41390 Federal Register / Vol. 87, No. 132 / Tuesday, July 12, 2022 / Proposed Rules 

1Throughout this preamble, the term ‘‘sex 

discrimination’’ means ‘‘discrimination on the basis 

of sex’’ as that language is used in the statutory text 

of Title IX. 

DEPARTMENT OF EDUCATION 

34 CFR Part 106 

[Docket ID ED–2021–OCR–0166] 

RIN 1870–AA16 

Nondiscrimination on the Basis of Sex 

in Education Programs or Activities 

Receiving Federal Financial 

Assistance 

AGENCY: Office for Civil Rights, 

Department of Education. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The U.S. Department of 

Education (Department) proposes to 

amend the regulations implementing 

Title IX of the Education Amendments 

of 1972 (Title IX). The purpose of the 

proposed regulations is to better align 

the Title IX regulatory requirements 

with Title IX’s nondiscrimination 

mandate, and to clarify the scope and 

application of Title IX and the 

obligation of all schools, including 

elementary schools, secondary schools, 

postsecondary institutions, and other 

recipients that receive Federal financial 

assistance from the Department (referred 

to below as recipients or schools) to 

provide an educational environment 

free from discrimination on the basis of 

sex, including through responding to 

incidents of sex discrimination. The 

Department recognizes that schools vary 

in size, student populations, and 

administrative structure. The proposed 

regulations would enable all schools to 

meet their obligations to comply fully 

with Title IX while providing them 

appropriate discretion and flexibility to 

account for these variations. 

DATES: Comments must be received on 

or before September 12, 2022. 

ADDRESSES: Comments must be 

submitted via the Federal eRulemaking 

Portal at http://www.regulations.gov. 

However, if you require an 

accommodation or cannot otherwise 

submit your comments via http://

www.regulations.gov, please contact the 

program contact person listed under FOR

FURTHER INFORMATION CONTACT. The 

Department will not accept comments 

by fax or by email, or comments 

submitted after the comment period 

closes. To ensure that the Department 

does not receive duplicate copies, 

please submit your comments only 

once. Additionally, please include the 

Docket ID at the top of your comments. 

The Department strongly encourages 

you to submit any comments or 

attachments in Microsoft Word format. 

If you must submit a comment in Adobe 

Portable Document Format (PDF), the 

Department strongly encourages 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 

Department to electronically search and 

copy certain portions of your 

submissions to assist in the rulemaking 

process. 

• Federal eRulemaking Portal: Please 

go to http://www.regulations.gov to 

submit your comments electronically. 

Information on using http://

www.regulations.gov, including 

instructions for finding a rule on the site 

and submitting comments, is available 

on the site under ‘‘FAQ.’’ 

Note: The Department’s policy is to 

generally make comments received from 

members of the public available for public 

viewing on the Federal eRulemaking Portal at 

http://www.regulations.gov. Therefore, 

commenters should include in their 

comments only information about themselves 

that they wish to make publicly available. 

Commenters should not include in their 

comments any information that identifies 

other individuals or that permits readers to 

identify other individuals. If, for example, 

your comment describes an experience of 

someone other than yourself, please do not 

identify that individual or include 

information that would allow readers to 

identify that individual. The Department will 

not make comments that contain personally 

identifiable information (PII) about someone 

other than the commenter publicly available 

on http://www.regulations.gov for privacy 

reasons. This may include comments where 

the commenter refers to a third-party 

individual without using their name if the 

Department determines that the comment 

provides enough detail that could allow one 

or more readers to link the information to the 

third party. If your comment refers to a thirdparty individual, to help ensure that your 

comment is posted, please consider 

submitting your comment anonymously to 

reduce the chance that information in your 

comment about a third party could be linked 

to the third party. The Department will also 

not make comments that contain threats of 

harm to another person or to oneself 

available on http://www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Alejandro Reyes, U.S. Department of 

Education, 400 Maryland Ave. SW, 

PCP–6125, Washington, DC 20202. 

Telephone: 202–245–7705. You may 

also email your questions to T9NPRM@

ed.gov, but as described above, 

comments must be submitted via the 

Federal eRulemaking Portal at http://

www.regulations.gov. 

If you are deaf, hard of hearing, or 

have a speech disability and wish to 

access telecommunications relay 

services, please dial 7–1–1. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

Purpose of This Regulatory Action 

The Department’s review of the 

current regulations and of information 

received during and pursuant to a weeklong public hearing as well as 

stakeholder listening sessions and 

meetings suggest that the current 

regulations do not best fulfill the 

requirement of Title IX of the Education 

Amendments of 1972 (Title IX) that 

schools and institutions that receive 

Federal financial assistance eliminate 

discrimination on the basis of sex in 

their education programs or activities. 

The Department therefore proposes that 

the current regulations should be 

amended to provide greater clarity 

regarding the scope of sex 

discrimination, including recipients’ 

obligations not to discriminate based on 

sex stereotypes, sex characteristics, 

pregnancy or related conditions, sexual 

orientation, and gender identity. 

Further, the Department proposes that 

the current regulations could better 

account for the variety of education 

programs or activities covered by Title 

IX, which include recipients’ education 

programs or activities serving students 

in elementary schools, secondary 

schools, and postsecondary institutions. 

The Department makes these 

proposals based on an extensive review 

of its regulations implementing Title IX, 

as well as the live and written 

comments received during a nationwide 

virtual public hearing on Title IX held 

in June 2021. In addition, in 2021, the 

Office for Civil Rights held numerous 

listening sessions with a wide array of 

stakeholders on various issues related to 

Title IX and considered input from 

stakeholders during meetings held in 

2022 under Executive Order 12866, after 

the NPRM was submitted to OMB. 

Executive Order on Regulatory Planning 

and Review, E.O. 12866, 58 FR 51735 

(Oct. 4, 1993), https://www.govinfo.gov/ 

content/pkg/FR-1993-10-04/pdf/FR1993-10-04.pdf. To address these 

concerns, the Department proposes 

amending the Title IX regulations to: 

• Require recipients to adopt 

grievance procedures that provide for 

the prompt and equitable resolution of 

complaints of sex discrimination and 

take other necessary steps to provide an 

educational environment free from sex 

discrimination; 1

• Clarify the Department’s view of the 

scope of Title IX’s prohibition on sex 

discrimination, including related to a 


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Federal Register / Vol. 87, No. 132 / Tuesday, July 12, 2022 / Proposed Rules 41391 

hostile environment under the 

recipient’s education program or 

activity, as well as discrimination on the 

basis of sex stereotypes, sex 

characteristics, pregnancy or related 

conditions, sexual orientation, and 

gender identity; and 

• Clarify a recipient’s obligations to 

students and employees who are 

pregnant or experiencing pregnancyrelated conditions. 

Summary of the Major Provisions of 

This Regulatory Action 

With regard to sex-based harassment 

(as defined in proposed § 106.2), the 

proposed regulations would: 

• Define sex-based harassment to 

include but not be limited to sexual 

harassment; 

• Provide and clarify, as appropriate, 

definitions of various terms related to a 

recipient’s obligations to address sex 

discrimination, including sex-based 

harassment; 

• Clarify how a recipient is required 

to take action to end any sex 

discrimination that has occurred in its 

education program or activity, prevent 

its recurrence, and remedy its effects; 

and 

• Clarify a recipient’s obligations 

related to the grievance procedures and 

other necessary steps when it receives a 

complaint of sex discrimination. 

With regard to discrimination against 

individuals who are pregnant or 

parenting, the proposed regulations 

would: 

• Define the term ‘‘pregnancy or 

related conditions’’ and the term 

‘‘parental status,’’ and prohibit 

discrimination against students and 

applicants for admission or employment 

on the basis of current, potential, or past 

pregnancy or related conditions; and 

• Clarify a recipient’s obligations to 

students and employees who are 

pregnant or experiencing related 

conditions. 

In addition, the proposed regulations 

would: 

• Articulate the Department’s 

understanding that sex discrimination 

includes discrimination on the basis of 

sex stereotypes, sex characteristics, 

pregnancy or related conditions, sexual 

orientation, and gender identity; 

• Clarify and streamline 

administrative requirements with 

respect to designating a Title IX 

Coordinator, disseminating a 

nondiscrimination notice, adopting 

grievance procedures, and 

recordkeeping; 

• Specify that a recipient must train 

a range of relevant persons on the 

recipient’s obligations under Title IX; 

• Clarify that, unless otherwise 

provided by Title IX or the regulations, 

a recipient must not carry out any 

otherwise permissible different 

treatment or separation on the basis of 

sex in a way that would cause more 

than de minimis harm, including by 

adopting a policy or engaging in a 

practice that prevents a person from 

participating in an education program or 

activity consistent with their gender 

identity; and 

• Clarify a recipient’s obligation to 

address retaliation. 

Costs and Benefits 

As further detailed in the Regulatory 

Impact Analysis, the Department 

estimates that the total monetary cost 

savings to recipients of the proposed 

regulations over ten years would be in 

the range of $9.8 million to $28.2 

million. Although the Department 

cannot quantify, in monetary terms, the 

benefits of the proposed regulations to 

those who have been subjected to sex 

discrimination, the Department 

recognizes that sex discrimination, 

including sex-based harassment, can 

have profound and long-lasting 

economic costs for students, employees, 

and other members of a recipient’s 

surrounding community. See, e.g., 

Centers for Disease Control and 

Prevention, Fast Facts: Preventing 

Sexual Violence, https://www.cdc.gov/ 

violenceprevention/sexualviolence/ 

fastfact.html (last visited June 16, 2022) 

(describing the economic impact of 

sexual violence involving physical 

contact on male and female victims 

within their lifetimes); Cora Peterson et 

al., Lifetime Economic Burden of 

Intimate Partner Violence Among U.S. 

Adults, 55 a.m. J. Preventative Med. 433 

(2018) (estimating the economic impact 

of intimate partner violence on male 

and female victims within their 

lifetimes). The Department now believes 

that these proposed regulations more 

effectively fulfill Title IX’s guarantee 

that a recipient’s education program or 

activity is free from sex discrimination. 

As proposed, the Department’s 

preliminary view is that these 

amendments would lower the costs 

associated with sex discrimination, 

thereby producing a demonstrable 

benefit for students, employees, and 

others participating in a recipient’s 

education program or activity. In the 

Regulatory Impact Analysis, the 

Department estimates the likely 

monetary costs of this regulatory action 

for recipients. The clarification of 

grievance procedures required for all 

forms of sex discrimination and 

adoption of new reporting and 

notification framework for employees 

will carry some costs. The Department 

notes that although it cannot fully 

quantify the economic impact of the 

proposed regulations, the Department 

believes that these benefits are 

substantial and would significantly 

outweigh the estimated costs of the 

proposed regulations. 

The Department also acknowledges 

that the proposed regulations deviate 

from some past agency statements on 

Title IX’s coverage of discrimination 

based on sexual orientation and gender 

identity. As explained in the Regulatory 

Impact Analysis, the Department 

believes that any costs associated with 

the shift away from its most recent prior 

interpretation would be minimal. For 

example, the proposed requirement to 

permit students to participate in a 

recipient’s education program or 

activity consistent with their gender 

identity may require updating of 

policies or training materials, but would 

not require significant expenditures, 

such as construction of new facilities. 

The Department proposes that the 

benefits associated with this change— 

increased protection of students from 

sex discrimination and better alignment 

of the regulations with Title IX’s 

nondiscrimination mandate—far 

outweigh any costs. 

Invitation to Comment: The 

Department invites you to submit 

comments regarding the proposed 

regulations. 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. 

The Department invites 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 

the proposed regulations. Please let the 

Department know of any further ways 

that it may reduce potential costs or 

increase potential benefits, while 

preserving the effective and efficient 

administration of the Department’s 

programs and activities. The 

Department also welcomes comments 

on any alternative approaches to the 

subjects addressed by the proposed 

regulations. 

During and after the comment period, 

you may inspect public comments about 

the proposed regulations by accessing 

Regulations.gov. You may also inspect 

the comments in person. Please contact 

the person listed under FOR FURTHER

INFORMATION CONTACT to make 


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41392 Federal Register / Vol. 87, No. 132 / Tuesday, July 12, 2022 / Proposed Rules 

2The text of Title IX states that the statute applies 

to ‘‘any education program or activity receiving 

Federal financial assistance.’’ 20 U.S.C. 1681(a). 

The definition of the term ‘‘Federal financial 

assistance’’ under the Title IX regulations is not 

limited to monetary assistance, but encompasses 

various types of in-kind assistance, such as a grant 

or loan of real or personal property, or provision of 

the services of Federal personnel. See 34 CFR 

106.2(g)(2) and (3). Throughout this preamble, 

terms such as ‘‘Federal funding,’’ ‘‘Federal funds,’’ 

and ‘‘federally funded’’ are used to refer to ‘‘Federal 

financial assistance,’’ and are not meant to limit 

application of the statute or its implementing 

regulations to recipients of certain types of Federal 

financial assistance. 

arrangements to inspect the comments 

in person. 

Assistance to Individuals With 

Disabilities in Reviewing the 

Rulemaking Record: Upon request, the 

Department 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 the proposed 

regulations. To schedule an 

appointment for this type of 

accommodation or auxiliary aid, please 

contact the person listed under FOR

FURTHER INFORMATION CONTACT. 

Table of Contents 

Background 

• History of Title IX’s Nondiscrimination 

Mandate and Related Regulations 

• The Department’s Review of the Title IX 

Regulations 

• Significant Proposed Regulations 

I. Provisions of General Applicability 

II. Recipient’s Obligation to Operate Its 

Education Program or Activity Free from 

Sex Discrimination 

III. Pregnancy and Parental Status 

IV. Title IX’s Coverage of All Forms of Sex 

Discrimination 

V. Retaliation 

VI. Outdated Regulatory Provisions 

VII. Directed Questions 

• Regulatory Impact Analysis 

Background 

The mission of the Department’s 

Office for Civil Rights (OCR) is to ensure 

equal access to education and to 

promote educational excellence through 

vigorous enforcement of civil rights in 

our nation’s schools. One of the Federal 

civil rights laws that OCR enforces is 

Title IX, which prohibits discrimination 

on the basis of sex under education 

programs or activities that receive 

Federal financial assistance. 20 U.S.C. 

1681–1688. Unfortunately, sex 

discrimination—sometimes overlapping 

with other forms of discrimination, such 

as race discrimination and disability 

discrimination—remains a serious 

problem, keeping affected students from 

benefiting fully from their school’s 

education programs and activities. 

In March 2021, President Joseph R. 

Biden, Jr. issued the Executive Order on 

Guaranteeing an Educational 

Environment Free from Discrimination 

on the Basis of Sex, Including Sexual 

Orientation or Gender Identity, and 

directed the Secretary of Education, in 

consultation with the Attorney General, 

to review all existing regulations, 

orders, guidance documents, policies 

and any other similar agency actions for 

consistency with Title IX and other 

governing laws. The goal of the 

Executive Order was to ensure ‘‘that all 

students [are] guaranteed an educational 

environment free from discrimination 

on the basis of sex, including 

discrimination in the form of sexual 

harassment, which encompasses sexual 

violence, and including discrimination 

on the basis of sexual orientation or 

gender identity.’’ Executive Order on 

Guaranteeing an Educational 

Environment Free from Discrimination 

on the Basis of Sex, Including Sexual 

Orientation or Gender Identity, E.O. 

14021, 86 FR 13803 (Mar. 11, 2021), 

https://www.govinfo.gov/content/pkg/ 

FR-2021-03-11/pdf/2021-05200.pdf. 

Also, as set out in the Executive Order 

on Preventing and Combating 

Discrimination on the Basis of Gender 

Identity or Sexual Orientation, issued in 

January 2021, this Administration’s 

policy is ‘‘to prevent and combat 

discrimination on the basis of gender 

identity or sexual orientation, and to 

fully enforce Title VII [of the Civil 

Rights Act of 1964] and other laws that 

prohibit discrimination on the basis of 

gender identity or sexual orientation.’’ 

Executive Order on Preventing and 

Combating Discrimination on the Basis 

of Gender Identity or Sexual 

Orientation, E.O. 13988, 86 FR 7023 

(Jan. 25, 2021), https://

www.govinfo.gov/content/pkg/FR-2021- 

01-25/pdf/2021-01761.pdf. That 

Executive Order further noted that 

under the reasoning of Bostock v. 

Clayton County, 140 S. Ct. 1731 (2020), 

‘‘[l]aws that prohibit sex 

discrimination—including Title IX of 

the Education Amendments Act of 1972, 

as amended (20 U.S.C. 1681 et seq.) . . . 

along with their respective 

implementing regulations—prohibit 

discrimination on the basis of gender 

identity or sexual orientation, so long as 

the laws do not contain sufficient 

indications to the contrary.’’ Id. Like 

Executive Order 14021, Executive Order 

13988 directed the Secretary of 

Education, in consultation with the 

Attorney General, to ‘‘review all existing 

orders, regulations, guidance 

documents, policies, programs, or other 

agency actions’’ promulgated under any 

statute or regulation that prohibits sex 

discrimination for their consistency 

with the stated policy. Id. 

As these Executive Orders directed, 

the Department conducted an extensive 

review of its Title IX regulations and 

policy documents for consistency with 

Title IX’s statutory prohibition on sex 

discrimination in federally funded 

education programs or activities. This 

review included careful consideration of 

the comments and feedback received 

during a nationwide virtual public 

hearing on Title IX that OCR held in 

June 2021, OCR’s numerous listening 

sessions in 2021 with a wide array of 

individuals and organizations on 

various Title IX issues, and meetings 

with stakeholders held in 2022 under 

Executive Order 12866, after the NPRM 

was submitted to the Office of 

Management and Budget (OMB). Office 

of Management and Budget, Office of 

Information and Regulatory Affairs, 

Reginfo.gov, http://reginfo.gov/public 

(last visited June 2, 2022). Based on that 

review and input, the Department 

proposes that the current regulations 

should be amended to support full 

implementation of Title IX’s prohibition 

on sex discrimination under a 

recipient’s education program or 

activity. 

In its review, the Department heard 

two overarching concerns from 

students, parents, recipients, advocates, 

and other concerned stakeholders, 

namely that: (1) there is a need for 

greater clarity on how to ensure that 

complaints of sex-based harassment are 

resolved in a prompt and equitable 

manner; and (2) the current regulations 

do not adequately clarify or specify the 

scope of sex discrimination prohibited 

by Title IX, including discrimination 

based on sex stereotypes, sex 

characteristics, pregnancy or related 

conditions, sexual orientation, or gender 

identity. The Department has 

determined that more clarity and greater 

specificity would better equip recipients 

of Federal funding 2 to create and 

maintain school environments free from 

sex discrimination. This, in turn, will 

help recipients ensure that all persons 

have equal access to educational 

opportunities in accordance with Title 

IX’s nondiscrimination mandate. 

The goal of the Department’s 

proposed regulations is thus to fully 

effectuate Title IX by clarifying and 

specifying the scope and application of 

Title IX protections and recipients’ 

obligation not to discriminate on the 

basis of sex. Specifically, this proposed 

regulatory action focuses on ensuring 

that recipients prevent and address sex 

discrimination, including but not 

limited to sex-based harassment, in their 

education programs or activities; 


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3 45 CFR part 86 (1975). In 1980, Congress created 

the United States Department of Education. Public 

Law 96–88, sec. 201, 93 Stat. 669, 671 (1979); Exec. 

Order No. 12212, 45 FR 29557 (May 5, 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 

part 106. See 45 FR 30802, 30955–65 (May 9, 1980). 

clarifying the scope of Title IX’s 

protection for students and others who 

are participating or attempting to 

participate in a recipient’s education 

program or activity; defining important 

terms related to a recipient’s obligations 

under Title IX; ensuring the provision of 

supportive measures, as appropriate to 

restore or preserve a complainant’s or 

respondent’s access to the recipient’s 

education program or activity; clarifying 

a recipient’s responsibilities toward 

students who are pregnant or 

experiencing pregnancy-related 

conditions; and clarifying that Title IX’s 

prohibition on sex discrimination 

encompasses discrimination based on 

sex stereotypes, sex characteristics, 

pregnancy or related conditions, sexual 

orientation, and gender identity. In 

addressing confusion about coverage of 

sex-based harassment in the current 

regulations, the Department’s proposed 

regulations also set out requirements 

that enable recipients to meet their 

obligations in settings that vary in size, 

student populations, and administrative 

structure. The proposed regulatory 

action would strengthen the current 

framework, clarify the scope and 

application of Title IX, and fully align 

the Title IX regulations with the 

nondiscrimination mandate of Title IX. 

I. History of Title IX’s 

Nondiscrimination Mandate and 

Related Regulations 

Enacted in 1972, Title IX provides 

that ‘‘[n]o 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). 

Title IX is cast in broad terms. It 

imposes, as a condition on receipt of 

Federal funds for education programs or 

activities, a blanket prohibition on sexbased discrimination, with a small 

number of ‘‘specific, narrow exceptions 

to that broad prohibition.’’ Jackson v. 

Birmingham Bd. of Educ., 544 U.S. 167, 

175 (2005). Congress did not limit Title 

IX’s nondiscrimination condition to 

conduct engaged in ‘‘by’’ the recipient 

or its agents, but rather extended it to 

any ‘‘exclu[sion] from participation in,’’ 

‘‘deni[al of] the benefits of,’’ or 

‘‘subject[ion] to discrimination under,’’ 

any recipient’s education program or 

activity. Congress drafted Title IX ‘‘with 

an unmistakable focus on the benefited 

class,’’ and did not ‘‘writ[e] it simply as 

a ban on discriminatory conduct by 

recipients of federal funds or as a 

prohibition against the disbursement of 

public funds to educational institutions 

engaged in discriminatory practices.’’ 

Cannon v. Univ. of Chi., 441 U.S. 677, 

691–93 (1979). 

Eliminating sex discrimination rooted 

in stereotypical perceptions of women’s 

abilities, competence, and worthiness to 

participate in educational programs—as 

both student and employee—was also 

fundamental to Title IX. See generally 

118 Cong. Rec. 5803–12 (1972) 

(statement of Sen. Birch Bayh). 

According to Senator Birch Bayh, Title 

IX’s sponsor in the U.S. Senate, 

discrimination in postsecondary 

education was driven by the 

widespread, but false, perception that 

the duty or desire of women to get 

married and bear children made them 

disinterested in pursuing education or 

professional achievement. Id. at 5804. 

Because of this stereotype, many 

American schools did not wish to 

‘‘waste a ‘man’s place’ on a woman.’’ Id. 

Thus, Senator Bayh said sex 

discrimination in ‘‘admissions, 

scholarship programs, faculty, hiring 

and promotion, professional staffing, 

and pay scales,’’ was ‘‘one of the great 

failings of the American educational 

system.’’ Id. at 5803. 

Title IX authorizes and directs the 

Department, as well as other agencies 

‘‘to effectuate the provisions of section 

1681 of this title with respect to such 

program or activity by issuing rules, 

regulations, or orders of general 

applicability which shall be consistent 

with achievement of the objectives of 

the statute authorizing the financial 

assistance in connection with which the 

action is taken.’’ 20 U.S.C. 1682. 

In 1979, the Supreme Court explained 

in Cannon v. University of Chicago that 

the objectives of Title IX are two-fold: 

first, to ‘‘avoid the use of federal 

resources to support discriminatory 

practices’’ and second, to ‘‘provide 

individual citizens effective protection 

against those practices.’’ 441 U.S. at 704. 

In 1982, the Court clarified the broad 

scope of Title IX in North Haven Board 

of Education v. Bell, stating: ‘‘[I]f we are 

to give Title IX the scope that its origins 

dictate, we must accord it a sweep as 

broad as its language.’’ 456 U.S. 512, 

521 (1982) (citations and internal 

alterations omitted). Throughout this 

preamble, when the Department refers 

to Title IX’s nondiscrimination mandate 

or requirement, it means the directive of 

the statutory text, including Title IX’s 

purposes and prohibition on sex 

discrimination as set out in Cannon and 

North Haven Board of Education. 

* * * * * 

In 1975, the Department’s 

predecessor, the Department of Health, 

Education, and Welfare (HEW), first 

promulgated regulations under Title IX 3

after multiple Congressional hearings. 

