

employee is an official, as one who has authority to institute corrective measures on 

behalf of the recipient.

§ 106.45 Grievance procedures for formal complaints of sexual harassment. 

(a) Discrimination on the basis of sex. A recipient’s treatment of a complainant in 

response to a formal complaint of sexual harassment may constitute discrimination on the 

basis of sex under title IX. A recipient’s treatment of the respondent may also constitute 

discrimination on the basis of sex under title IX.

(b) Grievance procedures. For the purpose of addressing formal complaints of 

sexual harassment, grievance procedures must comply with the requirements of this 

section.

(1) Basic requirements for grievance procedures. Grievance procedures must— 

(i) Treat complainants and respondents equitably. An equitable resolution for a 

complainant must include remedies where a finding of responsibility for sexual 

harassment has been made against the respondent; such remedies must be designed to 

restore or preserve access to the recipient’s education program or activity. An equitable 

resolution for a respondent must include due process protections before any disciplinary 

sanctions are imposed; 

(ii) Require an objective evaluation of all relevant evidence – including both 

inculpatory and exculpatory evidence – and provide that credibility determinations may 

not be based on a person’s status as a complainant, respondent, or witness;
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(iii) Require that any individual designated by a recipient as a coordinator, 

investigator, or decision-maker not have a conflict of interest or bias for or against 

complainants or respondents generally or an individual complainant or respondent. A 

recipient must ensure that coordinators, investigators, and decision-makers receive 

training on both the definition of sexual harassment and how to conduct an investigation 

and grievance process, including hearings, if applicable, that protect the safety of 

students, ensure due process protections for all parties, and promote accountability. Any 

materials used to train coordinators, investigators, or decision-makers may not rely on sex 

stereotypes and must promote impartial investigations and adjudications of sexual 

harassment;

(iv) Include a presumption that the respondent is not responsible for the alleged 

conduct until a determination regarding responsibility is made at the conclusion of the 

grievance process;

(v) Include reasonably prompt timeframes for conclusion of the grievance 

process, including reasonably prompt timeframes for filing and resolving appeals if the 

recipient offers an appeal, and a process that allows for the temporary delay of the 

grievance process or the limited extension of timeframes for good cause with written 

notice to the complainant and the respondent of the delay or extension and the reasons for 

the action. Good cause may include considerations such as the absence of the parties or 

witnesses, concurrent law enforcement activity, or the need for language assistance or 

accommodation of disabilities;

(vi) Describe the range of possible sanctions and remedies that the recipient may 

implement following any determination of responsibility; 
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(vii) Describe the standard of evidence to be used to determine responsibility; 

(viii) Include the procedures and permissible bases for the complainant and 

respondent to appeal if the recipient offers an appeal; and

(ix) Describe the range of supportive measures available to complainants and 

respondents. 

(2) Notice of allegations. 

(i) Notice upon receipt of formal complaint. Upon receipt of a formal complaint, a 

recipient must provide the following written notice to the parties who are known: 

(A) Notice of the recipient’s grievance procedures. 

(B) Notice of the allegations constituting a potential violation of the recipient’s 

code of conduct, including sufficient details known at the time and with sufficient time to 

prepare a response before any initial interview. Sufficient details include the identities of 

the parties involved in the incident, if known, the specific section of the recipient’s code 

of conduct allegedly violated, the conduct allegedly constituting sexual harassment under 

this part and under the recipient’s policy, and the date and location of the alleged 

incident, if known. The written notice must include a statement that the respondent is 

presumed not responsible for the alleged conduct and that a determination regarding 

responsibility is made at the conclusion of the grievance process. The written notice must 

also inform the parties that they may request to inspect and review evidence under 

paragraph (b)(3)(viii) of this section and inform the parties of any provision in the 

recipient’s code of conduct that prohibits knowingly making false statements or 

knowingly submitting false information during the grievance process.
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(ii) Ongoing notice requirement. If, in the course of an investigation, the recipient 

decides to investigate allegations not included in the notice provided pursuant to 

paragraph (b)(2)(i)(B) of this section, the recipient must provide notice of the additional 

allegations to the parties, if known. 

