II 

118TH CONGRESS 

1ST SESSION S. 1017 

To amend title IX of the Education Amendments of 1972 to ensure due 

process in grievance proceedings. 

IN THE SENATE OF THE UNITED STATES 

MARCH 28, 2023 

Mr. KENNEDY introduced the following bill; which was read twice and referred 

to the Committee on Health, Education, Labor, and Pensions 

A BILL 

To amend title IX of the Education Amendments of 1972 

to ensure due process in grievance proceedings. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Ensuring Fairness for 

5 Students Act’’. 

6 SEC. 2. ENSURING DUE PROCESS IN TITLE IX CLAIMS. 

7 Section 901 of the Education Amendments of 1972 

8 (20 U.S.C. 1681) is amended by adding at the end the 

9 following: 

10 ‘‘(d) ENSURING DUE PROCESS.— 


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1 ‘‘(1) SEXUAL HARASSMENT.—In this section, 

2 the term ‘sexual harassment’ has the meaning given 

3 the term in section 106.30 of title 34, Code of Fed4 eral Regulations, or any successor regulation. 

5 ‘‘(2) IMPLEMENTATION REQUIREMENT.—Not 

6 later than 12 months after the date of enactment of 

7 the Ensuring Fairness for Students Act, each edu8 cational institution to which this section applies shall 

9 implement a grievance process to investigate and ad10 judicate formal complaints of sexual harassment 

11 that incorporates due process principles, treats all 

12 parties fairly, and reaches reliable responsibility de13 terminations. 

14 ‘‘(3) GRIEVANCE PROCESS.—Each grievance 

15 process implemented under paragraph (2) shall com16 ply with each of the following: 

17 ‘‘(A) Give both parties— 

18 ‘‘(i) written notice of the allegation; 

19 ‘‘(ii) an equal opportunity to select an 

20 advisor of the party’s choice (who may be, 

21 but does not need to be, an attorney); and 

22 ‘‘(iii) an equal opportunity to submit 

23 and review evidence throughout the inves24 tigation of the allegation. 


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1 ‘‘(B) Use personnel who are trained in 

2 compliance with requirements under this title to 

3 objectively evaluate all relevant evidence without 

4 prejudgment of the facts at issue and free from 

5 conflicts of interest or bias for or against either 

6 party. 

7 ‘‘(C) Protect both parties’ privacy by re8 quiring a party’s written consent before using 

9 the party’s medical, psychological, or similar 

10 treatment records during the grievance process. 

11 ‘‘(D) Obtain both parties’ voluntary, writ12 ten consent before using any kind of informal 

13 resolution process, such as mediation or restor14 ative justice. 

15 ‘‘(E) Not use an informal resolution proc16 ess, as described in subparagraph (D), in cases 

17 where an employee of the educational institu18 tion is alleged to have sexually harassed a stu19 dent. 

20 ‘‘(F) Apply a presumption that the re21 spondent is not responsible during the grievance 

22 process, so that the educational institution 

23 bears the burden of proof and the standard of 

24 evidence is applied correctly. 


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1 ‘‘(G) Ensure the decision-maker is not the 

2 same person as the investigator or the Title IX 

3 Coordinator (who is the individual designated 

4 as a responsible employee in section 106.8(a) of 

5 title 34, Code of Federal Regulations, as such 

6 section is in effect on the date of enactment of 

7 the Ensuring Fairness for Students Act). 

8 ‘‘(H) For educational institutions that 

9 are— 

10 ‘‘(i) postsecondary institutions, hold a 

11 live hearing and— 

12 ‘‘(I) allow cross-examination by 

13 the advisors of the parties; and 

14 ‘‘(II) not permit cross-examina15 tion by the parties personally; and 

16 ‘‘(ii) elementary schools or secondary 

17 schools, provide an opportunity for each 

18 party to submit written questions for the 

19 other party and any witness to answer. 

20 ‘‘(I) Offer both parties an equal oppor21 tunity to appeal. 

22 ‘‘(J) Protect any individual, including com23 plainants, respondents, and witnesses, from re24 taliation for reporting sexual harassment or 


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1 participating (or refusing to participate) in the 

2 grievance process. 

3 ‘‘(K) Document and keep records of all 

4 sexual harassment reports and investigations.’’. 

Æ 


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