121 Cong. Rec. 20467 (1975) (statement 

of Sen. Birch Bayh). They were also 

subject to a statutory ‘‘laying before’’ 

provision, designed to afford Congress 

an opportunity to examine the proposed 

regulations and disapprove them by 

resolution within 45 days if deemed 

inconsistent with Title IX. N. Haven Bd. 

of Educ., 456 U.S. at 531–32. The 

Supreme Court has held that the fact 

that no such resolution succeeded 

‘‘strongly implies’’ Congress’ agreement 

with the Title IX regulations. Grove City 

Coll. v. Bell, 465 U.S. 555, 568 (1984); 

N. Haven Bd. of Educ., 456 U.S. at 533– 

35. 

The regulations were promulgated to 

effectuate the purposes of Title IX, 

specifically to ‘‘eliminate (with certain 

exceptions) discrimination on the basis 

of sex in any education program or 

activity receiving Federal financial 

assistance.’’ 34 CFR 106.1. The 

regulations implemented Title IX’s 

nondiscrimination mandate through 

provisions that addressed sex 

discrimination in hiring, admissions, 

athletics, and other aspects of a 

recipient’s education program or 

activity. See generally 34 CFR part 106. 

Since 1975, the Department’s Title IX 

regulations have required a recipient to 

take actions important for the 

prevention and elimination of sex 

discrimination, including by 

designating an employee to coordinate 

the recipient’s efforts to comply with 

Title IX (34 CFR 106.8(a)), adopting a 

nondiscrimination policy (34 CFR 

106.8(b)), adopting and publishing 

grievance procedures providing for 

prompt and equitable resolution of sex 

discrimination complaints (34 CFR 

106.8(c)), and prohibiting 

discrimination against students and 

employees based on pregnancy and 

childbirth (34 CFR 106.40(b); 34 CFR 

106.57). At that time, Federal courts had 

not yet addressed a recipient’s Title IX 

obligations with respect to sex-based 

harassment (including sexual 

harassment), sex stereotyping, or 

discrimination based on sexual 

orientation and gender identity. 

Since then, the understanding of Title 

IX has evolved through judicial 


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interpretation, with relevant case law 

supporting the broad reach of its 

nondiscrimination mandate, and OCR 

guidance and subsequent regulations 

evolving accordingly. In 1992, the 

Supreme Court held that, in some 

circumstances, a school district could be 

liable for monetary damages under Title 

IX if a teacher sexually harasses a 

student. Franklin v. Gwinnett Cnty. Pub. 

Sch., 503 U.S. 60 (1992); see also Gebser 

v. Lago Vista Indep. Sch. Dist., 524 U.S. 

274 (1998). In Gebser, the Court 

specifically recognized the authority of 

Federal agencies, such as the 

Department, to ‘‘promulgate and enforce 

requirements that effectuate [Title IX’s 

nondiscrimination mandate],’’ even in 

circumstances that would not give rise 

to a claim for monetary damages. 524 

U.S. at 292. The Court later held that 

schools also may be liable for monetary 

damages under certain conditions if a 

student sexually harasses another 

student in the school’s program. Davis 

v. Monroe Cnty. Bd. of Educ., 526 U.S. 

629 (1999). OCR interpreted Title IX as 

prohibiting sexual harassment as early 

as 1981, see U.S. Dep’t of Educ., Office 

for Civil Rights, Sexual Harassment: It’s 

Not Academic, Office for Civil Rights at 

2 (1988) (1988 Sexual Harassment 

Pamphlet) (quoting OCR Policy 

Memorandum, Aug. 31, 1981, from 

Antonio J. Califa, Director for Litigation, 

Enforcement and Policy Service, OCR to 

Regional Civil Rights Directors), https:// 

files.eric.ed.gov/fulltext/ED330265.pdf, 

and issued a series of documents to 

provide guidance to recipients on how 

to meet their obligations as well as 

information about students’ Title IX 

rights. In 2018, the Department issued a 

Notice of Proposed Rulemaking (2018 

NPRM) to clarify and modify the Title 

IX regulations, 83 FR 61462 (Nov. 29, 

2018), and in 2020 the Department 

amended the Title IX regulations (the 

2020 amendments) specifying how 

recipients must respond to allegations of 

sexual harassment in their education 

programs or activities. 85 FR 30026 

(May 19, 2020). 

Title IX has also long been understood 

to prohibit discrimination related to 

pregnancy, consistent with its 

legislative history and the broad sweep 

of its sex-discrimination prohibition. 

Conley v. Nw. Fla. State Coll., 145 F. 

Supp. 3d 1073, 1077–78 (N.D. Fla. 

2015); see also Wort v. Vierling, Case 

No. 82–3169, slip op. (C.D. Ill. Sept. 4, 

1984), aff’d on other grounds, 778 F.2d 

1233 (7th Cir. 1985); Muro v. Bd. of 

Supervisors of La. State Univ. & Agric. 

& Mech. Coll., No. CV 19–10812, 2019 

WL 5810308, at *3 (E.D. La. Nov. 7, 

2019) (‘‘Courts have held that 

discrimination on the basis of 

pregnancy, childbirth, or related 

medical conditions is a form of sex 

discrimination prohibited by Title IX.’’); 

Varlesi v. Wayne State Univ., 909 F. 

Supp. 2d 827, 854 (E.D. Mich. 2012) 

(‘‘[P]regnancy discrimination . . . is 

unquestionably covered as a subset of 

sex discrimination under Title IX 

. . . .’’). 

Title IX regulations regarding 

pregnancy, which were part of the 1975 

HEW regulations, prohibit recipients 

from discriminating against students or 

employees based on ‘‘pregnancy, 

childbirth, false pregnancy, termination 

of pregnancy, or recovery therefrom,’’ 34 

CFR 106.40(b)(1), 106.57(b), and 

prohibit sex-based distinctions on the 

basis of ‘‘parental, family, or marital 

status,’’ 34 CFR 106.40(a), 106.57(a). In 

guidance documents from 1991 and 

2013, OCR emphasized that 

discrimination against pregnant 

students is a form of sex discrimination 

that may have significant adverse 

consequences for educational 

attainment and long-term economic 

stability, but the Department’s 

regulations regarding pregnancy have 

remained unchanged since 1975. The 

Department proposes updated 

regulations to ensure full 

implementation of Title IX with respect 

to pregnancy and related conditions. 

Although the proposed regulations are 

based exclusively on Title IX, the 

Department notes that later-enacted 

statutes provide additional context and 

considerations related to discrimination 

based on pregnancy and or related 

conditions. In 1978, for example, 

Congress enacted the Pregnancy 

Discrimination Act (PDA), which 

amended the prohibition on sex 

discrimination in Title VII of the Civil 

Rights Act of 1964 (Title VII) to prohibit 

employers from discriminating against 

employees ‘‘on the basis of pregnancy, 

childbirth, or related medical 

conditions.’’ 42 U.S.C. 2000e. The PDA 

requires that ‘‘women affected by 

pregnancy, childbirth, or related 

medical conditions shall be treated the 

same for all employment-related 

purposes . . . as other persons not so 

affected but similar in their ability or 

inability to work.’’ Id. In 2015, the Equal 

Employment Opportunity Commission 

(EEOC) issued enforcement guidance on 

pregnancy discrimination and related 

issues clarifying that Title VII, as 

amended by the PDA, prohibits 

discrimination based on current 

pregnancy, past pregnancy, potential or 

intended pregnancy, and medical 

conditions related to pregnancy or 

childbirth, including lactation. U.S. 

Equal Emp. Opportunity Comm’n, 

Enforcement Guidance on Pregnancy 

Discrimination and Related Issues (June 

25, 2015) (2015 EEOC Pregnancy 

Guidance), https://www.eeoc.gov/laws/ 

guidance/enforcement-guidancepregnancy-discrimination-and-relatedissues. Breastfeeding employees also 

have protections under the Affordable 

Care Act (ACA), which amended the 

Fair Labor Standards Act to require 

employers to provide reasonable break 

times and a private place, other than a 

bathroom, for covered employees who 

are breastfeeding to express milk for one 

year after the child’s birth, 29 U.S.C. 

207(r)(1). In addition, Section 188 of the 

Workforce Innovation and Opportunity 

Act (WIOA), enforced by the 

Department of Labor (DOL), prohibits 

WIOA Title I-financially assisted 

programs, activities, training, and 

services from discriminating based on 

pregnancy, childbirth, or related 

medical conditions, including lactation 

and pregnancy-related disorders, as a 

form of sex discrimination. U.S. Dep’t of 

Labor, Implementation of the 

Nondiscrimination and Equal 

Opportunity Provisions of the 

Workforce Innovation and Opportunity 

Act, 29 CFR 38.7(a), 38.8 (2017). 

Because both Title VII and Title IX 

prohibit sex discrimination, the 

Supreme Court and lower Federal courts 

often rely on interpretations of Title VII 

to inform interpretations of Title IX, and 

both laws apply to employees in the 

educational context. See, e.g., Franklin, 

503 U.S. at 75; Jennings v. Univ. of N.C., 

482 F.3d 686, 695 (4th Cir. 2007); 

Frazier v. Fairhaven Sch. Comm., 276 

F.3d 52, 65–66 (1st Cir. 2002); Gossett 

v. Oklahoma ex rel. Bd. of Regents for 

Langston Univ., 245 F.3d 1172, 1176 

(10th Cir. 2001). Consequently, the 

treatment of pregnancy-related 

discrimination under the PDA, the ACA, 

and other statutes enacted since 1975 

informs, though does not dictate, the 

Department’s understanding of 

discrimination on the basis of sex under 

Title IX. 

The Department’s Title IX regulations 

have never directly addressed the 

application of Title IX to discrimination 

based on sexual orientation or gender 

identity. OCR first issued guidance on 

the rights of gay and lesbian students in 

its 1997 Sexual Harassment Guidance, 

recognizing that harassment of a sexual 

nature directed at gay or lesbian 

students may constitute sexual 

harassment prohibited by Title IX. U.S. 

Dep’t of Educ., Office for Civil Rights, 

Sexual Harassment Guidance: 

Harassment of Students by School 

Employees, Other Students, or Third 


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4The Department generally uses the term 

‘‘LGBTQI+’’ to refer to students who are lesbian, 

gay, bisexual, transgender, queer, questioning, 

asexual, intersex, nonbinary, or describe their sex 

characteristics, sexual orientation, or gender 

identity in another similar way. When referring to 

some outside resources or past OCR guidance 

documents, this preamble also uses variations of 

this acronym to track the content of those 

documents, as appropriate. 

Parties, 62 FR 12034, 12039 (Mar. 13, 

1997) (1997 Sexual Harassment 

Guidance) (revised in 2001), https://

www.govinfo.gov/content/pkg/FR-1997- 

03-13/pdf/97-6373.pdf. OCR reinforced 

Title IX’s coverage of this form of 

harassment in 2001. U.S. Dep’t of Educ., 

Office for Civil Rights, Revised Sexual 

Harassment Guidance: Harassment of 

Students by School Employees, Other 

Students, or Third Parties at 3, noticed 

at 66 FR 5512 (Jan. 19, 2001) (rescinded 

upon effective date of 2020 

amendments, Aug. 14, 2020) (2001 

Revised Sexual Harassment Guidance), 

www.ed.gov/ocr/docs/shguide.pdf. 

Since then, OCR has recognized that 

Title IX prohibits discrimination based 

on gender identity. See, e.g., U.S. Dep’t 

of Educ., Office for Civil Rights, 

Questions and Answers on Title IX and 

Sexual Violence at 5 (Apr. 29, 2014) 

(rescinded in 2017) (2014 Q&A on 

Sexual Violence), www.ed.gov/ocr/docs/ 

qa-201404-title-ix.pdf; U.S. Dep’t of 

Justice and U.S. Dep’t of Educ., Office 

for Civil Rights, Dear Colleague Letter 

on Title IX and Transgender Students 

(May 13, 2016) (rescinded in 2017) 

(2016 Dear Colleague Letter on Title IX 

and Transgender Students), https://

www2.ed.gov/about/offices/list/ocr/ 

letters/colleague-201605-title-ixtransgender.pdf. Most recently, in 2021, 

OCR published a Notice of 

Interpretation in the Federal Register to 

state explicitly that Title IX’s 

prohibition on sex discrimination 

encompasses discrimination on the 

basis of sexual orientation and gender 

identity, consistent with the Supreme 

Court’s reasoning in Bostock. 140 S. Ct. 

1731; U.S. Dep’t of Educ., Office for 

Civil Rights, Notice of Interpretation— 

Enforcement of Title IX with Respect to 

Discrimination Based on Sexual 

Orientation and Gender Identity in Light 

of Bostock v. Clayton County, 86 FR 

32637 (June 22, 2021) (2021 Bostock 

Notice of Interpretation), https://

www.govinfo.gov/content/pkg/FR-2021- 

06-22/pdf/2021-13058.pdf. 

Against this backdrop and for reasons 

described in this preamble, the 

Secretary proposes to amend the Title 

IX regulations at 34 CFR 106.1, 106.2, 

106.6, 106.8, 106.11, 106.21, 106.30, 

106.31, 106.40, 106.41, 106.44, 106.45, 

106.46, 106.51, 106.57, 106.60, 106.71, 

and 106.81, as well as add new 106.10 

and 106.47 and redesignate current 

106.16 as 106.18 in subpart B and 

current 106.46 to 106.48 within subpart 

D. The Secretary also proposes to delete 

34 CFR 106.3(c) and (d), 106.16, 106.17, 

106.30, and 106.41(d) in their entirety, 

and delete portions of 34 CFR 106.15 

and 106.21 to the extent they refer to 34 

CFR 106.16 and 106.17. 

II. The Department’s Review of the Title 

IX Regulations 

On April 6, 2021, OCR issued a letter 

to students, educators, and other 

stakeholders that provided information 

about the steps the Department was 

taking to review its regulations, orders, 

guidance, policies, and other similar 

agency actions under Title IX. U.S. 

Dep’t of Educ., Office for Civil Rights, 

Letter from Acting Assistant Secretary 

Suzanne B. Goldberg to Students, 

Educators, and other Stakeholders re 

Exec. Order 14021 (Apr. 6, 2021), http:// 

www.ed.gov/ocr/correspondence/ 

stakeholders/20210406-titleix-eo14021.pdf. This comprehensive review, 

as directed by Executive Order 14021, 

includes OCR’s review of all agency 

actions, including the 2020 

amendments, to determine whether 

changes to the Department’s Title IX 

regulations are necessary to fulfill Title 

IX and OCR’s commitment to ensuring 

equal and nondiscriminatory access to 

education for students at all educational 

levels. Id. at 2. OCR explained that its 

review would be guided by ‘‘our 

responsibility to ensure that schools are 

providing students with a 

nondiscriminatory educational 

environment, including appropriate 

supports for students who have 

experienced sexual harassment, 

including sexual violence, and other 

forms of sex discrimination.’’ Id. OCR 

also explained that ‘‘[t]his responsibility 

includes ensuring that schools have 

grievance procedures that provide for 

the fair, prompt, and equitable 

resolution of reports of sexual 

harassment and other sex 

discrimination, cognizant of the 

sensitive issues that are often involved.’’ 

Id. 

On May 20, 2021, OCR published a 

notice in the Federal Register 

announcing a nationwide virtual public 

hearing to gather information for the 

purpose of improving enforcement of 

Title IX. U.S. Dep’t of Educ., Office for 

Civil Rights, Announcement of Public 

Hearing; Title IX of the Education 

Amendments of 1972, 86 FR 27429 

(May 20, 2021), https://

www.govinfo.gov/content/pkg/FR-2021- 

05-20/pdf/2021-10629.pdf. OCR 

expressed a particular interest in 

comments on the Title IX regulations 

related to sexual harassment, including 

the 2020 amendments, and comments 

on discrimination based on sexual 

orientation and gender identity in 

educational environments. Id. OCR 

requested live comments through the 

virtual hearing platform and written 

comments via email. The virtual hearing 

was held from June 7, 2021, to June 11, 

2021. Over 280 students, parents, 

teachers, faculty members, school staff, 

administrators, and other members of 

the public provided live comments 

during the virtual public hearing. The 

transcript from the June 2021 Title IX 

Public Hearing is available at https://

www2.ed.gov/about/offices/list/ocr/ 

docs/202106-titleix-publichearingcomplete.pdf. OCR received over 30,000 

written comments via email. The 

written comments may be viewed at 

https://www2.ed.gov/about/offices/list/ 

ocr/public-hearing.html. 

In addition to soliciting live and 

written comments as part of the June 

2021 Title IX Public Hearing, OCR also 

conducted listening sessions with 

stakeholders expressing a variety of 

views on the 2020 amendments and 

other aspects of Title IX, including 

advocates for survivors of sexual 

violence, students accused of sexual 

misconduct, and LGBTQI+ 4 students; 

organizations focused on Title IX and 

athletics; organizations focused on free 

speech and due process; organizations 

representing elementary schools, 

secondary schools, and postsecondary 

institutions, teachers, administrators, 

and parents; attorneys representing 

survivors, accused students, and 

schools; State attorneys general offices; 

Title IX Coordinators and other school 

administrators; individuals who provide 

training on Title IX to schools; 

individuals who work in campus law 

enforcement; and individuals who have 

participated in school-level Title IX 

proceedings. 

Responses to OCR’s request for 

comments for the June 2021 Title IX 

Public Hearing and listening sessions 

with stakeholders revealed to OCR areas 

of concern and confusion following the 

implementation of the 2020 

amendments. OCR heard from 

stakeholders that aspects of the new 

requirements were not well-suited to 

some or all educational environments or 

to effectively advancing Title IX’s 

nondiscrimination mandate. More 

specifically, at the June 2021 Title IX 

Public Hearing and in listening sessions, 

elementary school and secondary school 

recipients expressed concern that 

certain requirements impeded their 

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day school environment. At the 

postsecondary level, recipients 

expressed concern regarding the new 

requirement to provide a live hearing 

with advisor-conducted crossexamination (current § 106.45(b)(6)), 

both because of the increased 

administrative burden and because of 

the requirement’s effect on students’ 

willingness to bring forward complaints 

and participate in the grievance process. 

Other stakeholders also expressed that 

this requirement is unnecessarily 

adversarial, retraumatizing, chilling to 

students’ willingness to report 

incidents, and not more effective than 

other means of determining whether a 

violation of the school’s prohibition on 

sexual harassment occurred. Still other 

stakeholders urged the Department to 

preserve the live hearing and adversarial 

cross-examination requirements. These 

stakeholders stated that the hearing and 

cross-examination requirements ensured 

fundamental fairness in a high-stakes 

process in a way that is consistent with 

the tenets of the American justice 

system. 

Some postsecondary recipients 

expressed concern that the requirements 

in the 2020 amendments intruded on 

their professional judgment and 

expertise about how best to respond to 

allegations of student misconduct in 

their educational environment. A 

variety of stakeholders, including some 

recipients, also expressed concerns 

about the limitations on a recipient’s 

obligation to respond to notice of sexual 

harassment and the narrowing of the 

definition of ‘‘sexual harassment’’ from 

the Department’s previous position 

(current §§ 106.30, 106.44). They 

suggested the limitations in the 2020 

amendments allowed recipients to 

ignore conduct that could or would 

limit or deny access to their learning 

environment based on sex. Similarly, 

stakeholders expressed concerns that 

recipients refused to respond to 

complaints of a hostile environment 

based on sex in a program or activity 

because the initial sexually harassing 

conduct occurred off-campus or outside 

the United States (current § 106.44). 

OCR also heard from stakeholders who 

were concerned that the deliberate 

indifference standard was an 

inappropriately narrow standard of 

responsibility for the administrative 

enforcement context in light of Title IX’s 

nondiscrimination mandate. 

Stakeholders also requested that the 

Department clarify Title IX’s application 

to issues not currently addressed, or not 

viewed by the stakeholders as addressed 

adequately, by the current regulations. 

In particular, stakeholders requested 

that the Department specify protections 

related to discrimination based on 

sexual orientation and gender identity. 

These requests noted the historical and 

ongoing discrimination experienced by 

LGBTQI+ students, the recent 

enactment of State laws restricting 

transgender students from participating 

in school consistent with their gender 

identity, and the void created by OCR’s 

withdrawal of its 2016 Dear Colleague 

Letter on Title IX and Transgender 

Students. Other stakeholders urged that 

transgender students must not be 

permitted to participate in school 

consistent with their gender identity, 

either in all or certain circumstances. 

Stakeholders also requested that the 

Department clarify that discrimination 

based on sex characteristics is a form of 

sex discrimination and, in particular, 

that Title IX protects intersex students 

from discrimination. OCR also heard 

from stakeholders requesting 

clarification on Title IX’s protections 

against pregnancy discrimination and 

its prohibition on rules that treat parents 

differently based on sex. The 

Department heard more from 

stakeholders in 2022 in meetings held 

under Executive Order 12866, after the 

NPRM was submitted to OMB. 

Having considered the comments and 

other information received in 

connection with the June 2021 Title IX 

Public Hearing, 2021 listening sessions, 

and the 2022 meetings held under 

Executive Order 12866, the 

Department’s proposed regulations aim 

to strengthen the current framework, 

improve clarity for recipients to 

facilitate their compliance, and better 

align the Title IX regulations with the 

nondiscrimination mandate of Title IX, 

particularly its goal of ‘‘provid[ing] 

individual citizens effective protection 

against [discriminatory] practices.’’ 

Cannon, 441 U.S. at 704. The 

Department’s goals are to clarify the 

scope of Title IX’s protection from sex 

discrimination for students participating 

or attempting to participate in an 

education program or activity; to state in 

greater detail and with greater clarity 

than in the current regulations a 

recipient’s responsibilities toward 

pregnant students; to ensure the 

provision of supportive measures, as 

available and appropriate, to those who 

experience any form of sex 

discrimination, including but not 

limited to sex-based harassment; and to 

ensure that recipients understand their 

obligation to address sex discrimination 

in their education programs or 

activities. The overarching goal is to 

ensure that no person experiences sex 

discrimination in education. To that 

end, the Department aims to ensure that 

all recipients can implement Title IX’s 

nondiscrimination mandate fully and 

fairly in their educational environments, 

including with procedures for 

responding to complaints of sex 

discrimination that are prompt and 

equitable for all participants. 

In reviewing the 2020 amendments, 

the Department also considered its 

regulations implementing other laws 

with requirements that parallel or 

overlap with a recipient’s obligations 

under Title IX. For example, the 

Department considered the 

requirements for postsecondary 

institutions under the 2013 

reauthorization of the Violence Against 

Women Act (VAWA 2013), Public Law 

113–4, 304, 127 Stat. 54, 89–92, which 

amended the Jeanne Clery Disclosure of 

Campus Security Policy and Campus 

Crime Statistics Act (Clery Act), 20 

U.S.C. 1092(f) (2018). The Clery Act 

requires institutions of higher education 

participating in Federal financial aid 

programs under the Higher Education 

Act of 1965, 20 U.S.C. 1001 et seq. 

(1965), to comply with certain campus 

safety- and security-related 

requirements. The 2013 VAWA 

amended the Clery Act to require higher 

education institutions to compile 

statistics for incidents of dating 

violence, domestic violence, sexual 

assault, and stalking and disclose that 

information in their annual security 

reports. 20 U.S.C. 1092(f)(1)(F)(iii). The 

Clery Act also requires disclosure of 

certain policies, procedures, and 

programs, including programs to 

prevent domestic violence, dating 

violence, sexual assault, and stalking 

and programs to promote the awareness 

of rape, acquaintance rape, domestic 

violence, dating violence, sexual 

assault, and stalking among students 

and employees. 20 U.S.C. 1092(f)(8)(A), 

(B). The Department issued regulations 

in 2014 to implement those changes to 

the statute. Final Rule, Violence Against 

Women Act: Institutional security 

policies and crime statistics, 79 FR 

62752 (Oct. 20, 2014). https://

www.govinfo.gov/content/pkg/FR-2014- 

10-20/pdf/2014-24284.pdf. The 

Violence Against Women Act 

Reauthorization Act of 2022 did not 

amend the Clery Act, but it did update 

the definitions of ‘‘dating violence,’’ 

‘‘domestic violence,’’ and ‘‘stalking’’ in 

VAWA, which are incorporated into the 

Clery Act and the current and proposed 

Title IX regulations. Public Law 117– 

103, Division W, Consolidated 

Appropriations Act, 2022. The 

Department proposes updates to the 

2020 amendments as necessary to 

account for these changes. 