(3) Investigations of a formal complaint. The recipient must investigate the 

allegations in a formal complaint. If the conduct alleged by the complainant would not 

constitute sexual harassment as defined in section 106.44(e) even if proved or did not 

occur within the recipient’s program or activity, the recipient must dismiss the formal 

complaint with regard to that conduct. When investigating a formal complaint, a recipient 

must— 

(i) Ensure that the burden of proof and the burden of gathering evidence sufficient 

to reach a determination regarding responsibility rest on the recipient and not on the 

parties;

(ii) Provide equal opportunity for the parties to present witnesses and other 

inculpatory and exculpatory evidence;

(iii) Not restrict the ability of either party to discuss the allegations under 

investigation or to gather and present relevant evidence;

(iv) Provide the parties with the same opportunities to have others present during 

any grievance proceeding, including the opportunity to be accompanied to any related 

meeting or proceeding by the advisor of their choice, and not limit the choice of advisor 

or presence for either the complainant or respondent in any meeting or grievance 

proceeding; however, the recipient may establish restrictions regarding the extent to
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which the advisor may participate in the proceedings, as long as the restrictions apply 

equally to both parties; 

(v) Provide to the party whose participation is invited or expected written notice 

of the date, time, location, participants, and purpose of all hearings, investigative 

interviews, or other meetings with a party, with sufficient time for the party to prepare to 

participate;

(vi) For recipients that are elementary and secondary schools, the recipient’s 

grievance procedure may require a live hearing. With or without a hearing, the decisionmaker must, after the recipient has incorporated the parties’ responses to the investigative 

report under paragraph (b)(3)(ix) of this section, ask each party and any witnesses any 

relevant questions and follow-up questions, including those challenging credibility, that a 

party wants asked of any party or witnesses. If no hearing is held, the decision-maker 

must afford each party the opportunity to submit written questions, provide each party 

with the answers, and allow for additional, limited follow-up questions from each party. 

With or without a hearing, all such questioning must exclude evidence of the 

complainant’s sexual behavior or predisposition, unless such evidence about the 

complainant’s sexual behavior is offered to prove that someone other than the respondent 

committed the conduct alleged by the complainant, or if the evidence concerns specific 

incidents of the complainant’s sexual behavior with respect to the respondent and is 

offered to prove consent. The decision-maker must explain to the party proposing the 

questions any decision to exclude questions as not relevant;

(vii) For institutions of higher education, the recipient’s grievance procedure must 

provide for a live hearing. At the hearing, the decision-maker must permit each party to
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ask the other party and any witnesses all relevant questions and follow-up questions, 

including those challenging credibility. Such cross-examination at a hearing must be 

conducted by the party’s advisor of choice, notwithstanding the discretion of the recipient 

under subsection 106.45(b)(3)(iv) to otherwise restrict the extent to which advisors may 

participate in the proceedings. If a party does not have an advisor present at the hearing, 

the recipient must provide that party an advisor aligned with that party for to conduct 

cross-examination. All cross-examination must exclude evidence of the complainant’s 

sexual behavior or predisposition, unless such evidence about the complainant’s sexual 

behavior is offered to prove that someone other than the respondent committed the 

conduct alleged by the complainant, or if the evidence concerns specific incidents of the 

complainant’s sexual behavior with respect to the respondent and is offered to prove 

consent. At the request of either party, the recipient must provide for cross-examination 

to occur with the parties located in separate rooms with technology enabling the decisionmaker and parties to simultaneously see and hear the party answering questions. The 

decision-maker must explain to the party’s advisor asking cross-examination questions 

any decision to exclude questions as not relevant. If a party or witness does not submit to 

cross-examination at the hearing, the decision-maker must not rely on any statement of 

that party or witness in reaching a determination regarding responsibility; 

(viii) Provide both parties an equal opportunity to inspect and review any 

evidence obtained as part of the investigation that is directly related to the allegations 

raised in a formal complaint, including the evidence upon which the recipient does not 

intend to rely in reaching a determination regarding responsibility, so that each party can 

meaningfully respond to the evidence prior to conclusion of the investigation. Prior to
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completion of the investigative report, the recipient must send to each party and the 

party’s advisor, if any, the evidence subject to inspection and review in an electronic 

format, such as a file sharing platform, that restricts the parties and advisors from 

downloading or copying the evidence, and the parties shall have at least ten days to 

submit a written response, which the investigator will consider prior to completion of the 

investigative report. The recipient must make all such evidence subject herein to the 

parties’ inspection and review available at any hearing to give each party equal 

opportunity to refer to such evidence during the hearing, including for purposes of crossexamination; and

(ix) Create an investigative report that fairly summarizes relevant evidence and, 

at least ten days prior to a hearing (if a hearing is required under section 106.45) or other 

time of determination regarding responsibility, provide a copy of the report to the parties 

for their review and written response. 