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The Department acknowledges that 

recipients and other stakeholders may 

have made changes to their policies or 

procedures to align with the 2020 

amendments. For example, schools have 

been required to revise existing policies 

and procedures, or adopt new policies 

and procedures, for the 2020–2021 

school year and the current 2021–2022 

school year in reliance on the 2020 

amendments. Recipients’ changes may 

include—among others—policies and 

procedures based on the 2020 

amendments’ adoption of a new 

definition of ‘‘sexual harassment’’ and 

‘‘notice’’ as well as the deliberate 

indifference standard, mandatory 

dismissals, the requirement for 

postsecondary recipients to hold live 

hearings with cross-examination, and 

the training of Title IX Coordinators, 

investigators, decisionmakers, and other 

staff regarding the new requirements. 

However, stakeholder feedback from the 

June 2021 Public Hearing, the 2021 

listening sessions, and the 2022 

meetings held under Executive Order 

12866 indicated that many recipients 

did not agree with the 2020 definition 

of ‘‘sexual harassment’’ and had found 

that some of the procedural 

requirements issued in 2020 made 

compliance more difficult for them. 

Recipients expressed concern that the 

mandatory dismissal requirements and 

live hearing and cross-examination 

requirements were having a chilling 

effect on students who might otherwise 

report sex-based harassment. The 

Department therefore has good reason to 

believe that many recipients would 

appreciate the flexibility the proposed 

regulations would afford them to better 

fulfill their obligation not to 

discriminate based on sex in their 

education programs or activities. For 

example, the proposed regulations 

would enable recipients to tailor 

procedures to be effective at addressing 

sex discrimination in their educational 

environment by providing an option to 

conduct live hearings with crossexamination or have the parties meet 

separately with the decisionmaker and 

answer questions submitted by the other 

party when a credibility assessment is 

necessary; an option to provide the 

parties an opportunity to review all 

relevant evidence instead of being 

obligated to produce a written 

investigative report; an option to offer 

informal resolution when appropriate 

without having to wait for a complaint 

to be filed; and an option to dismiss 

complaints when appropriate rather 

than an obligation to dismiss in specific 

circumstances. In addition, some 

stakeholders indicated that because the 

current regulations do not cover many 

forms of conduct that may cause a 

hostile environment based on sex in 

their program or activity, they created or 

repurposed alternative disciplinary 

policies to address such conduct. Such 

stakeholders would have discretion 

under the proposed regulations to keep 

in place policies and procedures they 

adopted in reliance on the 2020 

amendments or to change course so long 

as they meet their obligations. 

In addition, while the Department 

recognizes that there may be reliance 

interests related to the current 

regulations, the Department’s tentative 

view is that the value of better aligning 

the regulations with the objectives of 

Title IX, as reflected in proposed 

revisions to the regulations, 

substantially outweighs those interests. 

The proposed changes would strengthen 

implementation of Title IX and reduce 

the occurrence of sex discrimination 

within federally funded education 

programs or activities. Sex 

discrimination remains a serious 

problem that can derail students from 

participating and thriving in school. The 

Department’s proposed changes would 

clarify Title IX’s coverage of all forms of 

sex discrimination, strengthen existing 

protections, and better position schools 

to meet their obligation not to 

discriminate based on sex. The 

proposed changes would better ensure 

that schools take prompt and effective 

action to end sex discrimination, 

including sex-based harassment, with 

support for affected students and fair 

procedures for all. In short, the 

proposed regulations would reflect the 

statute’s text and case law establishing 

that Title IX protects students from all 

forms of sex discrimination, including 

discrimination based on sex stereotypes, 

sex characteristics, pregnancy or related 

conditions, sexual orientation, and 

gender identity. Moreover, as discussed 

in the Regulatory Impact Analysis, 

compliance with the proposed 

regulations would result in cost savings 

to recipients. 

The Department has considered the 

interests that stakeholders may have in 

avoiding further changes to recipient 

policies and procedures or additional 

costs that may be required to comply 

with the proposed regulations. At the 

same time, the Department has also 

considered stakeholders’ interests in 

having Title IX regulations that are 

sufficiently clear to allow for effective 

implementation and that provide 

recipients with flexibility and discretion 

to meet their Title IX obligations and to 

maintain any policies and procedures 

that do not conflict with Title IX or the 

proposed regulations. Based on the 

information OCR received during the 

June 2021 Title IX Public Hearing and 

additional listening sessions, as well as 

the 2022 meetings held under Executive 

Order 12866, the Department believes 

that substantial interests support each 

change reflected in the proposed 

regulations, that these changes are 

designed to ensure full implementation 

of Title IX’s nondiscrimination 

mandate, and that the benefits of the 

proposed changes in facilitating that 

implementation far outweigh the 

potential interests in maintaining the 

existing regulations. In each instance in 

which the Department is proposing to 

change an existing regulatory 

requirement, the preamble 

acknowledges that change when 

discussing the regulation and explains 

the Department’s reasons for proposing 

the change. The most significant 

proposed revisions to the Title IX 

regulations are summarized below. 

Significant Proposed Regulations 

The Department is proposing 

significant revisions to several 

subcategories of the Title IX regulations. 

The Department discusses these 

significant revisions by topic rather than 

in numerical order. Generally, the 

Department does not address proposed 

regulatory changes that are technical or 

otherwise minor in effect. 

First, the Department discusses its 

proposed changes to existing definitions 

and its proposed new definitions of 

terms of general applicability in the 

regulations (proposed § 106.2), and its 

proposed provisions regarding the effect 

of other requirements and preservation 

of rights (proposed § 106.6). The 

Department then clarifies that Title IX 

obligates a recipient to respond to sex 

discrimination within the recipient’s 

education program or activity in the 

United States, even if it occurs offcampus, including but not limited to 

conduct that occurs in a building owned 

or controlled by a student organization 

that is officially recognized by a 

postsecondary institution and conduct 

that is subject to the recipient’s 

disciplinary authority. It also requires a 

recipient to respond to a hostile 

environment based on sex within its 

education program or activity in the 

United States, even if sex-based conduct 

contributing to the hostile environment 

occurred outside the recipient’s 

education program or activity or outside 

the United States (proposed § 106.11). 

Second, the Department discusses a 

recipient’s obligation to operate its 

education program or activity free from 

sex discrimination, and administrative 

requirements such as the 

responsibilities of a recipient to 


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designate a Title IX Coordinator, 

disseminate a policy of 

nondiscrimination on the basis of sex, 

adopt prompt and equitable grievance 

procedures, and keep records to 

document its Title IX compliance 

(proposed § 106.8). The Department also 

discusses its proposed notification 

requirement, which would instruct 

recipients to require certain employees 

to notify the Title IX Coordinator when 

they have information about conduct 

that may constitute sex discrimination 

under Title IX, and would require other 

employees who have information about 

conduct that may constitute sex 

discrimination under Title IX to either 

(1) notify the Title IX Coordinator or (2) 

provide any person who gives them 

information about such conduct with 

the contact information for the Title IX 

Coordinator and information about how 

to report sex discrimination (proposed 

§ 106.44(c)). The Department also 

addresses a recipient’s obligation to 

offer supportive measures, as 

appropriate, to a complainant and 

respondent upon being notified of 

conduct that may constitute sex 

discrimination under Title IX, to the 

extent necessary to restore or preserve 

that party’s access to the recipient’s 

education program or activity (proposed 

§ 106.44(g)). 

The Department also discusses its 

proposed definition of ‘‘sex-based 

harassment’’ (proposed § 106.2) and 

explains in more detail its proposed 

changes to the regulations regarding 

grievance procedures for complaints of 

sex discrimination (proposed § 106.45), 

including its proposals to include the 

basic requirements for grievance 

procedures such as treating the 

complainant and respondent equitably 

(proposed § 106.45(b)(1)); the 

requirement to objectively evaluate all 

relevant evidence that is not otherwise 

impermissible (proposed § 106.45(b)(6) 

and (7)); the standard of proof for all 

complaints of sex discrimination 

(proposed § 106.45(h)(1)); and the 

requirement that grievance procedures 

be followed before the imposition of any 

disciplinary sanctions (proposed 

§ 106.45(h)(4)). The Department also 

explains proposed bases for 

discretionary dismissal of a complaint 

(proposed § 106.45(d)) and the proposed 

requirement that the recipient have a 

process for the decisionmaker to 

adequately assess the credibility of the 

parties and witnesses to the extent that 

credibility is in dispute and relevant to 

evaluating one or more of the allegations 

of sex discrimination (proposed 

§ 106.45(g)). The Department also 

describes the additional proposed 

requirements for postsecondary 

institutions in cases of sex-based 

harassment involving a student 

complainant or student respondent 

(proposed § 106.46), including the role 

of an advisor (proposed § 106.46(e)(2)) 

and revised hearing procedures 

(proposed § 106.46(g)). The Department 

states that a recipient will not be 

deemed to have violated the Title IX 

regulations solely because the Assistant 

Secretary would have reached a 

different determination than the 

recipient reached based on an 

independent weighing of the evidence 

in sex-based harassment complaints 

(proposed § 106.47). 

Third, the Department describes its 

proposed revisions to the Title IX 

regulations related to pregnancy or 

related conditions as well as sex 

discrimination related to marital, 

parental, and family status, to provide 

clarity to recipients about their 

obligation not to discriminate against 

students or employees who are pregnant 

or experiencing pregnancy-related 

conditions. These proposed revisions 

aim to ensure that students and 

employees who are pregnant or 

experiencing pregnancy-related 

conditions are not subject to 

discrimination based on sex in 

education programs or activities and 

include revisions to the definitions of 

‘‘pregnancy or related conditions’’ and 

‘‘parental status’’ (proposed § 106.2) as 

well as revisions to the regulations on 

admissions (proposed § 106.21(c)); 

parental, family, or marital status of 

students (proposed § 106.40(a)); 

pregnancy or related conditions of 

students (proposed § 106.40(b)); 

employment (proposed § 106.51(b)(6)); 

parental, family, or marital status of 

employees (proposed § 106.57(a)); 

pregnancy or related conditions of 

employees (proposed § 106.57(b) and 

(e)); and pre-employment inquiries 

(proposed § 106.60). 

Fourth, the Department proposes to 

clarify Title IX’s scope of application, 

including nondiscrimination on the 

basis of sex stereotypes, sex 

characteristics, pregnancy or related 

conditions, sexual orientation, and 

gender identity (proposed § 106.10). The 

Department also proposes clarifying 

Title IX’s general prohibition on sex 

discrimination in education programs or 

activities receiving Federal financial 

assistance (proposed § 106.31(a)). The 

preamble explains that unless otherwise 

provided by Title IX or the regulations, 

in contexts in which a recipient may 

provide sex-separate programs or rules, 

such different treatment must not be 

applied to individuals in a way that 

would cause more than de minimis 

harm, which includes adopting a policy 

or engaging in a practice that prevents 

a person from participating in an 

education program or activity consistent 

with their gender identity (proposed 

§ 106.31(a)(2)). 

Fifth, the Department discusses 

proposed revisions to the prohibition on 

retaliation (proposed § 106.71) that 

would build on the current regulations 

and further clarify what types of 

conduct would constitute prohibited 

retaliation, including peer retaliation. 

Finally, the Department explains its 

proposal to delete outdated regulatory 

provisions (§ 106.2(s) Definition of 

Transition Plan; § 106.3(c) and (d) Selfevaluation; § 106.15(b) Admissions; 

§§ 106.16–106.17 Transition Plans; 

§ 106.21(a) Admission; and § 106.41(d) 

Adjustment period). 

It is the Department’s intent that the 

severability clauses set out in §§ 106.9, 

106.18 (proposed to be redesignated at 

§ 106.16), 106.24, 106.46 (proposed to 

be redesignated as § 106.48), 106.62, and 

106.72 of the 2020 amendments remain 

applicable to the proposed changes set 

out below. As discussed in the 2020 

amendments, it is the Department’s 

position that each of the proposed 

regulations discussed in this preamble 

would serve an important, related, but 

distinct purpose. 85 FR 30538. Each 

provision provides a distinct value to 

recipients, elementary schools, 

secondary schools, postsecondary 

institutions, students, employees, the 

public, taxpayers, the Federal 

government, and other recipients of 

Federal financial assistance separate 

from, and in addition to, the value 

provided by the other provisions. To 

best serve these purposes, the continued 

application of the severability clauses in 

the 2020 amendments clarifies that the 

proposed regulations operate 

independently of each other and that 

the potential invalidity of one provision 

should not affect the other provisions. 

In addition, the Department intends that 

any final regulations following these 

proposed regulations be enforced 

prospectively and not retroactively. 

I. Provisions of General Applicability 

Statute: Title IX states that ‘‘[n]o 

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 specify 

how recipients can meet their Title IX 

obligations. The Department has the 

authority to ‘‘effectuate the provisions’’ 

of the Title IX prohibition on 

discrimination on the basis of sex in 


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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. Title IX also provides that the 

Department may secure compliance by 

‘‘the termination of or refusal to grant or 

to continue assistance,’’ or ‘‘by any 

other means authorized by law.’’ 20 

U.S.C. 1682. The Department may take 

such action only after providing a 

recipient with notice of the failure to 

comply with the statute and the 

Department’s regulatory requirements 

under Title IX and after determining 

that ‘‘compliance cannot be secured by 

voluntary means.’’ Id. 

A. Purpose 

Section 106.1 Purpose and Effective 

Date 

Current regulations: Section 106.1 has 

the heading of ‘‘Purpose and effective 

date.’’ Current § 106.1 states that the 

purpose of the regulations is ‘‘to 

effectuate title IX of the Education 

Amendments of 1972, as amended by 

Pub. L. 93–568, 88 Stat. 1855 (except 

sections 904 and 906 of those 

Amendments) which is designed to 

eliminate (with certain exceptions) 

discrimination on the basis of sex in any 

education program or activity receiving 

Federal financial assistance, whether or 

not such program or activity is offered 

or sponsored by an educational 

institution as defined in this part.’’ 

Current § 106.1 further states that the 

regulations are ‘‘intended to effectuate 

section 844 of the Education 

Amendments of 1974, Pub. L. 93–380, 

88 Stat. 484.’’ Finally, current § 106.1 

provides that the effective date of the 

regulations is July 21, 1975. 

Proposed regulations: The 

Department proposes consolidating the 

reference to Title IX in the first sentence 

by removing ‘‘of the Education 

Amendments of 1972, as amended by 

Pub. L. 93–568, 88 Stat. 1855 (except 

sections 904 and 906 of those 

Amendments).’’ The Department also 

proposes removing the sentence that 

identifies the effective date of the 

regulations. 

Reasons: Current § 106.2 defines 

‘‘Title IX’’ and proposed § 106.2 would 

retain this definition of Title IX with 

minor revisions for completeness, 

accuracy, and readability. Because 

proposed § 106.2 would define ‘‘Title 

IX,’’ the Department proposes removing 

the legislative history of Title IX from 

§ 106.1. In addition, it is the 

Department’s view that it is unnecessary 

to retain a reference to the original 

effective date of the Title IX regulations 

in light of the passage of time since the 

enactment of Title IX and the several 

amendments that have followed. 

Because proposed § 106.1 would no 

longer include the effective date, the 

Department also proposes revising the 

section heading to ‘‘Purpose.’’ 

B. Definitions 

The Department proposes including 

all definitions in § 106.2, the original 

regulatory section containing definitions 

for all of the Department’s Title IX 

implementing regulations. As part of the 

2020 amendments, the Department 

added a separate definitions section, 

§ 106.30, that included definitions 

related to a recipient’s obligation to 

address sexual harassment. Because the 

definitions in that section pertain to a 

recipient’s general obligations to take 

action to end sex discrimination, the 

Department proposes moving these 

definitions to § 106.2. 

The Department also proposes to 

reorganize the definitions at § 106.2. 

The existing definitions section does not 

present the definitions alphabetically, 

which may create confusion for 

recipients and others. Proposed § 106.2 

would reorder the definitions to present 

them in alphabetical order. The 

Department also proposes technical 

edits to accommodate the consolidation 

of the definitions into § 106.2 and 

associated numbering changes. 

Because the Department proposes 

consolidating all definitions into 

§ 106.2, the proposed regulatory text 

would include existing definitions in 

current § 106.2, as well as definitions 

that are new to that section. The 

Department limits its discussion in this 

preamble to the definitions that the 

Department proposes adding and the 

definitions for which the Department is 

proposing changes that are not 

exclusively technical in nature. 

Immediately below, the Department 

discusses proposed revisions to 

definitions and new definitions that 

apply throughout the Title IX 

regulations. In later topical sections of 

this preamble, the Department discusses 

proposed definitions relevant to those 

topics. 

Section 106.2 Definition of 

‘‘Administrative Law Judge’’ 

Current regulations: Section 106.2(f) 

defines ‘‘administrative law judge’’ as ‘‘a 

person appointed by the reviewing 

authority to preside over a hearing held 

under this part.’’ 

Proposed regulations: The 

Department proposes changing the 

reference to a hearing held ‘‘under this 

part’’ to refer to a hearing held ‘‘under 

§ 106.81.’’ 

Reasons: The proposed definition 

would replace the general reference to 

‘‘a hearing held under this part’’ with a 

specific reference to a hearing held 

under § 106.81. This clarification is 

necessary to distinguish a hearing 

conducted as part of a postsecondary 

institution’s sex-based harassment 

grievance procedures in proposed 

§ 106.46 from a hearing conducted by an 

administrative law judge to secure a 

recipient’s compliance with Title IX. 

Current and proposed § 106.81 adopt 

and incorporate into the Title IX 

regulations the procedural provisions 

applicable to Title VI of the Civil Rights 

Act of 1964, specifically 34 CFR 100.6– 

100.11 and part 101. Proposed §§ 106.2 

(definition of ‘‘retaliation’’) and 106.46 

discuss hearings conducted as part of a 

recipient’s sex-based harassment 

grievance procedures. 

Section 106.2 Definition of 

‘‘Applicant’’ 

Current regulations: Section 106.2(j) 

defines ‘‘applicant’’ as ‘‘one who 

submits an application, request, or plan 

required to be approved by a 

Department official, or by a recipient, as 

a condition to becoming a recipient.’’ 

Proposed regulations: The 

Department proposes adding language 

to clarify that this definition refers to 

the use of the term ‘‘applicant’’ in the 

definition of ‘‘educational institution’’ 

in § 106.2 and to the use of the term 

‘‘applicant’’ in § 106.4. 

Reasons: The proposed regulations 

would clarify that the definition of 

‘‘applicant’’ in proposed § 106.2, which 

refers to one who seeks to become a 

recipient, applies only to the use of the 

term ‘‘applicant’’ in the definition of 

‘‘educational institution’’ in current 

§ 106.2 and to the use of the term 

‘‘applicant’’ in § 106.4. In other 

provisions in the current and proposed 

regulations, applicant refers to one who 

is applying for admission as a student 

or other participant in a recipient’s 

education program or activity (e.g., 

§ 106.21) or applying for employment 

(e.g., § 106.51). Because the definition of 

‘‘applicant’’ in current § 106.2 does not 

apply throughout the regulations, the 

Department proposes revising the 

definition to identify the specific 

provisions to which this definition 

applies. 

Section 106.2 Definitions of 

‘‘Elementary School’’ and ‘‘Secondary 

School’’ 

Current regulations: Section 106.30(b) 

defines an ‘‘elementary and secondary 

school’’ for purposes of §§ 106.44 and 

106.45 as a ‘‘local educational agency 

(LEA), as defined in the Elementary and 


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Secondary Education Act of 1965, as 

amended by the Every Student Succeeds 

Act (ESEA); a preschool; or a private 

elementary or secondary school.’’ 

Proposed regulations: The 

Department proposes removing the 

definition of ‘‘elementary and secondary 

school’’ and, in its place providing 

separate definitions of ‘‘elementary 

school’’ and ‘‘secondary school’’ in 

§ 106.2. Proposed § 106.2 would define 

an ‘‘elementary school’’ as that term is 

defined by section 8101 of the ESEA (20 

U.S.C. 7801(19)), and a ‘‘public or 

private preschool.’’ Proposed § 106.2 

would define a ‘‘secondary school’’ as 

that term is defined by section 8101 of 

the ESEA (20 U.S.C. 7801(45)), and an 

‘‘institution of vocational education’’ as 

defined in § 106.2 that serves secondary 

school students. 

Reasons: The proposed definitions of 

both ‘‘elementary school’’ and 

‘‘secondary school’’ would remove the 

references to current §§ 106.44 and 

106.45 that are in the current definition 

of ‘‘elementary and secondary school,’’ 

because those sections are limited to 

sexual harassment, whereas the 

proposed definitions would apply to all 

provisions within part 106. The 

proposed definitions also would remove 

explicit references to private schools 

because these schools are already 

included in the ESEA definitions of 

‘‘elementary school’’ and ‘‘secondary 

school,’’ making these references 

unnecessary. 

The proposed revisions would 

separately define ‘‘elementary school’’ 

and ‘‘secondary school’’ because there is 

a provision in the proposed regulations 

that distinguishes between elementary 

schools and secondary schools. For 

consistency with the Title IX statute at 

20 U.S.C. 1681(c), which states that 

Title IX applies to public and private 

preschools, the proposed definition of 

‘‘elementary school’’ also would cover a 

public or private preschool. The ESEA 

does not separately define ‘‘preschool’’ 

and the Department has not previously 

done so in its Title IX regulations. The 

Department’s position remains that a 

separate definition of ‘‘preschool’’ is not 

necessary and that public and private 

preschools fall within the proposed 

definition of ‘‘elementary school.’’ 

The proposed definition of 

‘‘secondary school’’ would also cover an 

institution of vocational education that 

serves secondary school students. This 

addition is necessary to ensure coverage 

of secondary school students who 

attend vocational institutions and to 

align with the definition of 

‘‘postsecondary institution’’ in both the 

current and proposed regulations, 

which includes institutions of 

vocational education that serve 

postsecondary school students. As 

defined in current § 106.2(o) and 

proposed § 106.2, an ‘‘institution of 

vocational education’’ could serve both 

secondary and postsecondary school 

students but secondary school students 

attending institutions of vocational 

education are unaccounted for in the 

current definition of ‘‘elementary and 

secondary school.’’ 

Section 106.2 Definition of 

‘‘Postsecondary Institution’’ 

Current regulations: Section 106.30(b) 

defines ‘‘postsecondary institution’’ for 

purposes of §§ 106.44 and 106.45 as an 

institution of graduate higher education 

as defined in § 106.2(l), an ‘‘institution 

of undergraduate higher education’’ as 

defined in § 106.2(m), an ‘‘institution of 

professional education’’ as defined in 

§ 106.2(n), or an ‘‘institution of 

vocational education’’ as defined in 

§ 106.2(o). 

Proposed regulations: The 

Department proposes moving the 

definition of ‘‘postsecondary 

institution’’ from § 106.30(b) to § 106.2 

with minor revisions. Proposed § 106.2 

would define a ‘‘postsecondary 

institution’’ as an ‘‘institution of 

graduate higher education’’ as defined 

in § 106.2, an ‘‘institution of 

undergraduate higher education’’ as 

defined in § 106.2, an ‘‘institution of 

professional education’’ as defined in 

§ 106.2, or an ‘‘institution of vocational 

education’’ as defined in § 106.2 that 

serves postsecondary school students. 

Reasons: The proposed definition 

would remove specific references to 

§§ 106.44 and 106.45 in the current 

definition of ‘‘postsecondary 

institution’’ because those sections are 

limited to sexual harassment, whereas 

the proposed definition of 

‘‘postsecondary institution’’ in § 106.2 

would apply to all of part 106. The 

proposed revisions also would clarify 

that the definition of ‘‘postsecondary 

institution’’ applies to an ‘‘institution of 

vocational education’’ as defined in 

§ 106.2 that serves postsecondary 

students. It is the Department’s current 

view that this clarification is necessary 

because an ‘‘institution of vocational 

education,’’ as defined in § 106.2, could 

serve secondary school students or 

postsecondary institution students. 

Section 106.2 Definition of ‘‘Student 

With a Disability’’ 

Current regulations: None. 

Proposed regulations: The 

Department proposes adding a 

definition of ‘‘student with a disability’’ 

to mean a student who is an individual 

with a disability who would be covered 

by Section 504 of the Rehabilitation Act 

of 1973, 29 U.S.C. 705(9)(B), (20)(B), or 

a child with a disability as defined in 

the Individuals with Disabilities 

Education Act, 20 U.S.C. 1401(3). 

Reasons: It is the Department’s view 

that it is important to clarify how a 

recipient’s Title IX obligations intersect 

with its obligation to ensure the rights 

of students with disabilities. The 

proposed regulations include provisions 

in §§ 106.8(e) and 106.44(g)(7) that 

would require a recipient to consider 

the requirements of Federal disability 

laws when implementing the Title IX 

regulations. A definition of a ‘‘student 

with a disability’’ is necessary for 

recipients to understand the scope of 

these two sets of obligations and how 

they intersect, and thus would 

strengthen overall enforcement of Title 

IX. 

Section 106.2 Definition of ‘‘Title IX’’ 

Current regulations: Section 106.2(a) 

defines ‘‘Title IX’’ as ‘‘title IX of the 

Education Amendments of 1972, Pub. L. 

92–318, as amended by section 3 of Pub. 

L. 93–568, 88 Stat. 1855, except sections 

904 and 906 thereof; 20 U.S.C. 1681, 

1682, 1683, 1685, 1686.’’ 

Proposed regulations: The 

Department proposes updating this 

definition to incorporate statutory 

additions of sections 1687 and 1688 and 

to simplify its language. 

Reasons: The current definition omits 

two sections of Title IX that were added 

in 1988 and relies on unnecessarily 

legalistic language. The proposed 

definition would be a more complete 

and accurate description of Title IX and 

it is presented in more accessible 

language. 

C. Application 

Section 106.11 Application 

Current regulations: Section 106.11 

states that, except as provided in this 

subpart, the Department’s Title IX 

regulations apply to every recipient and 

its education program or activity that 

receives Federal financial assistance. 

The Civil Rights Restoration Act of 1987 

amended Title IX to add a definition of 

‘‘program or activity.’’ 20 U.S.C. 1687. 

In 2000, the Department amended the 

Title IX regulations to incorporate the 

statutory definition of ‘‘program or 

activity’’ at 34 CFR 106.2(h), which 

provides that a recipient’s education 

program or activity encompasses all of 

its operations. 65 FR 68050 (Nov. 13, 

2000). Current § 106.44(a) defines an 

‘‘education program or activity’’ for 

purposes of §§ 106.30, 106.44, and 

106.45 to include locations, events, or 

circumstances over which the recipient 


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exercised substantial control over both 

the respondent and the context in which 

the sexual harassment occurs, and also 

includes any building owned or 

controlled by a student organization that 

is officially recognized by a 

postsecondary institution. Current 

§§ 106.8(d) and 106.44(a) limit the 

geographic scope of a recipient’s 

obligation to address sexual harassment 

to incidents that occurred against a 

person while that person was in the 

United States. In addition, current 

§ 106.45(b)(3)(i) requires a recipient to 

dismiss a formal complaint of sexual 

harassment if the alleged conduct did 

not occur against a person while that 

person was in the United States. 

Proposed regulations: The 

Department proposes amending 

§ 106.11, to clarify that Title IX’s 

prohibition on sex discrimination 

applies to all sex discrimination 

occurring both under a recipient’s 

education program or activity and in the 

United States. The proposed regulations 

would make clear that conduct that 

occurs under a recipient’s education 

program or activity includes but is not 

limited to conduct that occurs in a 

building owned or controlled by a 

student organization that is officially 

recognized by a postsecondary 

institution, which is consistent with 

current § 106.44(a), and conduct that is 

subject to the recipient’s disciplinary 

authority. It would also specify that a 

recipient has an obligation to address a 

sex-based hostile environment under its 

education program or activity, even if 

sex-based harassment contributing to 

that hostile environment occurred 

outside the recipient’s education 

program or activity or outside the 

United States. Finally, the Department 

proposes eliminating the language in 

current § 106.44(a) that defines 

‘‘education program or activity’’ for 

purposes of sexual harassment to ensure 

that the term is applied uniformly 

throughout the regulations for all forms 

of sex discrimination, including sexbased harassment. 

Reasons: Title IX states that ‘‘[n]o 

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). This statutory 

prohibition limits Title IX’s application 

in two ways: the sex discrimination 

must occur (1) under the recipient’s 

program or activity, and (2) against a 

person in the United States. 

The current regulations require a 

recipient to dismiss a formal complaint 

of sexual harassment and not use its 

Title IX grievance process if the conduct 

did not occur against a person in the 

United States, even if that conduct 

contributes to a hostile environment in 

the recipient’s education program or 

activity in the United States. 

After receiving input from 

stakeholders, the Department has 

reconsidered its prior interpretation of 

Title IX’s statutory language from the 

2020 amendments and proposes 

revising the current regulations to more 

clearly and completely describe the 

circumstances in which Title IX applies. 

In proposed § 106.11, consistent with 20 

U.S.C. 1687, the Department would 

clarify that an education program or 

activity includes all of the recipient’s 

operations and that conduct occurring 

under a recipient’s education program 

or activity would include but is not 

limited to conduct that occurs in a 

building owned or controlled by a 

student organization that is officially 

recognized by a postsecondary 

institution and conduct that is ‘‘under 

the school’s disciplinary authority.’’ See 

Davis, 526 U.S. at 646–47 (concluding 

‘‘that recipients of federal funding may 

be liable for ‘subject[ing]’ their students 

to discrimination . . . [for] acts of 

student-on-student sexual harassment 

[when] the harasser is under the 

school’s disciplinary authority’’). 

Proposed § 106.11 would also recognize 

that even when an act of sex-based 

harassment occurs outside the 

recipient’s education program or 

activity, or outside the United States, 

that conduct could contribute to a 

hostile environment based on sex under 

the recipient’s education program or 

activity, or otherwise exclude a person 

from participation in, deny them the 

benefits of, or subject them to sex 

discrimination under the recipient’s 

education program or activity in the 

United States. If such sex discrimination 

occurs, the recipient must address it. 

Obligation to address conduct 

occurring within the school’s 

operations. Under the proposed 

regulations, consistent with the current 

regulations, a recipient’s education 

program or activity would include 

buildings or locations that are part of 

the school’s operations, including 

online learning platforms. 34 CFR 

106.44(a). A recipient’s education 

program or activity would also include 

all of its academic and other classes, 

extracurricular activities, athletics 

programs, and other aspects of the 

recipient’s education program or 

activity, whether those programs or 

activities take place in the facilities of 

the recipient, via computer and internet 

networks, on digital platforms, with 

computer hardware or software owned, 

operated by, or used in the operations 

of the recipient, on a school bus, at a 

class or training program sponsored by 

the recipient at another location, or 

elsewhere. 

The Department’s discussion in the 

preamble to the 2020 amendments 

regarding Title IX and online platforms 

used by a recipient would thus remain 

relevant under the proposed regulations. 

Specifically, in the preamble to the 2020 

amendments the Department explained 

that the operations of a recipient ‘‘may 

certainly include computer and internet 

networks, digital platforms, and 

computer hardware or software owned 

or operated by, or used in the operations 

of, the recipient.’’ 85 FR 30202. The 

Department further explained that ‘‘the 

factual circumstances of online 

harassment must be analyzed to 

determine if it occurred in an education 

program or activity.’’ Id. The 

Department would maintain the same 

position in the proposed regulations as 

stated in the preamble to the current 

regulations: The definition of ‘‘program 

or activity’’ in the Title IX regulations 

does not create a distinction between 

sex discrimination occurring in person 

and that occurring online. Id. at 30203. 

Under the proposed regulations, 

consistent with the current regulations, 

conduct occurring under a recipient’s 

education program or activity would 

extend to conduct in off-campus settings 

that are operated or overseen by the 

school (e.g., a school field trip) and offcampus buildings owned or controlled 

by a student organization officially 

recognized by a postsecondary 

institution. Id.; 85 FR 30196–98; see, 

e.g., Farmer v. Kan. State Univ., 16–cv– 

2256–JAR–GEB, 2017 WL 980460, at 

*7–10 (D. Kan. Mar. 14, 2017) (finding 

plaintiff sufficiently alleged that Kansas 

State University exercised substantial 

control over off-campus assault at a 

fraternity because the fraternity was 

subject to oversight by University and 

University had the authority to 

discipline fraternity), aff’d on other 

grounds, 918 F.3d 1094 (10th Cir. 2019); 

Weckhorst v. Kan. State Univ., 241 F. 

Supp. 3d 1154, 1166–70 (D. Kan. 2017), 

aff’d sub nom. Farmer v. Kan. State 

Univ., 918 F.3d 1094 (10th Cir. 2019) 

(holding plaintiff sufficiently alleged 

that Kansas State University exercised 

substantial control over off-campus 

assault that occurred during a fraternity 

event at a local park because the 

University subjected the fraternity to 

oversight and had the authority to 

discipline fraternity); S.C. v. Metro. 

Gov’t of Nashville, No. 17–1098, 2022 

WL 127978, *25 (M.D. Tenn. Jan. 12, 

2022), appeal pending (noting that the 

Court’s ‘‘formulation of potential 


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liability for peer harassment notably 

shied away from drawing a hard line 

based on geography, focusing instead on 

whether the harassment was taking 

place ‘under’ an ‘operation’ of the 

funding recipient’’ (citing Davis, 526 

U.S. at 646)). 

Obligation to address conduct that 

occurs under the school’s disciplinary 

authority. Conduct occurring under a 

recipient’s education program or 

activity would also include other 

settings in the United States but off 

campus or off school grounds when the 

conduct ‘‘is under the school’s 

disciplinary authority.’’ Davis, 526 U.S. 

at 647; cf. Mahanoy Area Sch. Dist. v. 

B.L., 141 S. Ct. 2038, 2045 (2021) 

(noting a school’s ‘‘regulatory interests 

remain significant in some off-campus 

circumstances’’ and ‘‘several types of 

off-campus behavior . . . may call for 

school regulation,’’ including ‘‘serious 

or severe bullying or harassment 

targeting particular individuals [and] 

threats aimed at teachers or other 

students’’). Thus, the proposed 

regulations would adopt the 

Department’s recognition in the 

preamble to the 2020 amendments that 

a teacher’s sexual harassment of a 

student is ‘‘likely’’ to constitute sexual 

harassment ‘‘in the program’’ of the 

school even if the harassment occurs off 

campus or off school grounds and 

outside a school-sponsored activity. 85 

FR 30200. 

In addition, some schools have codes 

of conduct that address interactions, 

separate from discrimination, between 

students that occur off campus. If a 

school has such a code of conduct, then 

it may not disclaim responsibility for 

addressing sex discrimination that 

occurs in a similar context. If the school 

responds when, for instance, one 

student steals from another at an offcampus location, or when a student 

engages in a nonsexual assault of 

another student at an off-campus 

location, it must likewise respond when 

a student engages in sexual assault or 

sex-based harassment of another student 

off campus. Thus, the proposed rule 

would make clear, as in the 2020 

amendments, that whether conduct falls 

under a recipient’s education program 

or activity for purposes of Title IX is not 

contingent on the geographic location of 

the underlying conduct, but rather on 

whether the recipient exercises 

disciplinary authority over the 

respondent’s conduct in that context. 

See, e.g., DeGroote v. Ariz. Bd. of 

Regents, No. CV–18–00310–PHX–SRB, 

2020 WL 10357074, at *8 (D. Ariz. Feb. 

7, 2020) (finding a school exercised 

control over harasser and context of 

harassment, in part, because the 

school’s code of conduct addressed offcampus behavior and because the 

location of the initial harassment ‘‘is not 

dispositive’’). 

Obligation to address hostile 

environment created by conduct outside 

of the education program or activity. 

Proposed § 106.11 would also clarify 

that Title IX obligates a recipient to 

address a hostile environment occurring 

within the recipient’s education 

program or activity, even if the 

underlying sex-based harassment 

contributing to the hostile environment 

does not occur in the recipient’s 

education program or activity or occurs 

outside the United States. 

During OCR’s numerous listening 

sessions and in the June 2021 Title IX 

Public Hearing, many stakeholders 

indicated that the current regulations 

could be interpreted to exclude conduct 

that occurs off campus or off school 

grounds outside of a recipient’s 

education program or activity, or that 

occurs in a program or activity but 

outside the United States, even when 

that conduct creates a hostile 

environment based on sex in an 

education program or activity within the 

United States. They further asserted that 

Title IX requires a recipient to address 

a hostile environment based on sex in 

the recipient’s education program or 

activity, regardless of whether the sexbased harassment contributing to that 

hostile environment occurred 

elsewhere. The Department takes 

seriously these comments and agrees 

that clarification is needed. After 

considering this issue and reweighing 

the facts and circumstances, including 

this feedback, the Department proposes 

regulatory language to enforce the full 

scope of Title IX’s nondiscrimination 

mandate and ensure that recipients 

provide a nondiscriminatory 

environment for all students within 

their programs and activities in the 

United States. Proposed § 106.11 would 

clarify that Title IX’s prohibition on sex 

discrimination would apply to a hostile 

environment under a recipient’s 

education program or activity, even if 

sex-based harassment contributing to 

such a hostile environment occurred 

outside of the recipient’s education 

program or activity or occurred within 

an education program or activity but 

outside of the United States. 

In the preamble to the 2020 

amendments, the Department explained 

that in the context of a private lawsuit 

for monetary damages, the Supreme 

Court applied Title IX’s program or 

activity language to ‘‘ ‘limit a recipient’s 

damages liability to circumstances 

wherein the recipient exercises 

substantial control over both the 

harasser and the context in which the 

known harassment occurs.’ ’’ 85 FR 

30196 (quoting Davis, 526 U.S. at 645). 

The Department acknowledged that the 

Court’s decision was in the context of a 

lawsuit for monetary damages and not 

in the administrative enforcement 

context, but stated that because the 

Department, like the Court, is 

constrained by the text of the statute, 

including the definition of ‘‘program or 

activity,’’ a similar analysis is 

appropriate in the administrative 

enforcement context. Id. at 30196 n.863. 

The Department recognizes that some 

Federal courts in private suits for 

monetary damages have held a school 

not liable under Title IX for harassment 

that occurred outside of the recipient’s 

control. See, e.g., Roe v. St. Louis Univ., 

746 F.3d 874, 883–84 (8th Cir. 2014) 

(holding that there was insufficient 

evidence alleged to demonstrate that 

university was deliberately indifferent 

to plaintiff’s allegations of rape by a 

fellow student in a private residence 

over which the University exercised no 

control); Samuelson v. Or. State Univ., 

162 F. Supp. 3d 1123, 1132–34 (D. Or. 

2016) (finding that plaintiff did not 

allege facts to demonstrate university 

had any control over a rape by a nonstudent at a private apartment for 

purposes of ‘‘pre-assault liability’’ and 

dismissing as time-barred plaintiff’s 

allegations of deliberate indifference 

following her report of the rape to the 

university). In those cases, however, 

there were no actionable allegations that 

the schools were deliberately indifferent 

to a hostile environment based on sex 

within the recipient’s education 

program or activity. 

Indeed, several Federal courts have 

held that, even for purposes of monetary 

damages under Davis, Title IX requires 

recipients to evaluate and address 

allegations of a hostile environment 

within a recipient’s education program 

or activity, even when an initial 

incident of sex-based harassment may 

have occurred outside of the recipient’s 

education program or activity. See, e.g., 

Rost v. Steamboat Springs RE–2 Sch. 

Dist., 511 F.3d 1114, 1121 n.1 (10th Cir. 

2008) (citing Davis, 526 U.S. at 645) 

(recognizing that sexual assault 

occurring in settings outside of the 

school can create Title IX liability, as 

long as there is ‘‘some nexus between 

the out-of-school conduct and the 

school,’’ but finding that in this case, 

the district’s response to such conduct 

was not deliberately indifferent); 

Spencer v. Univ. of N.M. Bd. of Regents, 

15–cv–141–MCA–SCY, 2016 WL 

10592223, at *6 (D.N.M. Jan. 11, 2016) 

(concluding that a reasonable jury could 


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find the recipient deliberately 

indifferent for its failure to address the 

risk created by the possibility of future 

encounters between the plaintiff and the 

men who raped her off campus); L.E. v. 

Lakeland Joint Sch. Dist. #272, 403 F. 

Supp. 3d 888, 900–01 (D. Idaho 2019) 

(finding that the district was responsible 

for responding to a hostile environment 

in its education program or activity even 

where the initial sexual assault occurred 

outside the school’s education program 

or activity). 

The Department’s current view is that 

these decisions are correct in reading 

Davis to require a recipient to address 

a hostile environment based on sex that 

exists within its education program or 

activity, whether or not the initial sexbased harassment or other contributing 

acts of sex-based harassment may have 

occurred elsewhere. This is because 

when the hostile environment exists 

within a recipient’s education program 

or activity, the recipient exercises 

substantial control over both the 

harasser and the context. See Davis, 526 

U.S. at 645. A recipient cannot, 

therefore, sever incidents that happened 

outside of its education program or 

activity from any subsequent 

harassment or resulting hostile 

environment within the recipient’s 

control. L.E., 403 F. Supp. 3d at 900. To 

do so would allow ‘‘a person’’ to be 

‘‘subjected to discrimination under an[ ] 

education program or activity receiving 

Federal financial assistance’’ in 

violation of Title IX’s explicit text. 20 

U.S.C. 1681(a). 

For example, Student A reports that 

Student B sexually assaulted her while 

participating in the recipient’s study 

abroad program and both students have 

now returned to campus in the United 

States. Student A reports that Student B 

has been taunting her with sexually 

suggestive comments about the prior 

assault since their return to campus. 

Because of the sexual assault and 

Student B’s continuing conduct, 

Student A is unable to concentrate or 

participate fully in her classes and 

activities where Student B is present. In 

this scenario, because Student A has 

alleged a hostile environment based on 

sex within the recipient’s education 

program or activity within the United 

States, the recipient would have an 

obligation to take action to address 

those allegations. The proposed 

regulations would require the recipient 

to provide Student A with appropriate 

supportive measures and, if the 

recipient’s investigation finds that a 

hostile environment exists within its 

education program or activity, take 

action against Student B after following 

all applicable grievance procedures. 

Evaluating whether a hostile 

environment exists as a result of 

conduct that is otherwise not covered by 

Title IX is a fact-specific inquiry. 

Consistent with Federal case law, when 

sex-based harassment occurs outside of 

the United States or outside of a 

recipient’s education program or 

activity, it will not always result in a 

hostile environment that is within a 

recipient’s control. The definition of 

‘‘sex-based harassment’’ in proposed 

§ 106.2 would set out the minimum 

factors that must be considered in 

determining whether a hostile 

environment has been created in a 

recipient’s education program or 

activity. These factors would also apply 

when determining whether sex-based 

harassment that occurred outside of a 

recipient’s education program or 

activity has created a sex-based hostile 

environment in a recipient’s education 

program or activity. A recipient should 

also consider in its fact-specific inquiry 

whether a complainant’s encounters 

with an alleged respondent in the 

recipient’s education program or 

activity give rise to a hostile 

environment, even when the incidents 

of harassment occurred outside of the 

recipient’s education program or 

activity. See Williams v. Bd. of Regents 

of Univ. Sys. of Ga., 477 F.3d 1282, 

1296–98 (11th Cir. 2007) (reasoning that 

Title IX claim could arise when a 

student withdrew from university rather 

than risk encountering her alleged 

perpetrators on campus when school 

waited months before taking action in 

response to her complaint); Kinsman v. 

Fla. State Univ. Bd. of Trustees, No. 

4:15cv235–MW/CAS, 2015 WL 

11110848, at *4 (N.D. Fla. Aug. 12, 

2015) (holding that the effect of sexbased harassment does not end with the 

cessation of the harassing conduct, 

particularly when the complainant and 

respondent both remain at the 

institution and agreeing ‘‘that the 

possibility of further encounters 

‘between a rape victim and her attacker 

could create an environment sufficiently 

hostile to deprive the victim of access to 

educational opportunities provided by a 

university.’ ’’ (citation omitted)); 

Spencer, 2016 WL 10592223, at *6 

(‘‘ ‘[A] reasonable jury [may] conclude 

that further encounters, of any sort, 

between a rape victim and her attacker 

could create an environment sufficiently 

hostile to deprive the victim of access to 

educational opportunities provided by a 

university.’ ’’ (quoting Kelly v. Yale 

Univ., No. 3:01–CV–1591, 2003 WL 

1563424, at *3 (D. Conn. Mar. 26, 

2003))); Doe v. Derby Bd. of Educ., 451 

F. Supp. 2d 438, 444 (D. Conn. 2006) 

(holding that the ‘‘constant potential for 

interactions’’ between a harasser and 

rape victim due to the harasser’s 

presence on campus could constitute 

sex-based harassment); Crandell v. N.Y. 

Coll. of Osteopathic Med., 87 F. Supp. 

2d 304, 316 (S.D.N.Y. 2000) (harassment 

by former professor at off-campus 

internship required Title IX response by 

school when ‘‘the presence of the 

perpetrator at the institution would be 

expected to create a hostile 

environment’’). In evaluating whether 

there is a hostile environment, courts 

have reiterated that recipients must 

adopt a ‘‘ ‘totality of the circumstances’ 

approach that rejects the disaggregation 

of the allegations and requires only that 

the alleged incidents cumulatively have 

resulted in the creation of a hostile 

environment.’’ Crandell, 87 F. Supp. 2d 

at 319. 

In the circumstances in which sexbased harassment occurs outside a 

recipient’s education program or 

activity or outside the United States, 

and the harassment does not contribute 

to a hostile environment within the 

recipient’s education program or 

activity, proposed § 106.11 would 

clarify that Title IX does not apply. For 

example, Student C reports she was 

sexually assaulted in a nightclub off 

campus by a third party who does not 

live in the area. Student C is now 

experiencing emotional distress and is 

unable to attend classes. Because the 

assault occurred off campus, and the 

respondent is not a representative of the 

recipient or otherwise a person over 

whom the recipient exercises 

disciplinary authority, the assault did 

not occur within the recipient’s 

education program or activity. And 

because Student C is not alleging a 

hostile environment within the 

education program or activity due to the 

respondent’s presence or additional 

harassment she is experiencing, 

proposed § 106.11 clarifies that a 

recipient’s Title IX obligations would 

not be implicated. The recipient would 

still be encouraged to provide 

supportive measures to Student C and 

refer Student C to local law 

enforcement. 

Finally, the proposed regulations 

would also recognize that when sex 

discrimination other than sex-based 

harassment occurs outside of a 

recipient’s education program or 

activity, or outside of the United States, 

but causes sex discrimination within the 

recipient’s education program or 

activity, Title IX would require the 

recipient to address this sex 

discrimination as well. For example, a 

student in a recipient’s study abroad 

program complains that he was 


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subjected to different treatment in 

grading based on sex by a professor and, 

as a result, the student lost his 

scholarship. Under proposed § 106.11, 

the recipient would be required to 

address the complaint because, although 

the different treatment in grading 

occurred outside of the United States, 

that conduct caused discrimination 

based on sex in the recipient’s 

education program in the United States. 

This response would include 

compliance with applicable grievance 

procedures, including investigating the 

complaint, and, if discrimination is 

found, taking steps to remedy the 

resulting discrimination. For instance, 

the recipient may remove the 

discriminatory grade from the student’s 

transcript and reinstate the scholarship. 

In addition, there may be circumstances 

in which the recipient itself is alleged 

to have engaged in sex discrimination in 

its program outside the United States. 

When such conduct causes sex 

discrimination in its education program 

or activity within the United States, the 

recipient must address it. 

D. The Effect of Other Requirements and 

Preservation of Rights 

Section 106.6(e) Effect of Section 444 

of General Education Provisions Act 

(GEPA)/Family Educational Rights and 

Privacy Act (FERPA) 

Current regulations: Current § 106.6(e) 

states that the obligation to comply with 

the regulations in part 106 is not 

obviated or alleviated by the FERPA 

statute, 20 U.S.C. 1232g, or FERPA 

regulations, 34 CFR part 99. 

Proposed regulations: No proposed 

change. 

Reasons: The Family Educational 

Rights and Privacy Act (FERPA) protects 

the privacy of students’ education 

records and personally identifiable 

information contained therein. Privacy 

is an important factor that the 

Department carefully considered in 

promulgating the proposed regulations 

and recipients will need to consider this 

factor in implementing them. 

To the extent that there may be 

circumstances in which a conflict exists 

between a recipient’s obligations under 

Title IX and under FERPA, the 

Department would maintain the 

provision in § 106.6(e) that expressly 

states that the obligation to comply with 

the Title IX regulations is not obviated 

or alleviated by the FERPA statute or 

regulations. 85 FR 30424. As the 

General Education Provisions Act 

(GEPA) provides, nothing in that statute 

shall be construed to ‘‘affect the 

applicability of title VI of the Civil 

Rights Act of 1964 [42 U.S.C. 2000d et 

seq.], title IX of the Education 

Amendments of 1972 [20 U.S.C. 1681 et 

seq.], title V of the Rehabilitation Act of 

1973 [29 U.S.C. 791 et seq.], the Age 

Discrimination Act [42 U.S.C. 6101 et 

seq.], or other statutes prohibiting 

discrimination, to any applicable 

program.’’ 20 U.S.C. 1221(d). The 

Department has long interpreted this 

provision to mean that ‘‘FERPA 

continues to apply in the context of 

Title IX enforcement, but if there is a 

direct conflict between the requirements 

of FERPA and the requirements of Title 

IX, such that enforcement of FERPA 

would interfere with the primary 

purpose of Title IX to eliminate sexbased discrimination in schools, the 

requirements of Title IX override any 

conflicting FERPA provisions.’’ 85 FR 

30424. 