(4) Determination regarding responsibility.

(i) The decision-maker(s), who cannot be the same person(s) as the Title IX 

Coordinator or the investigator(s), must issue a written determination regarding 

responsibility. To reach this determination, the recipient must apply either the 

preponderance of the evidence standard or the clear and convincing evidence standard, 

although the recipient may employ the preponderance of the evidence standard only if the 

recipient uses that standard for conduct code violations that do not involve sexual 

harassment but carry the same maximum disciplinary sanction. The recipient must also 

apply the same standard of evidence for complaints against students as it does for 

complaints against employees, including faculty.
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(ii) The written determination must include— 

(A) Identification of the section(s) of the recipient’s code of conduct alleged to 

have been violated; 

(B) A description of the procedural steps taken from the receipt of the complaint 

through the determination, including any notifications to the parties, interviews with

parties and witnesses, site visits, methods used to gather other evidence, and hearings 

held; 

(C) Findings of fact supporting the determination;

(D) Conclusions regarding the application of the recipient’s policy to the facts;

(E) A statement of, and rationale for, the result as to each allegation, including a 

determination regarding responsibility, any sanctions the recipient imposes on the 

respondent, and any remedies provided by the recipient to the complainant designed to 

restore or preserve access to the recipient’s education program or activity;

(F) The recipient’s procedures and permissible bases for the complainant and 

respondent to appeal, if the recipient offers an appeal.

(iii) The recipient must provide the written determination to the parties 

simultaneously. If the recipient does not offer an appeal, the determination regarding 

responsibility becomes final on the date that the recipient provides the parties with the 

written determination. If the recipient offers an appeal, the determination regarding 

responsibility becomes final at either the conclusion of the appeal process, if an appeal is 

filed, or, if an appeal is not filed, the date on which an appeal would no longer be 

considered timely;

(5) Appeals. A recipient may choose to offer an appeal. If a recipient offers an
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appeal, it must allow both parties to appeal. In cases where there has been a finding of 

responsibility, although a complainant may appeal on the ground that the remedies are 

not designed to restore or preserve the complainant’s access to the recipient’s education 

program or activity, a complainant is not entitled to a particular sanction against the 

respondent. As to all appeals, the recipient must: (i) notify the other party in writing when 

an appeal is filed and implement appeal procedures equally for both parties; (ii) ensure 

that the appeal decision-maker is not the same person as any investigator(s) or decisionmaker(s) that reached the determination of responsibility; (iii) ensure that the appeal 

decision-maker complies with the standards set forth in section 106.45(b)(1)(iii); (iv) give 

both parties a reasonable, equal opportunity to submit a written statement in support of, 

or challenging, the outcome; (v) issue a written decision describing the result of the 

appeal and the rationale for the result; and (vi) provide the written decision 

simultaneously to both parties.

(6) Informal resolution. At any time prior to reaching a determination regarding 

responsibility the recipient may facilitate an informal resolution process, such as 

mediation, that does not involve a full investigation and adjudication, provided that the 

recipient--

(i) Provides to the parties a written notice disclosing--

(A) The allegations;

(B) The requirements of the informal resolution process including the 

circumstances under which it precludes the parties from resuming a formal complaint 

arising from the same allegations, if any; and
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(C) Any consequences resulting from participating in the informal resolution 

process, including the records that will be maintained or could be shared; and

(ii) Obtains the parties’ voluntary, written consent to the informal resolution 

process.

(7) Recordkeeping. 

(i) A recipient must create, make available to the complainant and respondent, and 

maintain for a period of three years records of--

(A) Each sexual harassment investigation including any determination regarding 

responsibility, any disciplinary sanctions imposed on the respondent, and any remedies 

provided to the complainant designed to restore or preserve access to the recipient’s 

education program or activity;

(B) Any appeal and the result therefrom;

(C) Informal resolution, if any; and 

(D) All materials used to train coordinators, investigators, and decision-makers 

with regard to sexual harassment.

(ii) A recipient must create and maintain for a period of three years records of any 

actions, including any supportive measures, taken in response to a report or formal 

complaint of sexual harassment. In each instance, the recipient must document the basis 

for its conclusion that its response was not clearly unreasonable, and document that it has 

taken measures designed to restore or preserve access to the recipient’s educational 

program or activity. The documentation of certain bases or measures does not limit the 

recipient in the future from providing additional explanations or detailing additional 

measures taken.