Some aspects of the proposed 

regulations address areas in which 

recipients may also have obligations 

under FERPA or its implementing 

regulations, 34 CFR part 99, for 

example, provisions regarding the 

exercise of rights by parents, guardians, 

or other authorized legal representatives 

at proposed § 106.6(g); disclosure of 

supportive measures at proposed 

§ 106.44(g)(5); consolidation of 

complaints at proposed § 106.45(e); a 

description of the relevant evidence at 

proposed § 106.45(f)(4); access to an 

investigative report or relevant and not 

otherwise impermissible evidence at 

proposed § 106.46(e)(6); and notification 

of the determination of a sex 

discrimination complaint at proposed 

§§ 106.45(h)(2) and 106.46(h)(1). The 

Department is seeking comments on the 

intersection between the proposed Title 

IX regulations and FERPA, any 

challenges that recipients may face as a 

result of the intersection between the 

two laws, and any steps the Department 

might take to address those challenges 

in the Title IX regulations. 

Section 106.6(g) Exercise of Rights by 

Parents, Guardians, or Other Authorized 

Legal Representatives 

Current regulations: Section 106.6(g) 

states that the Department’s Title IX 

regulations must not be read in 

derogation of any legal right of a parent 

or guardian to act on behalf of a 

complainant, respondent, party, or other 

individual, subject to the obligation to 

comply with the Family Educational 

Rights and Privacy Act, 20 U.S.C. 1232g. 

This right to act on behalf of another 

includes but is not limited to, filing a 

formal complaint. 

Proposed regulations: The 

Department proposes clarifying in this 

section that an authorized legal 

representative has the right to act on 

behalf of a complainant, respondent, or 

other person, subject to proposed 

§ 106.6(e), including but not limited to 

making a complaint through the 

recipient’s grievance procedures for 

complaints of sex discrimination, as 

would a parent or guardian. 

Reasons: Upon reexamining this 

provision, the Department proposes 

adding to the current regulations the 

term ‘‘authorized legal representative’’ 

to fill a gap in the existing regulations 

that was brought to the Department’s 

attention in listening sessions with a 

wide array of stakeholders, including 

students, parents, educators, school 

officials, and advocacy organizations. 

Throughout the United States, an 

individual in the role of an educational 

representative or another similar role is 

legally authorized to act on behalf of 

certain youth in out-of-home care but is 

not necessarily deemed a parent or 

guardian. The Department proposes 

adding the term ‘‘authorized legal 

representative’’ to § 106.6(g), 

recognizing that although terminology 

may differ across States and contexts, 

there is a critical need to empower these 

individuals to act on behalf of another 

person, consistent with their legal 

authority, in matters addressed by the 

proposed regulations. 

Section 106.6(h) and 106.6(b)

Preemptive Effect 

Current regulations: Section 106.6(h) 

states that, to the extent there is any 

conflict between State or local law and 

the Title IX regulations at §§ 106.30, 

106.44, and 106.45, the obligation to 

comply with those sections is not 

obviated or alleviated by any State or 

local law. Current § 106.6(b) states that 

the obligation to comply with part 106 

is not obviated or alleviated by any State 

or local law or other requirement which 

would render any applicant or student 

ineligible, or limit the eligibility of any 

applicant or student, on the basis of sex, 

to practice any occupation or 

profession. 

Proposed regulations: The 

Department proposes eliminating 

§ 106.6(h) entirely and simplifying 

§ 106.6(b) to make clear that all of the 

Title IX regulations would preempt 

State or local law. Proposed § 106.6(b) 

states that a recipient’s obligation to 

comply with part 106 is not obviated or 

alleviated by any State or local law or 

other requirement, and that nothing in 

the Department’s regulations would 

preempt a State or local law that does 

not conflict with these regulations and 

that provides greater protections against 

sex discrimination. 

Reasons: The Department wants to 

ensure recipients understand that their 


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obligations to comply with the 

Department’s Title IX regulations are 

not dependent or conditioned on other 

obligations recipients may be subject to 

in their respective States or localities. 

Current § 106.6(b) states that this 

preemptive effect applies only with 

respect to ‘‘any State or local law or 

other requirement which would render 

any applicant or student ineligible, or 

limit the eligibility of any applicant or 

student, on the basis of sex, to practice 

any occupation or profession.’’ The 

Department wants to ensure that 

recipients are aware that the preemptive 

effect of these regulations are not just 

limited to the circumstances listed in 

§ 106.6(b), nor the provisions 

specifically excerpted in § 106.6(h). The 

proposed regulations would delete the 

language limiting the provision to 

eligibility to practice any occupation or 

profession, making clear in a simple 

comprehensive statement that the Title 

IX regulations preempt any State or 

local law with which there is a conflict. 

The proposed change would also avoid 

the duplication that may exist under 

separate but overlapping provisions. 

In addition, proposed § 106.6(b) 

would clarify that nothing in the 

Department’s proposed regulations 

would preempt a State or local law that 

provides greater protections to students 

and does not conflict with these 

regulations. This clarification would 

ensure that the proposed regulations 

appropriately cover the full scope of 

Title IX while not extending further 

than the Department’s authority to 

promulgate regulations to effectuate 

Title IX. 

E. Procedures 

Section 106.81 Procedures 

Current regulations: Section 106.81 

provides that the procedural provisions 

applicable to Title VI of the Civil Rights 

Act of 1964 are adopted and 

incorporated into the Title IX 

regulations. Current § 106.81 states that 

these procedures may be found at 34 

CFR 100.6 through 100.11 and 34 CFR 

part 101. Finally, current § 106.81 states 

that the definitions in current § 106.30 

do not apply to 34 CFR 100.6 through 

100.11 and 34 CFR part 101. 

Proposed regulations: The 

Department proposes removing the final 

sentence of current § 106.81, which 

states that the definitions in current 

§ 106.30 do not apply to 34 CFR 100.6 

through 100.11 and 34 CFR part 101. 

Reasons: As explained in greater 

detail in the discussion of Definitions in 

the Provisions of General Applicability 

(Section I.B), the Department proposes 

removing current § 106.30 in its 

entirety. Accordingly, the Department 

also proposes removing the statement 

that the definitions in current § 106.30 

do not apply to the Title VI regulations. 

II. Recipient’s Obligation to Operate Its 

Education Program or Activity Free 

From Sex Discrimination 

Statute: Title IX states that ‘‘[n]o 

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). The Department 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. 

A. Sex Discrimination Generally 

As discussed in the Background 

section, the Supreme Court explained in 

Cannon that the objectives of Title IX 

are two-fold: first, to ‘‘avoid the use of 

federal resources to support 

discriminatory practices,’’ and second, 

to ‘‘provide individual citizens effective 

protection against those practices.’’ 441 

U.S. at 704. The Court also clarified the 

broad scope of Title IX in North Haven 

Board of Education, stating: ‘‘[I]f we are 

to give Title IX the scope that its origins 

dictate, we must accord it a sweep as 

broad as its language.’’ 456 U.S. at 521 

(citations and internal alterations 

omitted). 

These cases, together with the text of 

Title IX, make clear that Title IX’s 

prohibition on sex discrimination 

imposes a legal duty on every covered 

recipient of Federal funds to operate its 

education program or activity free from 

sex discrimination. This legal duty 

accordingly requires a recipient to 

respond promptly and equitably when 

sex discrimination may be taking place 

within its education program or activity. 

B. Sex-Based Harassment 

1. OCR’s Guidance and Supreme Court 

Precedent on Title IX’s Application to 

Sexual Harassment 

The Supreme Court and the 

Department have long interpreted Title 

IX to prohibit sexual harassment. In 

1981, OCR Director for Litigation, 

Enforcement and Policy Service 

Antonio J. Califa issued a policy 

memorandum to all OCR regional 

directors advising them that ‘‘[s]exual 

harassment consists of verbal or 

physical conduct of a sexual nature, 

imposed on the basis of sex, by an 

employee or agent of a recipient that 

denies, limits, provides different, or 

conditions the provision of aid, benefits, 

services or treatment protected under 

Title IX.’’ See 1988 Sexual Harassment 

Pamphlet at 2 (quoting OCR Policy 

Memorandum, Aug. 31, 1981, from 

Antonio J. Califa, Director for Litigation, 

Enforcement and Policy Service, OCR to 

Regional Civil Rights Directors), https:// 

files.eric.ed.gov/fulltext/ED330265.pdf. 

Then in 1988, OCR issued a pamphlet 

titled Sexual Harassment: It’s Not 

Academic, which characterized the 

1981 memorandum as having 

‘‘reaffirmed’’ OCR’s jurisdiction: ‘‘In an 

August 1981 policy memorandum, the 

Office for Civil Rights (OCR) of the U.S. 

Department of Education reaffirmed its 

jurisdiction over sexual harassment 

complaints under Title IX . . . .’’ Id. 

The Supreme Court addressed Title 

IX’s coverage of sexual harassment for 

the first time in 1992, when it confirmed 

that a school district could be held 

liable for monetary damages in cases 

involving a teacher sexually harassing a 

student. Franklin, 503 U.S. 60. The 

Court noted that prior to filing her 

lawsuit, the plaintiff filed a complaint 

with OCR in August 1988 in which OCR 

concluded that the school district 

violated Franklin’s Title IX rights by 

subjecting her to sexual harassment and 

by interfering with her right to 

complain. Id. at 64 n.3. By allowing 

monetary damages as a remedy, the 

Court signaled approval for more robust 

enforcement of Title IX to cover sexual 

harassment. See id. at 76 (‘‘[I]n this case 

the equitable remedies suggested by 

respondent and the Federal Government 

are clearly inadequate.’’). 

Following Franklin and beginning in 

1997, OCR issued a series of documents 

to provide additional guidance to 

recipients, students, and others 

regarding Title IX’s prohibition on 

sexual harassment. See, e.g., 1997 

Sexual Harassment Guidance; 2001 

Revised Sexual Harassment Guidance; 

U.S. Dep’t of Educ., Office for Civil 

Rights, Dear Colleague Letter from 

Assistant Secretary Stephanie Monroe 

on Sexual Harassment (Jan. 25, 2006) 

(rescinded upon effective date of 2020 

amendments, Aug. 14, 2020) https://

www2.ed.gov/about/offices/list/ocr/ 

letters/sexhar-2006.html; U.S. Dep’t of 

Educ., Office for Civil Rights, Dear 

Colleague Letter: Sexual Violence (Apr. 

4, 2011) (rescinded in 2017) (2011 Dear 

Colleague Letter on Sexual Violence), 

https://www2.ed.gov/about/offices/list/ 

ocr/letters/colleague-201104.pdf; 2014 

Q&A on Sexual Violence; U.S. Dep’t of 

Educ., Office for Civil Rights, Q&A on 

Campus Sexual Misconduct (Sept. 22, 

2017) (rescinded in 2020) (2017 Q&A on 


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Campus Sexual Misconduct), https://

www2.ed.gov/about/offices/list/ocr/ 

docs/qa-title-ix-201709.pdf. 

OCR published the 1997 Sexual 

Harassment Guidance in the Federal 

Register for public comment after 

‘‘extensive consultation with interested 

parties,’’ including ‘‘students, teachers, 

school administrators, and researchers.’’ 

1997 Sexual Harassment Guidance, 62 

FR 12035. OCR set out the 

circumstances under which sexual 

harassment of students is a form of 

prohibited discrimination under Title 

IX, explaining that sexual harassment 

occurs when ‘‘a school employee 

explicitly or implicitly conditions a 

student’s participation in an education 

program or activity or bases an 

educational decision on the student’s 

submission to unwelcome sexual 

[conduct].’’ Id. at 12038. OCR further 

explained that under Title IX, hostile 

environment harassment requires that 

the sexually harassing conduct be 

‘‘sufficiently severe, persistent or 

pervasive to limit a student’s ability to 

participate in or benefit from an 

education program or activity, or to 

create a hostile or abusive educational 

environment.’’ Id. OCR also discussed 

what constitutes notice of sexual 

harassment of students by its 

employees, students, or third parties 

and how a school should respond upon 

receiving notice of sexual harassment. 

Id. at 12039, 12042–43. OCR rooted this 

interpretation in Supreme Court 

precedent and well-established legal 

principles under Title IX, as well as the 

related nondiscrimination provisions of 

Titles VI and VII of the Civil Rights Act 

of 1964. Id. at 12034. 

In 1998, the Supreme Court held in 

Gebser that a school district may be 

liable for monetary damages if a teacher 

sexually harasses a student, an official 

who has the authority to address the 

harassment has actual knowledge of the 

harassment, and that official is 

deliberately indifferent in responding to 

the harassment. 524 U.S. at 277. The 

following year, the Court held in Davis 

that a school district also may be liable 

for monetary damages if the school has 

actual knowledge of student-on-student 

harassment in its programs or activities, 

it responds with deliberate indifference, 

and the harassment is sufficiently 

severe, pervasive, and objectively 

offensive that it effectively bars the 

student’s access to an educational 

opportunity or benefit. 526 U.S. at 650. 

The Court specifically and repeatedly 

stated that the liability standards for 

sexual harassment established in Gebser 

and Davis were required in private 

actions for monetary damages. Gebser, 

524 U.S. at 283 (‘‘In this case, moreover, 

petitioners seek not just to establish a 

Title IX violation but to recover 

damages based on theories of 

respondeat superior and constructive 

notice. It is that aspect of their action, 

in our view, that is most critical to 

resolving the case.’’ (emphasis in 

original)); Davis, 526 U.S. at 639 

(affirming that Title IX’s coverage of 

student-on-student harassment was not 

in dispute and instead that ‘‘at issue 

here is the question whether a recipient 

of federal education funding may be 

liable for damages under Title IX under 

any circumstances for discrimination in 

the form of student-on-student sexual 

harassment’’); see also Davis, 526 U.S. at 

633, 641–44, 649–53; Gebser, 524 U.S. at 

287–88. 

In particular, in setting the damages 

liability standards for recipients, the 

Court was concerned about the 

possibility of requiring a school to pay 

money damages for harassment of 

which it was not aware and in amounts 

that exceeded the recipient’s level of 

Federal funding. Gebser, 524 U.S. 289– 

90. At the same time, the Court 

acknowledged the authority of Federal 

agencies, such as the Department, to 

‘‘promulgate and enforce requirements 

that effectuate [Title IX’s] 

nondiscrimination mandate,’’ even in 

circumstances that would not give rise 

to a claim for monetary damages. Id. at 

292. The Court noted that ‘‘the 

Department of Education could enforce 

the requirement administratively’’ that a 

school ‘‘promulgate a grievance 

procedure’’ even though the failure to 

do so ‘‘does not itself constitute 

‘discrimination’ under Title IX.’’ Id. 

Similarly, the Court has explained that 

the Department may require schools to 

sign assurances of compliance under 

Title IX, even though the failure to sign 

such assurances would not itself 

constitute sex discrimination by the 

recipient. See Grove City Coll., 465 U.S. 

at 574. 

Following the Gebser decision, the 

Department informed school 

superintendents and college and 

university presidents that the Court’s 

decision did not change a school’s 

obligation to take reasonable steps to 

prevent and eliminate sexual 

harassment as a condition of their 

receipt of Federal funding. See U.S. 

Dep’t of Educ., Letter from Secretary 

Richard W. Riley to Superintendents of 

Schools (Aug. 31, 1998), https://

www2.ed.gov/offices/OCR/archives/pdf/ 

AppC.pdf; U.S. Dep’t of Educ., Letter 

from Secretary Richard W. Riley to 

College and University Presidents (Jan. 

28, 1999), https://www2.ed.gov/News/ 

Letters/990128.html. In 2000, OCR 

explained in its notice and request for 

comments on the proposed Revised 

Sexual Harassment Guidance that 

although ‘‘[i]n most important respects, 

the substance of the 1997 Guidance was 

reaffirmed in the Court’s opinions in 

Gebser and Davis, [the Department] 

determined that in certain areas the 

1997 Guidance could be strengthened 

by further clarification and explanation 

of the regulatory basis for the guidance.’’ 

U.S. Dep’t of Educ., Office for Civil 

Rights, Request for Comments, Revised 

Sexual Harassment Guidance: 

Harassment of Students by School 

Employees, Other Students, or Third 

Parties 65 FR 66092 (Nov. 2, 2000) 

(Request for Comments on the 2001 

Revised Sexual Harassment Guidance), 

https://www.govinfo.gov/content/pkg/ 

FR-2000-11-02/pdf/00-27910.pdf. See 

also U.S. Dep’t of Educ., Office for Civil 

Rights, Notice of Availability, Revised 

Sexual Harassment Guidance, 66 FR 

5512 (Jan. 19, 2001), https://

www.govinfo.gov/content/pkg/FR-2001- 

01-19/pdf/01-1606.pdf. 

The 2001 Revised Sexual Harassment 

Guidance did not change the standards 

that OCR used to determine when 

prohibited sexual harassment has 

occurred. Request for Comments on the 

2001 Revised Sexual Harassment 

Guidance, 65 FR 66093. Rather, OCR 

clarified that ‘‘these standards apply to 

our ability to find a violation and seek 

corrective action in administrative 

enforcement of Title IX.’’ Id. OCR 

explained that ‘‘the focus of the 

guidance is on a school’s administrative 

responsibilities under the 

nondiscrimination requirements of the 

Title IX statute and regulations’’ to take 

effective action to prevent, eliminate, 

and remedy sexual harassment 

occurring in its programs or activities, 

rather than its liability for money 

damages in private lawsuits. Id. When 

the revised guidance was issued, it 

noted that ‘‘commenters uniformly 

agreed with OCR that the Court limited 

the liability standards established in 

Gebser and Davis to private actions for 

monetary damages’’ and ‘‘that the 

administrative enforcement standards 

reflected in the 1997 Guidance remain 

valid in OCR enforcement actions.’’ 

2001 Revised Sexual Harassment 

Guidance at iv, vi (‘‘[B]oth Davis and the 

Department tell schools to look at the 

‘constellation of the surrounding 

circumstances, expectations, and 

relationships’ (526 U.S. at 651 (citing 

Oncale v. Sundowner Offshore Services, 

Inc., 523 U.S. 75, 82 (1998)), and the 

Davis Court cited approvingly to the 

underlying core factors described in the 

1997 Guidance for evaluating the 

context of the harassment.’’). Finally, 


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OCR explained that ‘‘[w]hile Gebser and 

Davis made clear that Title VII agency 

principles do not apply in determining 

liability for money damages under Title 

IX, the Davis court also indicated, 

through its specific references to Title 

VII caselaw, that Title VII remains 

relevant in determining what constitutes 

hostile environment sexual harassment 

under Title IX.’’ Id. at vi. 

As noted above, OCR issued 

subsequent guidance documents on 

harassment on the basis of sex, 

including sexual harassment, that built 

on the concepts from the 1997 Sexual 

Harassment Guidance and the 2001 

Revised Sexual Harassment Guidance. 

See U.S. Dep’t of Educ., Office for Civil 

Rights, Dear Colleague Letter: 

Harassment and Bullying (Oct. 26, 2010) 

(2010 Dear Colleague Letter on 

Harassment and Bullying), https://

www2.ed.gov/about/offices/list/ocr/ 

letters/colleague-201010.pdf; 2011 Dear 

Colleague Letter on Sexual Violence; 

2014 Q&A on Sexual Violence; 2017 

Q&A on Campus Sexual Misconduct. 

OCR issued these guidance documents 

to assist recipients in meeting their 

obligations and to provide the public 

with information about their rights 

under the Title IX statute and 

regulations. These guidance documents 

provided information and examples to 

inform recipients about how OCR 

evaluates compliance with Title IX. 

2. The 2020 Amendments’ Framework 

for Addressing Sexual Harassment 

Under Title IX 

On November 29, 2018, the 

Department published a notice of 

proposed rulemaking to clarify and 

modify the Title IX regulations. 2018 

NPRM. In response to the 2018 NPRM, 

the Department received more than 

124,000 comments expressing a wide 

variety of views on the proposed 

regulations. On May 19, 2020, the 

Department published the 2020 

amendments to the Title IX regulations, 

which went into effect on August 14, 

2020. 85 FR 30026. 

In the preamble to the 2020 

amendments, the Department explained 

that ‘‘[n]either Gebser nor Davis opined 

as to what the appropriate conditions 

(e.g., definition of sexual harassment, 

actual knowledge) and liability standard 

(e.g., deliberate indifference) must or 

should be for the Department’s 

administrative enforcement.’’ Id. at 

30033. The Department recognized its 

flexibility to depart from the standards 

and conditions articulated in Gebser 

and Davis, explaining that the 

‘‘Department has regulatory authority to 

select conditions and a liability 

standard different from those used in 

the Gebser/Davis framework, because 

the Department has authority to issue 

rules that require recipients to take 

administrative actions to effectuate Title 

IX’s non-discrimination mandate.’’ Id. 

Notwithstanding this recognition of 

its distinct administrative authority to 

enforce Title IX, in the 2020 

amendments the Department chose to 

use the Gebser/Davis framework as the 

starting point for describing a recipient’s 

legal obligation to address sexual 

harassment under Title IX, departing in 

many respects from OCR’s prior 

longstanding guidance that had been 

developed to ensure a recipient’s 

implementation of Title IX’s 

protections. The Department also stated 

that it was using Title IX’s ‘‘statutory 

authority to issue rules to effectuate the 

purpose of Title IX,’’ to ‘‘reasonably 

expand[ ]’’ aspects of that ‘‘framework to 

further the purposes of Title IX in the 

context of administrative enforcement, 

holding schools responsible for taking 

more actions than what the Gebser/ 

Davis framework requires.’’ Id. at 30033, 

30035. 

After extensive review, the 

Department’s current view is that the 

2020 amendments do not adequately 

promote full implementation of Title 

IX’s prohibition on sex discrimination, 

including sex-based harassment, by a 

recipient in its education program or 

activity. For example, the 2020 

amendments do not require a 

postsecondary institution to investigate 

sexual harassment in its education 

program or activity, even if its 

leadership has persuasive evidence that 

harassment is taking place, unless the 

person who experienced the harassment 

(i.e., the complainant) reported the 

harassment in writing to a specifically 

designated employee. As a result, a 

complainant who does not report the 

harassment to the correct individual 

may be denied access to an educational 

environment free from sex 

discrimination, and the recipient may 

be discriminating based on sex in 

operating its program or activity. Also, 

stakeholders reported that certain 

requirements of the 2020 amendments 

have resulted in decreased reporting of 

sexual harassment and may have 

impeded recipients from responding 

promptly and equitably to allegations of 

sexual harassment in its educational 

environment. The Department’s current 

view is that it is necessary to amend its 

Title IX regulations to clarify a 

recipient’s obligation to take prompt 

and effective action to end all sex-based 

harassment, to help ensure that Title 

IX’s protections are fully enforced, and 

to avoid recipients’ use of Federal funds 

to support discriminatory practices. 

C. Revised Definitions 

Section 106.2 Definition of 

‘‘Complainant’’ 

Current regulations: Section 106.30 

defines ‘‘complainant’’ as ‘‘an 

individual who is alleged to be the 

victim of conduct that could constitute 

sexual harassment.’’ 

Proposed regulations: The 

Department proposes moving the 

definition of ‘‘complainant’’ to § 106.2, 

referring to ‘‘sex discrimination’’ rather 

than ‘‘sexual harassment,’’ and 

removing the term ‘‘victim.’’ The 

Department also proposes adding 

language stating that a third-party 

complainant (i.e., a person other than a 

student or employee) must be 

participating or attempting to 

participate in the recipient’s education 

program or activity when the alleged sex 

discrimination occurred. 

Reasons: The Department proposes 

that ‘‘complainant’’ encompass anyone 

who is alleged to have been subjected to 

conduct that could constitute sex 

discrimination under Title IX. The 

Department also proposes removing the 

current definition’s reference to the 

complainant as a ‘‘victim’’ as the term 

could be perceived as stigmatizing or 

pejorative. 

The Department recognizes in 

proposed § 106.6(g) that a parent, 

guardian, or other authorized legal 

representative may have a legal right to 

act on behalf of a complainant, 

including by making a complaint of sex 

discrimination. This approach is 

consistent with current § 106.6(g), 

which states that the Title IX regulations 

must not be ‘‘read in derogation of any 

legal right of a parent or guardian’’ to act 

on behalf of a complainant, including by 

filing a formal complaint. The 

Department stated in the preamble to 

the 2020 amendments that ‘‘when a 

party is a minor or has a guardian 

appointed, the party’s parent or 

guardian may have the legal right to act 

on behalf of the party,’’ although the 

minor or person with an appointed 

guardian would be the party (i.e., the 

complainant). 85 FR 30453. As 

explained in the preamble to the 2020 

amendments, ‘‘the parent or guardian 

must be permitted to exercise the rights 

granted to the party . . . whether such 

rights involve requesting supportive 

measures or participating in a grievance 

process.’’ Id. The Department further 

explained in the preamble to the 2020 

amendments that ‘‘the parent or 

guardian must be permitted to 

accompany the student to meetings, 

interviews, and hearings during a 

grievance process to exercise rights on 

behalf of the student, while the 


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student’s advisor of choice may be a 

different person from the parent or 

guardian.’’ Id. As explained in the 

discussion of proposed § 106.6(g), the 

Department has received feedback that a 

reference to parents and guardians is 

underinclusive because it does not 

recognize the rights of individuals who 

are legally authorized to act on behalf of 

children in out-of-home care. As a 

result, the Department proposes adding 

the phrase ‘‘other authorized legal 

representative’’ in proposed § 106.6(g). 

Under proposed § 106.6(g), a parent, 

guardian, or other authorized legal 

representative may have a legal right to 

act on a student’s behalf, including by 

making a complaint on behalf of a 

complainant; however, the student 

would remain the complainant. 

The current regulations restrict the 

persons who can make a complaint 

under the recipient’s grievance 

procedures for complaints of sex 

discrimination other than sexual 

harassment to students and employees. 

34 CFR 106.8(c). The current regulations 

permit any complainant, including a 

student, employee, or third party who 

was participating or attempting to 

participate in the recipient’s education 

program or activity at the time of filing, 

to file a formal complaint alleging 

sexual harassment. 34 CFR 106.30(a) 

(definition of ‘‘complainant’’ and 

‘‘formal complaint’’). After considering 

the issue, the Department’s current view 

is that a third party who was 

participating or attempting to 

participate in the recipient’s education 

program or activity when the alleged sex 

discrimination occurred should be 

permitted to make a complaint of sex 

discrimination, including sex-based 

harassment, under the recipient’s 

grievance procedures as addressed in 

proposed § 106.45(a)(2). This would be 

unlike the current regulations, which 

consider the complainant’s participation 

in the education program or activity at 

the time of filing the formal complaint. 

In addition, although the current 

regulations’ limits on who can file a 

formal complaint address only 

complaints of sexual harassment, the 

proposed regulations would address all 

complaints of sex discrimination, 

including sex-based harassment. This 

proposal is consistent with the decision 

by the U.S. Court of Appeals for the 

First Circuit in Doe v. Brown University, 

896 F.3d 127, 132–33 (1st Cir. 2018), 

which found that the scope of Title IX’s 

‘‘subject to discrimination under’’ 

language is ‘‘circumscribed to persons 

who experience discriminatory 

treatment while participating, or at least 

attempting to participate, in education 

programs or activities’’ provided by the 

recipient. Id. (upholding district court’s 

dismissal of Title IX claim by third 

party who was sexually assaulted on 

recipient’s campus but was not 

participating or attempting to 

participate in the recipient’s education 

program or activity). Examples of 

possible third-party complainants 

include a prospective student, a visiting 

student-athlete, or a guest speaker who 

is participating or attempting to 

participate in the recipient’s education 

program or activity. This third-party 

participation requirement would not 

apply to a student, employee, or those 

persons authorized to act on behalf of a 

complainant, respondent, or other 

person under proposed § 106.6(g). 

Section 106.2 Definition of 

‘‘Complaint’’ 

Current regulations: The current 

regulations do not define ‘‘complaint.’’ 

However, current § 106.30 defines 

‘‘formal complaint’’ as a document or 

electronic submission that contains the 

complainant’s signature or otherwise 

indicates that the complainant is the 

person filing the formal complaint; 

alleges sexual harassment against a 

respondent; and requests that the 

recipient investigate the allegation of 

sexual harassment under its grievance 

process for formal complaints of sexual 

harassment in § 106.45. A formal 

complaint is filed by a complainant 

with the Title IX Coordinator or signed 

by the Title IX Coordinator. The current 

regulations provide several methods for 

filing the formal complaint, including in 

person, by mail, or by email. The 

current regulations specify that when 

the Title IX Coordinator signs a formal 

complaint, the Title IX Coordinator is 

not a complainant or otherwise a party 

under part 106 or under § 106.45, and 

must comply with the requirements of 

part 106, including § 106.45(b)(1)(iii). 

Current § 106.8(c) requires that a 

recipient provide notification of its 

grievance procedures, including how to 

report or file a complaint of sex 

discrimination, to the following: 

applicants for admission and 

employment; students; parents or legal 

guardians of elementary and secondary 

school students; employees; and all 

unions and professional organizations 

holding collective bargaining or 

professional agreements with the 

recipient. 

Proposed regulations: The 

Department proposes defining 

‘‘complaint’’ to cover complaints of any 

type of sex discrimination and not 

limiting ‘‘complaint’’ to a written 

request. Specifically, the Department 

proposes removing the definition of 

‘‘formal complaint,’’ which is limited to 

a document requesting that the recipient 

initiate its grievance process under 

current § 106.45, and replacing it with a 

definition of ‘‘complaint’’ that is an oral 

or written request to the recipient to 

initiate the recipient’s grievance 

procedures for sex discrimination under 

§ 106.45, and if applicable § 106.46. The 

Department proposes moving the 

definition of ‘‘complaint’’ to § 106.2 

because its applicability is not limited 

to sex-based harassment. 

The proposed definition would clarify 

that a complaint may be oral or written. 

The proposed regulations would remove 

the requirement that the formal 

complaint contain the complainant’s 

physical or digital signature, or 

otherwise indicate that the complainant 

is the person filing the formal 

complaint. 

The proposed definition of 

‘‘complaint’’ would not specify who can 

make a complaint, but this information 

would be specified in proposed 

§ 106.45(a)(2). As explained in the 

discussion of proposed § 106.45(a)(2), 

the Department proposes placing 

limitations on who may make a 

complaint of sex-based harassment that 

obligates a recipient to initiate its 

grievance procedures due to the nature 

of those allegations. However, the 

Department does not propose placing 

any limitations on who can provide 

information to the Title IX Coordinator 

about conduct that may constitute sex 

discrimination under Title IX, including 

sex-based harassment. When a Title IX 

Coordinator is notified about conduct 

that may constitute sex discrimination 

under Title IX, including sex-based 

harassment, they would be required to 

act under proposed § 106.44. 

Reasons: The Department proposes 

defining ‘‘complaint’’ to provide clarity 

for how an individual can request that 

a recipient initiate its grievance 

procedures under proposed § 106.45, 

and if applicable proposed § 106.46, for 

all types of sex discrimination 

prohibited by Title IX. 

The current regulations do not 

provide information about how an 

individual could request that a recipient 

initiate its grievance procedures in 

response to sex discrimination other 

than sexual harassment. First, the 

current definition of ‘‘formal complaint’’ 

applies only to sexual harassment. 

Second, although current § 106.8(c) 

requires a recipient to notify individuals 

of how to make a complaint, the 

Department did not define the term 

‘‘complaint’’ or specify that a complaint 

is a request to the recipient to initiate its 

grievance procedures. The current 

regulations have different requirements 


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for complaints of sexual harassment and 

complaints of other forms of sex 

discrimination under Title IX and 

require a formal written document to 

request that the recipient initiate its 

grievance procedures in response only 

to sexual harassment. Specifically, 

current § 106.30 requires a formal 

written document to request that the 

recipient initiate its grievance 

procedures under § 106.45 with respect 

to allegations of sexual harassment but 

does not require a formal written 

document to request that the recipient 

initiate its grievance procedures under 

§ 106.8(c) with respect to allegations of 

other forms of sex discrimination. In the 

preamble to the 2020 amendments, the 

Department explained that a formal 

written document was important to 

avoid confusion in initiating a 

recipient’s grievance procedures under 

§ 106.45. See 85 FR 30130. 

OCR received feedback from 

stakeholders during the June 2021 Title 

IX Public Hearing, listening sessions, 

and the meetings held in 2022 under 

Executive Order 12866 that expressed 

concerns that the 2020 amendments 

created an onerous and cumbersome 

process for a complainant seeking to 

request that the recipient initiate its 

grievance procedures and requesting 

that the Department streamline the 

complaint process. Although the current 

regulations permit a complainant to file 

a formal complaint by email and using 

a digital signature, see 85 FR 30133, 

several stakeholders stated that the 

signature and writing requirements 

generally discouraged individuals from 

making complaints. 

Based on the feedback received from 

stakeholders and the current distinction 

between a complaint of sex 

discrimination and a formal complaint 

of sexual harassment, the Department is 

concerned that the current regulations 

may have created a barrier for potential 

complainants to effectively assert their 

rights under Title IX. It is the 

Department’s current view that 

additional clarity is needed to ensure 

that recipients are aware of and can 

respond appropriately to sex 

discrimination in their education 

programs or activities. 

The Department proposes creating a 

single process to receive these requests 

by replacing the definition of ‘‘formal 

complaint’’ with a definition of 

‘‘complaint’’ to clarify that a complaint 

would be the mechanism by which an 

individual may request that a recipient 

initiate its grievance procedures in 

response to all forms of sex 

discrimination. The Department’s 

proposed regulations would define 

‘‘complaint’’ more broadly to include 

either an oral or a written request to the 

recipient to initiate the recipient’s 

grievance procedures for complaints of 

sex discrimination under Title IX, as 

described in proposed § 106.45, and if 

applicable proposed § 106.46. This 

revised definition of ‘‘complaint’’ would 

recognize that a person may seek to 

make a complaint in a variety of ways 

and would allow both oral and written 

complaints, while also no longer 

requiring a signature. 

The proposed regulations would also 

differ from the current regulations in 

that they would not require a complaint 

to be made to the Title IX Coordinator, 

or to any specific employee of the 

recipient; a complaint need only be 

made to the recipient. As explained in 

greater detail in the discussion of 

proposed § 106.44(c), the proposed 

regulations would require a recipient to 

ensure that its Title IX Coordinator is 

notified of information about conduct 

that may constitute sex discrimination 

under Title IX in the recipient’s 

education program or activity when that 

information is provided to certain 

categories of employees. The proposed 

regulations would also require other 

categories of employees to, at a 

minimum, provide the Title IX 

Coordinator’s contact information and 

information about how to report sex 

discrimination to any person who 

provides the employee with information 

about conduct that may constitute sex 

discrimination under Title IX. As 

explained in greater detail in the 

discussion of proposed § 106.44(f), the 

proposed regulations would also require 

a recipient’s Title IX Coordinator to take 

certain steps upon being notified of 

conduct that may constitute sex 

discrimination under Title IX. In 

addition, as explained in greater detail 

in the discussion of proposed 

§ 106.44(k), a complaint would no 

longer be required before a recipient 

could offer to a complainant and 

respondent its informal resolution 

process under proposed § 106.44(k); 

instead, the informal resolution process 

could be offered and, if accepted, 

initiated by the recipient when it 

receives information about conduct that 

may constitute sex discrimination under 

Title IX even when no complaint is 

made. 

Third-party complaints. The current 

regulations require a complainant to be 

participating or attempting to 

participate in the recipient’s education 

program or activity at the time of filing 

a formal complaint of sexual 

harassment. 34 CFR 106.30(a) 

(definition of ‘‘formal complaint’’). In 

adding that requirement to the 2020 

amendments, the Department explained 

that ‘‘there is no requirement that [a] 

complainant must be a student, 

employee, or [have some] other 

designated relationship with the 

recipient in order to be treated as a 

‘complainant’ entitled to a prompt, nondeliberately indifferent response from 

the recipient,’’ but that the participation 

limitation on when a complainant can 

file a formal complaint of sexual 

harassment ‘‘prevents recipients from 

being legally obligated to investigate 

allegations made by complainants who 

have no relationship with the 

recipient.’’ 85 FR 30138, 30198. The 

Department also provided examples of 

situations in which a complainant 

would be attempting to participate in a 

recipient’s education program or 

activity. See id. at 30138, 30198 n.869, 

30219. The current regulations do not 

address third-party complainants or 

include a participation requirement 

with respect to complaints of sex 

discrimination other than sexual 

harassment; instead, the current 

regulations state that grievance 

procedures that address other forms of 

sex discrimination apply to student and 

employee complaints. 34 CFR 106.8(c). 

OCR heard from several stakeholders 

during the June 2021 Title IX Public 

Hearing, listening sessions, and the 

meetings held in 2022 under Executive 

Order 12866 who requested either 

reconsideration of the scope of who is 

deemed to be attempting to participate 

in the recipient’s education program or 

activity or eliminating the requirement 

that a complainant must be participating 

or attempting to participate in the 

recipient’s education program or 

activity. The Department also 

considered that such a requirement may 

be redundant as applied to employee 

and student complainants who are, 

based on their enrollment or 

employment, either participating or 

attempting to participate in the 

recipient’s education program or 

activity. After considering an array of 

stakeholder views and reevaluating the 

issue, the Department proposes 

eliminating this requirement for making 

a complaint of sex discrimination, 

including sex-based harassment, with 

respect to a student or employee 

complainant. 

In proposed § 106.45(a)(2), the 

Department would specify who can 

make a complaint requesting that the 

recipient initiate its grievance 

procedures. Under proposed 

§ 106.45(a)(2)(iv), a third party must be 

participating in or attempting to 

participate in the recipient’s education 

program or activity in order to make a 

complaint requesting that the recipient 

initiate grievance procedures. The 


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Department’s proposed regulations seek 

to ensure that anyone who is 

participating or attempting to 

participate in a recipient’s program or 

activity is able to make a complaint of 

sex discrimination while being 

cognizant of the possible increased 

burden for a recipient based on 

complaints made by third parties who 

are not participating or attempting to 

participate in the recipient’s education 

program or activity. The Department’s 

proposed regulations would also shift 

the focus from whether the third party 

was participating or attempting to 

participate in the recipient’s education 

program or activity at the time the 

complaint was filed to whether the third 

party was participating or attempting to 

participate in the recipient’s education 

program or activity when the alleged sex 

discrimination occurred. For example, 

under the proposed regulations, the 

visiting student-athlete who was 

sexually harassed by a student of the 

recipient during an intercollegiate swim 

meet would be considered to be 

participating in the recipient’s 

education program or activity at the 

time of the alleged sex-based 

harassment. In contrast, and also under 

the proposed regulations, if the same 

visiting student-athlete was sexually 

harassed by one of the recipient’s 

students at an off-campus bar days after 

the swim meet concluded, the visiting 

student-athlete would not be considered 

to be participating or attempting to 

participate in the recipient’s education 

program or activity at the time that the 

alleged sex-based harassment occurred. 

The Department’s tentative view is that 

the proposed regulations would be more 

aligned with the purpose of Title IX to 

ensure that a recipient operates its 

education program or activity free from 

sex discrimination. 

Section 106.2 Definition of Prohibited 

‘‘Sex-Based Harassment’’ 

Current regulations: Section 106.30(a) 

defines ‘‘sexual harassment’’ as conduct 

on the basis of sex that satisfies one or 

more of the following: (1) an employee 

of the recipient conditioning the 

provision of an aid, benefit, or service 

of the recipient on an individual’s 

participation in unwelcome sexual 

conduct; (2) unwelcome conduct 

determined by a reasonable person to be 

so severe, pervasive, and objectively 

offensive that it effectively denies a 

person equal access to the recipient’s 

education program or activity; or (3) 

‘‘sexual assault’’ as defined in 20 U.S.C. 

1092(f)(6)(A)(v), ‘‘dating violence’’ as 

defined in 34 U.S.C. 12291(a)(10), 

‘‘domestic violence’’ as defined in 34 

U.S.C. 12291(a)(8), or ‘‘stalking’’ as 

defined in 34 U.S.C. 12291(a)(30). 

Proposed regulations: The 

Department proposes moving the 

definition from § 106.30(a) to § 106.2 

and clarifying that the definition covers 

all forms of sex-based harassment, as 

opposed to only sexual harassment. The 

proposed new definition of ‘‘sex-based 

harassment’’ would clarify that it covers 

sexual harassment, harassment on the 

bases described in proposed § 106.10, 

and other conduct on the basis of sex 

that is in one or more of the following 

categories: (1) an employee, agent, or 

other person authorized by the recipient 

to provide an aid, benefit, or service 

under the recipient’s education program 

or activity explicitly or implicitly 

conditioning the provision of such an 

aid, benefit, or service on a person’s 

participation in unwelcome sexual 

conduct; (2) unwelcome sex-based 

conduct that is sufficiently severe or 

pervasive, that, based on the totality of 

the circumstances and evaluated 

subjectively and objectively, denies or 

limits a person’s ability to participate in 

or benefit from the recipient’s education 

program or activity (i.e., creates a hostile 

environment); or (3)(i) ‘‘sexual assault’’ 

meaning an offense classified as a 

forcible or nonforcible sex offense under 

the uniform crime reporting system of 

the Federal Bureau of Investigation; (ii) 

‘‘dating violence’’ meaning violence 

committed by a person who is or has 

been in a social relationship of a 

romantic or intimate nature with the 

victim; (iii) ‘‘domestic violence’’ 

meaning felony or misdemeanor crimes 

of violence committed by a person who 

(A) is a current or former spouse or 

intimate partner of the victim under the 

family or domestic violence laws of the 

jurisdiction of the recipient, or a person 

similarly situated to a spouse of the 

victim; (B) is cohabitating, or has 

cohabitated, with the victim as a spouse 

or intimate partner; (C) shares a child in 

common with the victim; or (D) 

commits acts against a youth or adult 

victim who is protected from those acts 

under the family or domestic violence 

laws of the jurisdiction; or (iv) 

‘‘stalking’’ meaning engaging in a course 

of conduct directed at a specific person 

that would cause a reasonable person to 

(A) fear for the person’s safety or the 

safety of others; or (B) suffer substantial 

emotional distress. The proposed 

definition also clarifies that conduct 

meeting the definition of ‘‘sex-based 

harassment’’ in proposed § 106.2 

constitutes sex-based harassment that is 

prohibited under Title IX. With this 

clarification, the Department recognizes 

that there may be other types of conduct 

that could constitute sex-based 

harassment under other laws or a 

recipient’s policies but are not 

prohibited under Title IX. 

The proposed definition would clarify 

that the scope of sex-based harassment 

includes bases that were not expressly 

covered under the term ‘‘sexual 

harassment’’ in current § 106.30(a), 

including harassment based on sex 

stereotypes, sex characteristics, 

pregnancy or related conditions, sexual 

orientation, and gender identity. 

The proposed definition would also 

include revisions to the scope of 

conduct described in its second 

category, which addresses unwelcome 

conduct on the basis of sex. These 

proposed revisions would provide 

factors to consider when determining 

whether unwelcome sex-based conduct 

creates a hostile environment in a 

recipient’s education program or 

activity. 

The third category of the proposed 

definition would still incorporate the 

definition of ‘‘sexual assault’’ from the 

Clery Act. The proposed definition 

would incorporate the definitions of 

‘‘dating violence,’’ ‘‘domestic violence,’’ 

and ‘‘stalking’’ from the Violence 

Against Women Reauthorization Act of 

2022 (VAWA 2022). Instead of 

including cross-references to statutory 

provisions in the Clery Act and VAWA 

2022, the proposed definition would 

include language from the statutory 

definitions themselves to make it clear 

in the text of the regulations how these 

terms are defined for purposes of Title 

IX. The Department proposes 

incorporating the portion of the 

definition of ‘‘domestic violence’’ that is 

relevant to Title IX. 

Reasons: Sex-Based Harassment. The 

Department’s proposed regulations refer 

to ‘‘sex-based harassment’’ rather than 

‘‘sexual harassment.’’ This revision is 

consistent with the Department’s 

statement that it interpreted Title IX to 

prohibit gender-based harassment in 

response to comments received on the 

2018 NPRM. Specifically, the 

Department explained that its position 

in the 2020 amendments remained 

similar to its position in the 2001 

Revised Sexual Harassment Guidance 

that ‘‘ ‘[a]lthough Title IX does not 

prohibit discrimination on the basis of 

sexual orientation, sexual harassment 

directed at gay or lesbian students that 

is sufficiently serious to limit or deny a 

student’s ability to participate in or 

benefit from the school’s program 

constitutes sexual harassment 

prohibited by Title IX under the 

circumstances described in this 

guidance.’ ’’ 85 FR 30178–79 (quoting 

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Guidance at 3). The Department also 

stated that ‘‘gender-based harassment, 

which may include acts of verbal, 

nonverbal, or physical aggression, 

intimidation, or hostility based on sex 

or sex-stereotyping, but not involving 

conduct of a sexual nature, is also a 

form of sex discrimination to which a 

school must respond.’’ Id. at 30179 

(quoting 2001 Revised Sexual 

Harassment Guidance at 3). To address 

the concern that the 2020 amendments 

were underinclusive in scope because 

they were limited to sexual harassment, 

the Department stated that ‘‘[t]hese final 

regulations include sexual harassment 

as unwelcome conduct on the basis of 

sex that a reasonable person would 

determine is so severe, pervasive, and 

objectively offensive that it denies a 

person equal educational access; this 

includes but is not limited to 

unwelcome conduct of a sexual nature, 

and may consist of unwelcome conduct 

based on sex or sex stereotyping.’’ Id. 

During the June 2021 Title IX Public 

Hearing and in listening sessions with 

stakeholders, OCR received requests to 

clarify that the Title IX regulations 

apply to both sexual harassment and 

other forms of harassment based on sex, 

including harassment based on sexual 

orientation and gender identity. These 

requests indicated to the Department 

that the current definition of ‘‘sexual 

harassment’’ does not provide adequate 

clarity as to the scope of harassment 

covered. Specifically, stakeholders 

expressed confusion regarding the scope 

of sexual harassment, including noting 

that they were receiving questions from 

their students regarding whether certain 

forms of harassing conduct are covered 

under the current definition of ‘‘sexual 

harassment.’’ Stakeholders also 

expressed concern that the definition of 

‘‘sexual harassment’’ fails to protect 

many individuals who experience other 

forms of sex-based harassment due to 

the limited coverage of the definition. 

After reevaluating the issue, the 

Department proposes revising the 

regulatory text to make clear that sexual 

harassment, as well as other forms of 

sex-based harassment on the bases 

described in proposed § 106.10, are 

covered under the Department’s Title IX 

regulations to dispel any confusion 

regarding the scope of sex-based 

harassment that is prohibited under 

Title IX and therefore requires a 

recipient to respond. The proposed 

clarifications would more clearly 

implement the statements made by the 

Department in the preamble to the 2020 

amendments that Title IX’s broad 

nondiscrimination mandate covers all 

forms of harassment based on sex, 

including sexual harassment, which has 

also been OCR’s longstanding view. See, 

e.g., 2001 Revised Sexual Harassment 

Guidance at v, 3 (explaining that 

gender-based harassment, including 

harassment based on sex stereotyping, is 

covered under Title IX); 2010 Dear 

Colleague Letter on Harassment and 

Bullying at 7–8 (stating that Title IX 

prohibits gender-based harassment and 

explaining that ‘‘it can be sex 

discrimination if students are harassed 

either for exhibiting what is perceived 

as a stereotypical characteristic for their 

sex, or for failing to conform to 

stereotypical notions of masculinity and 

femininity’’); U.S. Dep’t of Educ., Office 

for Civil Rights, Supporting the 

Academic Success of Pregnant and 

Parenting Students Under Title IX of the 

Education Amendments of 1972 at 8 

(June 2013) (2013 Pregnancy Pamphlet), 

https://www2.ed.gov/about/offices/list/ 

ocr/docs/pregnancy.pdf (‘‘Title IX 

prohibits harassment of students based 

on sex, including harassment because of 

pregnancy or related conditions.’’); see 

also 85 FR 30179. The Department also 

notes that consistent with the 

Department’s position in the 2020 

amendments, the proposed definition of 

‘‘sex-based harassment’’ prohibited 

under Title IX would apply regardless of 

the sex of the harasser, i.e., including if 

the harasser and the person being 

harassed are members of the same sex 

and that sex-based harassment ‘‘is not 

limited to being bi-directional (male-tofemale and female-to-male)’’ and ‘‘any 

person may experience [sex-based] 

harassment as a form of sex 

discrimination, irrespective of the 

identity of the complainant or 

respondent.’’ See 85 FR 30179. Further 

explanation of the scope of Title IX’s 

prohibition on sex discrimination and 

the bases of sex-based harassment 

covered by this proposed definition is in 

the discussion of proposed § 106.10. 

The Department proposes adding 

language to the proposed definition of 

‘‘sex-based harassment’’ clarifying that 

conduct that meets the definition of 

‘‘sex-based harassment’’ is prohibited 

under Title IX and therefore a recipient 

must take action to address it in 

accordance with proposed § 106.44. 

This clarification would also serve to 

distinguish sex-based harassment that is 

prohibited under Title IX from conduct 

that may be sex-based harassment under 

other laws or recipients’ policies but 

does not meet the Title IX regulatory 

definition of ‘‘sex-based harassment.’’ A 

recipient may determine that it is 

obligated to address sex-based 

harassment that does not meet the 

definition of ‘‘sex-based harassment’’ 

prohibited under Title IX; however, 

nothing in the proposed regulations 

would require it to do so. This is 

consistent with the Department’s 

position in the current regulations that 

even when conduct does not meet the 

definition of sexual harassment under 

current 106.30(a), nothing precludes a 

recipient from addressing the conduct 

under the recipient’s code of conduct or 

other non-Title IX process. See, e.g., id. 

at 30090, 30199, 30206. Thus, under the 

proposed regulations, a recipient would 

be able use its Title VII process to meet 

its obligations under Title VII to address 

alleged conduct by an employee that 

does not meet the proposed definition of 

‘‘sex-based harassment’’ under Title IX 

because, for example, that conduct did 

not create a hostile environment. In 

these instances, a recipient may still 

have a duty under Title VII to address 

the alleged conduct before it becomes 

actionable. See Erickson v. Wis. Dep’t of 

Corr., 469 F.3d 600, 605–06 (7th Cir. 

2006) (stating that Title VII’s ‘‘‘primary 

objective’ . . . is ‘not to provide redress 

but to avoid harm’’’ and that 

‘‘[e]mployers need to take ‘all steps 

necessary to prevent sexual harassment 

from occurring,’’ including ‘‘taking 

reasonable steps to prevent harassment 

once informed of a reasonable 

probability that it will occur’’) (quoting 

Faragher v. City of Boca Raton, 524 U.S. 

775, 805–06 (1998)); see also Vance v. 

Ball State Univ., 570 U.S. 421, 448–49 

(2013) (stating that the employer is 

liable for harassment if it failed to act 

reasonably to prevent the harassment). 

This Title VII obligation is separate from 

any obligation a recipient has under 

Title IX to address alleged conduct that 

meets the proposed definition of ‘‘sexbased harassment’’ under Title IX. If the 

alleged conduct also meets the proposed 

definition of ‘‘sex-based harassment’’ 

under Title IX, the recipient must use a 

process that satisfies the requirements 

set out in proposed § 106.45 and, if 

applicable proposed § 106.46. 

Unwelcome Conduct. The Department 

proposes retaining the requirement that 

the conduct in categories one and two 

of the definition of ‘‘sex-based 

harassment’’ must be unwelcome. 

Although the Department does not 

propose revising this requirement, the 

Department understands it is important 

to provide recipients with additional 

clarity on how to analyze whether 

conduct is unwelcome under the 

proposed regulations. Conduct would be 

unwelcome if a person did not request 

or invite it and regarded the conduct as 

undesirable or offensive. Acquiescence 

to the conduct or the failure to 

complain, resist, or object when the 

conduct was taking place would not 


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mean that the conduct was welcome, 

and the fact that a person may have 

accepted the conduct does not mean 

that they welcomed it. For example, a 

student may decide not to resist the 

sexual advances of another student out 

of fear, or a student may not object to 

a pattern of sexually harassing 

comments directed at the student by a 

group of fellow students out of concern 

that objections might cause the 

harassers to make more comments. On 

the other hand, if a student actively 

participates in sexual banter and 

discussions and gives no indication that 

they object, then that would generally 

support a conclusion that the conduct 

was not unwelcome, depending on the 

facts and circumstances. In addition, 

simply because a person willingly 

participated in the conduct on one 

occasion does not prevent that same 

conduct from being unwelcome on a 

subsequent occasion. Specific issues 

related to welcomeness may also arise if 

the person who engages in harassment 

is in a position of authority. For 

example, because a teacher has 

authority over the operation of their 

classroom, a student may decide not to 

object to a teacher’s sexually harassing 

comments during class; however, this 

does not mean that the conduct was 

welcome because, for example, the 

student may believe that any objections 

would be ineffective in stopping the 

harassment or may fear that by making 

objections they will be singled out for 

harassing comments or retaliation. 

Category One: Quid Pro Quo. 

The Department proposes generally 

maintaining the language in the first 

category of the definition of ‘‘sexual 

harassment’’ in the current regulations 

with revisions to state that in addition 

to an employee, an agent or other person 

authorized by the recipient to provide 

an aid, benefit, or service under the 

recipient’s education program or 

activity is also prohibited from engaging 

in the quid pro quo conduct described 

in the first category and that quid pro 

quo harassment may be explicit or 

implicit. 

In response to requests to broaden the 

scope of quid pro quo harassment to 

include persons not directly employed 

by the recipient, the Department 

explained in the preamble to the 2020 

amendments that ‘‘the quid pro quo 

harassment description is appropriately 

and sufficiently broad because it applies 

to all of a recipient’s employees, so that 

it includes situations where, for 

instance, a teacher, faculty member, or 

coach holds authority and control over 

a student’s success or failure in a class 

or extracurricular activity,’’ and 

‘‘decline[d] to expand the description to 

include non-employee students, 

volunteers, or others not deemed to be 

a recipient’s employee.’’ 85 FR 30148. 

The Department further stated that it 

was ‘‘persuaded by the Supreme Court’s 

rationale in Gebser that Title IX and 

Title VII differ with respect to statutory 

reliance on agency principles’’ and 

referenced the language in Gebser, 

noting that Title VII ‘‘explicitly defines 

‘employer’ to include ‘any agent,’’’ id. at 

30148, but ‘‘Title IX contains no 

comparable reference to an educational 

institution’s agents, and so does not 

expressly call for application of agency 

principles’’ id. at 30148 n.646 (quoting 

Gebser, 524 U.S. at 283). During the 

June 2021 Title IX Public Hearing and 

in listening sessions with stakeholders, 

OCR received similar requests to 

prohibit quid pro quo harassment by 

any person, not just employees. The 

Department reviewed these requests and 

now proposes to revise the scope of 

quid pro quo sex-based harassment to 

include an agent or other person 

authorized by the recipient to provide 

an aid, benefit, or service under the 

recipient’s education program or 

activity. The Department proposes this 

change to effectuate Title IX, consistent 

with the statutory language prohibiting 

a person from being excluded from 

participation in or denied the benefits of 

any education program or activity on 

the basis of sex. This proposed change 

is also consistent with the Department’s 

Title IX regulations regarding the 

provision of aid, benefit, or services, 

which have made clear since 1975 that 

a recipient is responsible for the 

nondiscriminatory provision of any aid, 

benefit, or service to a student and have 

not been limited to the provision of 

such aid, benefit, or services only by a 

recipient’s employees. 34 CFR 

106.31(b). 

The Department is mindful of the 

Supreme Court’s decision in Gebser, 

which the Department previously relied 

upon in declining to expand the 

description of quid pro quo harassment 

in response to comments received on 

the 2018 NPRM. Although the Court in 

Gebser rejected Title VII’s agency 

principles for the purpose of 

determining a school’s liability for 

monetary damages under Title IX, after 

revisiting this issue, the Department 

proposes that this is not the appropriate 

analysis for assessing the Department’s 

responsibility for the administrative 

enforcement of Title IX. Gebser, 524 

U.S. at 283. As explained in greater 

detail in the discussion of OCR’s 

Guidance and Supreme Court Precedent 

on Title IX’s Application to Sexual 

Harassment (Section II.B.1), the Court 

repeatedly and explicitly stated in 

Gebser and Davis that the liability 

standard it established was limited to 

private actions for monetary damages, 

not administrative enforcement action. 

See, e.g., Gebser, 524 U.S. at 283, 287; 

see also Davis, 526 U.S. at 633, 639–44, 

649–53. It was within this framework 

that the Court rejected Title VII’s agency 

principles for purposes of determining a 

school’s liability for monetary damages 

under Title IX. In contrast, the 

Department’s proposal to include agents 

or other persons authorized by the 

recipient to provide an aid, benefit, or 

service under the recipient’s education 

program or activity in the scope of quid 

pro quo sex-based harassment is not 

based on Title VII agency principles and 

is consistent with Title IX sexual 

harassment case law holding that 

‘‘someone in authority’’ may commit 

quid pro quo sexual harassment. See, 

e.g., Papelino v. Albany Coll. of 

Pharmacy Union Univ., 633 F.3d 81, 89 

(2d Cir. 2011); Willis v. Brown Univ., 

184 F.3d 20, 25 (1st Cir. 1999). 

Because determining whether a 

person has been authorized to provide 

aid, benefits, or services as part of a 

recipient’s education program or 

activity is fact-specific, the Department 

declines at this time to provide a 

definitive list of individuals who would 

qualify but provides examples below to 

assist a recipient in making this 

determination for purposes of quid pro 

quo harassment. For example, some 

recipients may rely on unpaid 

volunteers to coach interscholastic 

athletic teams or club sports teams 

offered by the recipient. Even though 

these volunteers are not employed 

directly by the recipient, unpaid 

volunteer coaches hold authority and 

control over a student’s participation or 

performance in an extracurricular 

activity offered by the recipient. As 

such, they would qualify as persons 

who are subject to the prohibition on 

quid pro quo harassment because they 

may properly be considered persons 

authorized by the recipient to provide 

aid, benefits, or services under the 

recipient’s education program or 

activity. Similarly, graduate students 

who teach their own course or serve as 

a teaching assistant and are responsible 

for providing instruction and assigning 

grades in a course (i.e., an aid, benefit, 

or services to students as part of a 

recipient’s education program or 

activity) but who are not employed 

directly by a recipient would also be 

subject to the prohibition on quid pro 

quo harassment. In addition, if a 

recipient contracts with persons or 


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organizations to provide benefits, 

services, or opportunities to students 

under the recipient’s education program 

or activity, those individuals could 

commit quid pro quo harassment. Other 

examples of persons who may be 

authorized by a recipient to provide aid, 

benefits, or services under the 

recipient’s education program or 

activity would include but are not 

limited to, persons who supervise 

internships or clinical experiences that 

are part of a student’s academic 

program, volunteers who regularly 

provide an aid, benefit or service under 

a recipient’s education program or 

activity, or board of trustees’ members 

who serve as unpaid volunteers. On the 

other hand, in the Department’s 

experience, students in positions of 

responsibility in an extracurricular 

activity, such as a team captain or club 

president, are generally not authorized 

by a recipient to provide aid, benefits, 

or services under the recipient’s 

education program or activity and 

would not come under this prohibition. 

The Department stated, in the 

preamble to the 2020 amendments, that 

quid pro quo harassment could include 

explicit and implicit conduct but did 

not expressly make this point in the text 

of the current regulations. The proposed 

revisions to the regulatory text would 

incorporate the principle the 

Department articulated in the preamble 

to the 2020 amendments that quid pro 

quo harassment should be interpreted 

‘‘broadly to encompass situations where 

the quid pro quo nature of the incident 

is implied from the circumstances’’ and 

that ‘‘quid pro quo harassment applies 

whether the ‘bargain’ proposed by the 

recipient’s employee is communicated 

expressly or impliedly.’’ 85 FR 30147 

(footnotes omitted). In addition, the 

Department proposes retaining the 

interpretation articulated in the 

preamble to the 2020 amendments that 

‘‘quid pro quo harassment does not 

depend on whether ‘the student resists 

and suffers the threatened harm or 

submits and avoids the threatened 

harm,’ ’’ to show that the student’s 

ability to participate in or benefit from 

the school’s program has been denied or 

limited, on the basis of sex in violation 

of the Title IX regulations. Id. at 30148 

n.645 (emphasis omitted) (quoting 2001 

Revised Sexual Harassment Guidance at 

5). 

Category Two: Hostile Environment 

Distinction between administrative 

enforcement and private lawsuits for 

monetary damages. In the 2020 

amendments, the Department adopted 

verbatim the formulation that the Davis 

Court used in the context of private 

lawsuits for monetary damages: 

‘‘unwelcome conduct that a reasonable 

person would determine is ‘so severe, 

pervasive, and objectively offensive’ 

that it effectively denies a person equal 

access to education.’’ Id. at 30036 

(quoting Davis, 526 U.S. at 650). OCR 

heard from a variety of stakeholders in 

connection with the June 2021 Title IX 

Public Hearing and in listening sessions 

regarding the current definition of 

‘‘sexual harassment.’’ In addition, 

stakeholders provided views on the 

current definition of ‘‘sexual 

harassment’’ during meetings held in 

2022 under Executive Order 12866. 

Some stakeholders supported the 

current definition while other 

stakeholders urged the return to the 

prior definition of ‘‘sexual harassment’’ 

(i.e., hostile environment) previously 

used in OCR’s administrative 

enforcement and expressed concern that 

the current narrower definition, which 

is based on case law related to private 

lawsuits for monetary damages, could 

leave some serious sexual misconduct 

unaddressed. These stakeholders also 

expressed concern about the 

inconsistency between the new, 

narrower definition in the 2020 

amendments and the longstanding, 

broader definition used in prior OCR 

guidance, Title VII case law, and EEOC 

guidance. These stakeholders 

encouraged the Department to take a 

more uniform approach to hostile 

environment harassment, noting that it 

is a concept developed though court 

decisions interpreting other Federal 

statutes prohibiting discrimination, 

including Title VII and Title VI. 

The Department reviewed its decision 

to use the standards applicable to 

private suits for monetary damages as 

the starting point for the standards used 

by OCR in its administrative 

enforcement of Title IX, including the 

Supreme Court’s standard for actionable 

sexual harassment under Title IX. The 

Department’s tentative view is that it is 

permitted to depart from the standards 

set out by the Court for actionable 

sexual harassment under Title IX 

because the Court expressly 

acknowledged the power of Federal 

agencies, such as the Department, to 

‘‘promulgate and enforce requirements 

that effectuate [Title IX’s] 

nondiscrimination mandate,’’ even in 

circumstances that would not give rise 

to a claim for monetary damages. 

Gebser, 524 U.S. at 292. Such a view is 

consistent with how the Court has 

interpreted the Department’s broad 

regulatory authority in other Title IX 

contexts. For example, the Court also 

noted that ‘‘the Department of 

Education could enforce the 

requirement administratively’’ that a 

school ‘‘promulgate a grievance 

procedure’’ even though the failure to 

do so ‘‘does not itself constitute 

‘discrimination’ under Title IX.’’ Id. 

Similarly, the Court has explained that 

the Department may require schools to 

sign assurances of compliance under 

Title IX, even though the failure to sign 

such assurances would not itself 

constitute sex discrimination by the 

recipient. See Grove City Coll., 465 U.S. 

at 574. 

After considering the issues and 

reweighing the facts and circumstances, 

including the views expressed by a 

variety of stakeholders, the Department 

proposes retaining the term 

‘‘unwelcome conduct’’ from the 2020 

amendments, but replacing the 

definition of ‘‘sexual harassment’’ from 

Davis in the current regulations with the 

hostile environment framework to 

describe when sex-based harassment in 

category two is prohibited under Title 

IX. 

The proposed regulations thus 

provide that sex-based harassment in 

category two would cover unwelcome 

sex-based conduct that is sufficiently 

severe or pervasive that, based on the 

totality of the circumstances and 

evaluated subjectively and objectively, 

it denies or limits a person’s ability to 

participate in or benefit from the 

recipient’s education program or 

activity (i.e., the conduct creates a 

hostile environment). 

In the preamble to the 2020 

amendments, the Department 

acknowledged that it is not legally 

required to adopt the Gebser/Davis 

framework for sexual harassment, but 

noted that the Supreme Court did not 

prohibit the Department from doing so 

and chose to adopt the Davis standard 

for actionable sexual harassment in part 

because ‘‘aligning the Title IX sexual 

harassment definition in administrative 

enforcement and private litigation 

contexts provides clear, consistent 

expectations for recipients.’’ 85 FR 

30149. 

The Department’s tentative view is 

that defining ‘‘sex-based harassment’’ in 

category two using the hostile 

environment framework will enable the 

Department to enforce Title IX’s 

nondiscrimination mandate and provide 

more effective protection against sex 

discrimination in a recipient’s 

education program or activity because 

the definition of ‘‘sex-based 

harassment’’ covers a broader range of 

sexual misconduct than that covered 

under the definition of ‘‘sexual 

harassment’’ in the current regulations. 

The Department’s tentative view is also 


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that the hostile environment framework 

appropriately captures the key concepts 

articulated by the Court in Davis and 

protects the First Amendment rights and 

interests of students and employees. 

The Department acknowledges that 

revising the definition of ‘‘sex-based 

harassment’’ in category two using the 

hostile environment framework may 

create additional work for recipients 

because they will be subject to a 

different standard in the administrative 

enforcement context than they are in the 

context of private suits for monetary 

damages and because the definition may 

require recipients to respond to a 

broader range of conduct, but Title IX’s 

plain language prohibits any 

discrimination on the basis of sex in a 

recipient’s education program or 

activity and the Department proposes 

that in the administrative enforcement 

context Title IX must function as a 

strong and comprehensive measure to 

effectively address sex discrimination. 

See generally 118 Cong. Rec. 5803–5812 

(1972) (statement of Sen. Bayh). 

Hostile environment analysis. The 

proposed revisions to the second 

category of sex-based harassment would 

require that the unwelcome sex-based 

conduct be sufficiently severe or 

pervasive that, based on the totality of 

the circumstances and evaluated 

subjectively and objectively, it denies or 

limits a person’s ability to participate in 

or benefit from the recipient’s education 

program or activity. Requiring the 

unwelcome sex-based conduct to be 

evaluated subjectively and objectively 

and based on the totality of the 

circumstances is consistent with the 

analysis discussed by the Department in 

the preamble to the 2020 amendments, 

which stated that ‘‘whether harassing 

conduct is ‘objectively offensive’ must 

be evaluated under a reasonable person 

standard, as a reasonable person in the 

complainant’s position’’ and also 

required that the conduct be unwelcome 

from a subjective perspective. 85 FR 

30167. This is also consistent with 

Davis and relevant Title VII Supreme 

Court cases. See, e.g., Davis, 526 U.S. at 

650 (conduct must be ‘‘objectively 

offensive’’ to trigger liability for money 

damages); Harris v. Forklift Sys., 510 

U.S. 17, 21–22 (1993) (explaining that 

‘‘if the victim does not subjectively 

perceive the environment to be abusive, 

the conduct has not actually altered the 

conditions of the victim’s employment, 

and there is no Title VII violation’’ and 

that a ‘‘reasonable person’’ standard 

should be used to determine whether 

sexual conduct constituted harassment); 

Oncale, 523 U.S. at 81 (‘‘[T]he objective 

severity of harassment should be judged 

from the perspective of a reasonable 

person in the [complainant’s] position, 

considering ‘all the circumstances.’ ’’ 

(quoting Harris, 510 U.S. at 23)). 

The Department’s proposal to require 

that the conduct be ‘‘severe or 

pervasive’’ as opposed to ‘‘severe, 

persistent, or pervasive’’ is consistent 

with the Court’s opinion in Davis. 

Although the Davis Court described the 

conduct at issue in the case as 

‘‘persistent,’’ that term was not part of 

the Court’s analysis or the definition 

adopted by the Court. See Davis, 526 

U.S. at 650–53 (describing damages 

liability standard when funding 

recipient is deliberately indifferent to 

harassment that is ‘‘severe, pervasive, 

and objectively offensive’’). 

Title IX prohibits sex-based 

harassment that denies or limits a 

person’s ability to participate in or 

benefit from the education program or 

activity. The Department explained in 

the preamble to the 2020 amendments 

that the unwelcome conduct under 

category two must ‘‘effectively den[y] a 

person equal access to the recipient’s 

education program or activity’’ for two 

reasons: first, because that was the 

language used by the Court in Davis; 

and second, because the Department 

believed that it was the ‘‘equivalent of 

a violation of Title IX’s prohibition on 

exclusion from participation, denial of 

benefits, and/or subjection to 

discrimination.’’ 85 FR 30156–57. After 

considering the issue and reweighing 

the facts and circumstances, the 

Department proposes revising this 

language to encompass sex-based 

conduct that denies or limits a person’s 

ability to participate in or benefit from 

the recipient’s education program or 

activity. The Department’s current 

position is that this language more 

appropriately captures the full scope of 

Title IX’s nondiscrimination mandate. 

The language of the statute, ‘‘denied the 

benefits,’’ does not require otherwise 

and, to the contrary, supports the 

Department’s proposed revision because 

a limitation on equal access constitutes 

a denial of benefits. 20 U.S.C. 1681(a). 

For example, Title IX prohibits a 

recipient from awarding female students 

half as many credits as male students for 

taking the same class, even though the 

recipient has not completely denied 

female students the credit benefits of 

taking the class. In this way, a recipient 

need not completely deny, by policy or 

effect, a student’s equal access to its 

education program or activity based on 

sex before it denies a student the 

benefits of its program or activity, 

thereby violating Title IX. 

The Department’s proposed regulatory 

language is consistent in many respects 

with the principles articulated in the 

preamble to the 2020 amendments, 

which explained the variety of 

situations that would be covered under 

the current regulations. There the 

Department explained that a 

complainant does not need to have been 

‘‘entirely, physically excluded from 

educational opportunities,’’ 85 FR 

30169, and ‘‘no specific type of reaction 

to the alleged sexual harassment is 

necessary to conclude’’ that the 

complainant was effectively denied 

equal access to the recipient’s education 

program or activity, id. at 30170. The 

Department also explained that 

‘‘[c]ommenters’ examples of a third 

grader who starts bed-wetting or crying 

at night due to sexual harassment, or a 

high school wrestler who quits the team 

but carries on with other school 

activities following sexual harassment, 

likely constitute examples of denial to 

those complainants of ‘equal’ access to 

educational opportunities even without 

constituting a total exclusion or denial 

of an education.’’ Id. at 30170. These 

examples would also satisfy the 

requirement in the proposed regulations 

that the harassment must deny or limit 

the complainant’s ability to participate 

in or benefit from the recipient’s 

education program or activity in order 

to be covered. The Department also 

noted in the preamble to the 2020 

amendments that ‘‘signs of enduring 

unequal educational access due to . . . 

harassment may include, as commenters 

suggest, skipping class to avoid a 

harasser, a decline in a student’s grade 

point average, or having difficulty 

concentrating in class.’’ Id. These 

examples would also constitute signs of 

a denial or limitation of a complainant’s 

ability to participate in or benefit from 

the recipient’s education program or 

activity under the proposed regulations. 

Additional information and examples 

related to this element of the definition 

are provided in the discussion of factors 

that a recipient must consider when 

determining if a hostile environment 

has been created. 

Consistency with the First 

Amendment. In the preamble to the 

2020 amendments, the Department 

wrote that the ‘‘Davis definition of 

sexual harassment as ‘severe, pervasive, 

and objectively offensive’ comports with 

First Amendment protections,’’ while 

the definition articulated in prior 

Department guidance ‘‘has led to 

infringement of rights of free speech and 

academic freedom of students and 

faculty.’’ Id. at 30036 n.88. After 

considering these issues, the 

Department’s tentative view is that the 

proposed scope of conduct that would 


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constitute a hostile environment under 

the definition of ‘‘sex-based 

harassment’’ in proposed § 106.2 would 

sufficiently protect the constitutional 

rights and interests of students and 

employees. It would do so by requiring 

not only that the prohibited conduct be 

sufficiently severe or pervasive that, 

based on the totality of the 

circumstances and evaluated 

subjectively and objectively, it creates a 

hostile environment, but also that the 

conduct be based on sex and occur 

under the recipient’s education program 

or activity. Title IX protects individuals 

from sex discrimination and does not 

regulate the content of speech as such. 

OCR has expressed this position 

repeatedly in discussing Title IX in 

prior guidance. See 2001 Revised Sexual 

Harassment Guidance at 22; 2003 First 

Amendment Dear Colleague Letter; 2014 

Q&A on Sexual Violence at 43–44. The 

Department emphasizes that in cases of 

alleged sex-based harassment, the 

protections of the First Amendment 

must be considered if, for example, 

issues of speech or expression are 

involved, including academic freedom. 

Students, employees, and third parties 

retain their First Amendment rights, and 

the Department’s proposed regulations 

would not infringe these rights. The 

Department further notes that current 

§ 106.6(d), to which the Department is 

not proposing any changes, states that 

nothing in the Title IX regulations 

requires a recipient to ‘‘[r]estrict any 

rights that would otherwise be protected 

from government action by the First 

Amendment of the U.S. Constitution.’’ 

34 CFR 106.6(d). 

Consistent with the proposed hostile 

environment category of sex-based 

harassment discussed above, the 

offensiveness of a particular expression 

as perceived by some persons, standing 

alone, would not be a legally sufficient 

basis to establish a hostile environment 

under Title IX. In addition, a recipient 

must formulate, interpret, and apply its 

rules in a manner that respects the legal 

rights of students and employees when 

taking action to end sex-based 

harassment that creates a hostile 

environment. For instance, although the 

First Amendment may prohibit a 

recipient from restricting the rights of 

students to express opinions about one 

sex that may be considered derogatory, 

the recipient can affirm its own 

commitment to nondiscrimination 

based on sex and take steps to ensure 

that competing views are heard. The age 

of the students involved and the 

location or forum in which such 

opinions are expressed may affect the 

actions a recipient can take consistent 

with the First Amendment. 

Alignment with Title VII. Although 

courts often rely on interpretations of 

Title VII to inform interpretations of 

Title IX, in the preamble to the 2020 

amendments the Department explained 

that there are differences between Title 

IX ‘‘and workplace policies that may 

exist in the corporate world.’’ 85 FR 

30199; see also Franklin, 503 U.S. at 75; 

Jennings, 482 F.3d at 695; Frazier, 276 

F.3d at 66; Gossett, 245 F.3d at 1176. 

The Department also noted that Title 

VII’s prohibition on sexual harassment 

differs from that under Title IX in the 

2020 amendments and recipients that 

are subject to both Title VII and Title IX 

must comply with both sets of 

obligations. 85 FR 30440. The 

Department further noted that ‘‘[c]ourts 

impose different requirements under 

Title VII and Title IX and recipients 

comply with case law that interprets 

Title VII and Title IX differently.’’ Id. at 

30443. The Department recognizes the 

differences between educational and 

workplace environments and that in the 

context of private suits for monetary 

damages under Title IX, the Supreme 

Court has applied a different definition 

of ‘‘sexual harassment’’ under Title IX 

than it has in the Title VII context. Id. 

at 30199, 30440, 30443. The Department 

also heard from stakeholders, including 

recipients, that the differences between 

the definitions of ‘‘sexual harassment’’ 

in OCR’s administrative enforcement 

context and the Title VII context created 

confusion for employees and requesting 

alignment between the Title IX and Title 

VII definitions, if possible, for sex-based 

harassment under the recipient’s 

education program or activity. Although 

these stakeholders acknowledged that 

different grievance procedures may be 

appropriate for resolving student and 

employee complaints of sex-based 

harassment given the varying rights of 

students and employees, they 

nonetheless expressed a desire for 

consistency in the definition of ‘‘sexbased harassment’’ under Title IX and 

Title VII. 

After considering this issue, including 

the concerns expressed by stakeholders, 

the Department’s tentative view is that, 

while not required to do so, it is 

appropriate to more closely align the 

hostile environment category of ‘‘sexbased harassment’’ in the context of 

OCR’s administrative enforcement of 

Title IX with how hostile environment 

sexual harassment is defined by courts 

and the EEOC under Title VII in the 

employment context given that 

recipients must comply with both laws 

and both Title VII and Title IX cover 

employees. The proposed hostile 

environment framework under Title IX 

is more similar to the definition of 

‘‘hostile environment’’ under Title VII 

than the definition of ‘‘sexual 

harassment’’ under the current Title IX 

regulations. The Department’s tentative 

view is that this alignment will better 

facilitate recipients’ ability to comply 

with their obligations under the 

Department’s proposed Title IX 

regulations, while also recognizing 

recipients’ obligations under Title VII. 

Also, and most fundamentally as 

discussed above, the proposed hostile 

environment framework will better 

enable the Department to implement 

Title IX’s prohibition on sex 

discrimination. In addition, as 

explained in the discussion of hostile 

environment factors, whether 

unwelcome sex-based conduct has 

created a hostile environment is a factspecific determination based on the 

totality of the circumstances, which 

enables recipients to take into 

consideration the characteristics of the 

parties involved, including whether 

they are students or employees, in 

making the determination. Although the 

Department proposes more closely 

aligning the definition of ‘‘sex-based 

harassment’’ under Title IX with the 

definition of ‘‘sexual harassment’’ under 

Title VII, a recipient must still be able 

to make individualized determinations 

whether certain conduct constitutes 

prohibited sex-based harassment and 

may conclude that certain conduct 

between employees is not prohibited 

while the same conduct between 

students is prohibited and vice versa. 

As explained in the discussion of the 

Framework for Grievance Procedures for 

Complaints of Sex Discrimination 

(Section II.F), the Department continues 

to recognize there are differences 

between recipients’ relationships with 

their employees and their students. 

However, the Department does not view 

these differences as relevant for the 

analysis of the hostile environment 

category of sex-based harassment in 

OCR’s administrative enforcement of 

Title IX, and the Department thus 

proposes that the same analysis of what 

constitutes hostile environment sexbased harassment should apply 

regardless of whether the persons 

involved in the sex-based harassment 

are students or employees. The 

Department’s tentative position is that 

although a recipient’s grievance 

procedures may appropriately vary to 

ensure an equitable response to 

complaints involving students and those 

involving only employees in the 

postsecondary setting, particularly in 

light of Title VII’s protections for 


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employees, there is no similar 

justification for variation in the analysis 

of what constitutes hostile environment 

sex-based harassment that applies to 

students and employees. In addition, as 

explained in the discussion of the 

hostile environment factors, the hostile 

environment analysis requires the 

recipient to examine the alleged facts 

from the position of a reasonable person 

in the complainant’s position, 

considering the surrounding 

circumstances, and make an 

individualized determination whether 

the unwelcome sex-based conduct 

created a hostile environment based on 

the totality of the circumstances, 

including the age and roles of the 

parties. The Department recognizes that, 

particularly in a secondary or 

postsecondary education program or 

activity, the student environment may 

differ from the environment of teachers, 

faculty, and staff in ways that may be 

relevant for the recipient’s fact-specific 

analysis of whether a hostile 

environment was created. For additional 

information regarding the differences 

between recipients’ relationships with 

their employees and their students and 

the applicable procedural requirements 

to complaints of sex-based harassment, 

see the discussion of the Framework for 

Grievance Procedures for Complaints of 

Sex Discrimination (Section II.F). The 

Department also notes that in addition 

to more closely aligning with how 

hostile environment sexual harassment 

is defined by courts and the EEOC 

under Title VII, the proposed hostile 

environment framework in category two 

of the definition of ‘‘sex-based 

harassment’’ would also more closely 

align with the definition of ‘‘hostile 

environment harassment’’ in the context 

of enforcement of the Fair Housing Act 

by the U.S. Department of Housing and 

Urban Development. 24 CFR 

100.600(a)(2). The Department’s 

tentative view is that although the 

Department is not required to align its 

analysis of what constitutes a hostile 

environment under Title IX with the 

definition of ‘‘hostile environment 

harassment’’ under the FHA, closer 

alignment of the two definitions would 

assist recipients given that the FHA 

applies to campus housing for students, 

faculty, or staff, and those institutions 

that are subject to the FHA and receive 

Federal funding from the Department 

must also comply with the Department’s 

Title IX regulations. 

Alignment with other Federal civil 

rights laws enforced by OCR. The 

Department’s proposed regulations 

would also more closely align the 

hostile environment analysis under 

Title IX with how OCR defines 

‘‘harassment’’ based on race, color, 

national origin, or disability for 

administrative enforcement purposes, 

which would provide increased clarity 

to recipients. See Notice of Investigative 

Guidance, Racial Incidents and 

Harassment Against Students at 

Educational Institutions, 59 FR 11448, 

11449–50 (Mar. 10, 1994) (1994 Racial 

Harassment Guidance), https://

www.govinfo.gov/content/pkg/FR-1994- 

03-10/pdf/FR-1994-03-10.pdf (also 

available at https://www2.ed.gov/about/ 

offices/list/ocr/docs/race394.html) 

(explaining that a hostile environment 

under Title VI includes racial 

harassment ‘‘that is sufficiently severe, 

pervasive or persistent so as to interfere 

with or limit the ability of an individual 

to participate in or benefit from the 

services, activities or privileges 

provided by a recipient’’); U.S. Dep’t of 

Educ., Office for Civil Rights, Dear 

Colleague Letter: Prohibited Disability 

Harassment (July 25, 2000), https://

www.ed.gov/ocr/docs/ 

disabharassltr.html (‘‘When harassing 

conduct is sufficiently severe, 

persistent, or pervasive that it creates a 

hostile environment, it can violate a 

student’s rights under the Section 504 

and Title II regulations.’’); 2010 Dear 

Colleague Letter on Harassment and 

Bullying at 1–2 (stating that harassment 

on the basis of race, color, national 

origin, sex, or disability ‘‘creates a 

hostile environment when the conduct 

is sufficiently severe, pervasive, or 

persistent so as to interfere with or limit 

a student’s ability to participate in or 

benefit from the services, activities, or 

opportunities offered by the school’’). 

The Department is not proposing to 

simply import a definition of ‘‘hostile 

environment’’ from the context of 

harassment based on race, color, 

national origin, or disability. As 

explained in the preamble to the 2020 

amendments, the Department is not 

required under the Administrative 

Procedure Act ‘‘to devise identical or 

even similar rules to eliminate 

discrimination on the bases of sex, race, 

or disability (or of any other kind).’’ 85 

FR 30528. The Department’s tentative 

view, however, is that there is value for 

recipients, students, and others in 

incorporating similar concepts, to the 

extent possible, into the analyses of 

hostile environment harassment under 

all of the civil rights laws that the 

Department enforces. 

Factors that a recipient must consider 

when determining if a hostile 

environment has been created. Whether 

a hostile environment has been created 

is a fact-specific inquiry and requires 

analyzing the conduct and its effect on 

the complainant to draw distinctions 

between conduct that creates a hostile 

environment and conduct that does not 

rise to that level. A hostile environment 

may manifest itself in different ways for 

different complainants. In view of this 

fact-specificity, the Department 

proposes adding language to category 

two of the definition of ‘‘sex-based 

harassment’’ that would identify factors 

for determining whether the unwelcome 

conduct created a hostile environment. 

Category two of the proposed definition 

of ‘‘sex-based harassment’’ would set 

out the following factors to consider 

when determining whether a hostile 

environment based on sex exists: (i) the 

degree to which the conduct affected the 

complainant’s ability to access the 

recipient’s education program or 

activity; (ii) the type, frequency, and 

duration of the conduct; (iii) the parties’ 

ages, roles within the recipient’s 

education program or activity, previous 

interactions, and other factors about 

each party that may be relevant to 

evaluating the alleged unwelcome 

conduct; (iv) the location of the 

conduct, the context in which the 

conduct occurred, and the control the 

recipient has over the respondent; and 

(v) other sex-based harassment in the 

recipient’s education program or 

activity. A recipient must consider 

whether each of these factors applies in 

determining whether a hostile 

environment based on sex exists but 

may determine that one or more factors 

is not relevant to a particular set of facts. 

Also, the Department does not intend 

that the specific hostile environment 

factors listed in proposed § 106.2 would 

be exhaustive, as evidenced by the use 

of the word ‘‘includes.’’ A recipient 

would not be prohibited from 

considering additional relevant factors 

to determine whether a hostile 

environment has been created. Below 

the Department discusses the analysis 

under each factor in greater detail. 

Although the facts in the examples 

below are not necessarily sufficient to 

demonstrate a sex-based hostile 

environment (i.e., a fuller, fact-specific 

analysis would be required), they 

illustrate how recipients might consider 

the relevant factors in determining 

whether a hostile environment has been 

created. 

(1) The degree to which the conduct 

affected the complainant’s ability to 

access the recipient’s education 

program or activity. A hostile 

environment may manifest itself in 

different ways for different 

complainants. In some cases, a 

complainant’s grades may go down or 


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the complainant may feel forced to 

withdraw from school because of the 

harassing behavior. A complainant may 

also suffer physical injuries or mental or 

emotional distress. Other complainants 

may be able to maintain their grades or 

remain in a program or activity, but it 

may be more difficult for them to do so 

because of the harassment. For example, 

a student may remain in class while 

enduring a teacher’s repeated hostile 

comments about the complainant’s 

pregnancy, but they may be anxious 

throughout the day and have difficulty 

concentrating in class. Similarly, some 

complainants may be able to remain on 

a sports team, despite performing less 

successfully or with greater effort than 

previously due to humiliation and anger 

caused by repeated, unwelcome sexual 

advances from team members. A hostile 

environment can occur even if the 

harassment is not targeted specifically at 

the individual complainant. For 

example, if a group of students or a 

teacher regularly directs sexual 

comments toward a student, a sex-based 

hostile environment may be created for 

others in the classroom. A hostile 

environment can also arise when sexbased harassment occurring outside of a 

recipient’s education program or 

activity creates a sex-based hostile 

environment within the recipient’s 

education program or activity. For 

example, if a student is sexually 

assaulted by a fellow student while 

participating in a travel soccer program 

not sponsored by the school, the student 

who was assaulted may be subject to a 

sex-based hostile environment while at 

school as a result of that sexual assault 

when the student who perpetrated the 

sexual assault and his friends intimidate 

and mock the student who was sexually 

assaulted, which causes the student 

who was sexually assaulted to skip 

classes to avoid interactions with the 

other student and his friends. 

(2) The type, frequency, and duration 

of the conduct. The more severe or 

pervasive, the conduct is, the more 

likely it is to create a hostile 

environment. For instance, if a 

complainant is taunted repeatedly by 

one or more students about not 

conforming to sex stereotypes because 

he wears nail polish and has long hair, 

the complainant may experience a 

hostile environment based on sex, 

particularly if the conduct has been 

going on for a period of weeks or takes 

place throughout the school or if the 

taunts are made by a number of 

students. The more severe the conduct, 

the less the need to show a repetitive 

series of incidents; this is particularly 

true if the harassment is physical. For 

example, a single incident of severe 

physical violence targeting the above 

student would also likely create a 

hostile environment for that student. 

The Department notes that a single 

incident of sexual assault, stalking, 

dating violence, or domestic violence as 

described in category three of the 

proposed definition of ‘‘sex-based 

harassment’’ (and under the current 

regulations) would constitute prohibited 

sex-based harassment with no further 

showing necessary to demonstrate that a 

hostile environment exists. These 

examples are not exhaustive. On the 

other hand, conduct would not likely 

create a hostile environment if the 

recipient determines that the conduct 

occurs infrequently or is not objectively 

and subjectively offensive, such as a 

one-off comment by a student’s friend 

that she was acting ‘‘girly’’ or ‘‘like a 

boy.’’ Similarly, because students may 

date one another, a single request for a 

date or a gift of flowers from one student 

to another, for example, even if 

unwelcome, generally would not create 

a hostile environment if the request was 

infrequent. There may be circumstances, 

however, in which repeated unwelcome 

requests for dates or similar conduct 

could create a hostile environment, 

especially if a person, whose requests 

for dates have been refused previously, 

continues requesting dates from the 

same person in an intimidating, 

threatening, or repetitive manner. 

Depending on the facts and 

circumstances, such conduct could also 

constitute stalking under category three 

of the proposed definition of ‘‘sex-based 

harassment.’’ It would be the recipient’s 

responsibility to determine whether the 

conduct is severe or pervasive. 

(3) The parties’ ages, roles within the 

recipient’s education program or 

activity, previous interactions, and other 

factors about each party that may be 

relevant to evaluating the alleged 

unwelcome conduct. The parties’ ages 

and roles may be especially relevant in 

cases involving allegations of sex-based 

harassment of a student by a school 

employee. For example, due to the level 

of control a professor, teacher, or coach 

has over students, harassing conduct by 

that person toward a student is more 

likely to create a hostile environment 

than similar conduct by another 

student. This factor would also involve 

consideration of any prior relationships 

or interaction between the parties, 

subject to the limitations in proposed 

§ 106.45(b)(7)(iii), and other factors such 

as how often the parties are required to 

interact with each other on a regular 

basis. The parties’ previous interactions 

and other factors about each party may 

also be particularly relevant when 

considering allegations that involve 

conduct that originated outside of the 

recipient’s education program or 

activity or outside of the United States. 

For example, if a student was assaulted 

by a peer in a study abroad program and 

alleges that a hostile environment exists 

when both students return to campus, 

the recipient should consider the 

parties’ previous interactions to fully 

address any hostile environment within 

its education program and activity. For 

additional discussion of conduct that 

originated outside of the recipient’s 

education program or activity or outside 

the United States see the discussion of 

proposed § 106.11. 

(4) The location of the conduct, the 

context in which the conduct occurred, 

and the control the recipient has over 

the respondent. Harassing conduct that 

occurs on a school bus may be more 

intimidating than similar conduct on a 

school playground, for example, 

because the restricted area makes it 

impossible for students to avoid their 

harassers. Harassing conduct that occurs 

in a personal or secluded area, such as 

a dorm room or residence hall, can have 

a greater effect (e.g., be experienced as 

more threatening) than would similar 

conduct in a more public area. On the 

other hand, harassing conduct that 

occurs in a more public space may be 

more humiliating to the person being 

targeted. Even when harassing conduct 

occurs outside of the recipient’s 

education program or activity, the 

location and context of that conduct, 

and whether or not the recipient has 

control over the respondent, are relevant 

to evaluating whether a hostile 

environment based on sex exists within 

the recipient’s education program or 

activity. Recipients should be aware that 

although a recipient’s control over a 

respondent is relevant to evaluating 

whether a hostile environment based on 

sex exists when the harassing conduct 

occurs outside of the recipient’s 

education program or activity, the 

analysis is different when the harassing 

conduct occurred in a recipient’s 

education program or activity. In that 

context, a hostile environment may exist 

regardless of whether the recipient has 

control over the respondent, and the 

recipient would be required to meet its 

obligations under proposed § 106.44. 

The amount of control that a recipient 

has over a respondent is relevant only 

to the extent it may impact the scope of 

the recipient’s response. For example, if 

a non-affiliated third party sexually 

assaults a student on campus, the 

recipient would be able to provide the 

student with supportive measures and 


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5The Department notes that VAWA 2022 does 

not take effect until October 1, 2022, but chooses 

to include definitions from VAWA 2022 in these 

proposed regulations to provide clarity for 

recipients because it will be in effect when the final 

regulations are published. 

could issue a no-trespass order against 

the non-affiliated third party, if it knows 

that person’s identity, even if the 

recipient otherwise lacks control over 

the person. 

(5) Other sex-based harassment in the 

recipient’s education program or 

activity. A series of harassing incidents 

in the recipient’s education program or 

activity could—taken together—create a 

hostile environment for the targeted 

student, even if each incident by itself 

would not. For example, if a student’s 

peers repeatedly denigrate a student as 

‘‘girly’’ over a period of weeks and the 

student reports that the treatment is 

causing him distress and interfering 

with his ability to concentrate in class, 

the recipient would have an obligation 

to determine whether a hostile 

environment based on sex exists. Even 

if infrequent or inconsistent incidents 

may not be sufficiently serious to create 

a hostile environment, that same 

treatment repeated by different students 

in each class throughout the day may do 

so. 

Category Three: Clery Act 

The current regulations incorporate 

the statutory definitions of ‘‘sexual 

assault’’ from the Clery Act and ‘‘dating 

violence,’’ ‘‘domestic violence,’’ and 

‘‘stalking’’ from the Violence Against 

Women Reauthorization Act of 2013 

through cross-references to those 

statutes. VAWA 2022 renumbered the 

definitions of ‘‘dating violence’’ and 

‘‘stalking’’ and renumbered and made 

substantive changes to the definition of 

‘‘domestic violence.’’ Public Law 117– 

103.5 The definition of ‘‘sexual assault’’ 

in the Clery Act remains unchanged. 

The Department proposes to include 

in the proposed definition of ‘‘sex-based 

harassment’’ (§ 106.2) the text of the 

definitions of ‘‘sexual assault’’ in the 

Clery Act at 20 U.S.C. 1092(f)(6)(A)(v), 

‘‘dating violence’’ in VAWA 2022 at 34 

U.S.C. 12291(a)(11), and ‘‘stalking’’ in 

VAWA 2022 at 34 U.S.C. 12291(a)(36), 

instead of merely including crossreferences to the applicable provisions 

in VAWA 2013 and the Clery Act. In 

addition, the Department proposes 

explicitly setting out how ‘‘domestic 

violence’’ would be defined by 

incorporating relevant language from 

the definition of ‘‘domestic violence’’ in 

VAWA 2022 at 34 U.S.C. 12291(a)(12). 

The Department’s proposed definition 

of ‘‘domestic violence’’ would not 

include all of the language from the 

definition of ‘‘domestic violence’’ in 

VAWA 2022 because in the 

Department’s current view, some of the 

VAWA 2022 definition of ‘‘domestic 

violence’’ is not applicable to Title IX. 

The Department, therefore, proposes 

including the specific portions of the 

VAWA 2022 definition of ‘‘domestic 

violence’’ that are applicable to Title IX 

to avoid confusion given the expanded 

definition in the VAWA 2022 

reauthorization, which added ‘‘in the 

case of victim services, includes the use 

or attempted use of physical abuse or 

sexual abuse, or a pattern of any 

coercive behavior committed, enables or 

solicited to gain or maintain power and 

control over a victim, including verbal, 

psychological, economic, or 

technological abuse that may or may not 

constitute criminal behavior.’’ However, 

omitting this language does not create a 

substantive change to the VAWA 2022 

definition of ‘‘domestic violence’’ for 

Title IX purposes. The Department also 

does not propose any substantive 

changes to the content of the definitions 

of ‘‘sexual assault,’’ ‘‘dating violence,’’ 

and ‘‘stalking.’’ The definitions of those 

terms are the same as the definitions 

that were incorporated by crossreference to the Clery Act and VAWA 

2013 in the definition of ‘‘sexual 

harassment’’ in the current regulations. 

The Department’s current position is 

that including the language from the 

statutory definitions themselves in the 

proposed definition of ‘‘sex-based 

harassment’’ as opposed to including 

cross-references to the Clery Act and 

VAWA will be helpful for recipients by 

making it clear how these terms are 

defined for purposes of Title IX. 

During the June 2021 Title IX Public 

Hearing and in listening sessions, OCR 

heard from stakeholders that there has 

been some confusion regarding the 

reference in the current Title IX 

regulations to the Clery Act’s statutory 

definition of sexual assault. The 

Department similarly heard about this 

confusion during meetings held in 2022 

under Executive Order 12866. 

Specifically, stakeholders conveyed 

confusion because the Clery Act’s 

statutory definition of ‘‘sexual assault,’’ 

which is referenced in the Title IX 

regulations, refers to forcible and nonforcible sex offenses, but the FBI has 

retired those terms and those terms are 

not included in the definition of ‘‘sexual 

assault’’ in the Department’s Clery Act 

regulations. The Department notes that 

to dispel this confusion, all recipients 

may find it useful to consult the 

Department’s Clery Act regulations, 

discussed below, for additional 

information about the Clery Act’s 

definition of ‘‘sexual assault,’’ although 

only postsecondary institutions are 

subject to the Clery Act. 

As explained above, current and 

proposed Title IX regulations adopt the 

Clery Act’s statutory definition of the 

term ‘‘sexual assault,’’ 20 U.S.C. 

1092(f)(6)(A)(v), which that Act defines 

as ‘‘an offense classified as a forcible or 

nonforcible sex offense under the 

uniform crime reporting [UCR] system 

of the Federal Bureau of Investigation 

[FBI].’’ The FBI UCR previously 

consisted of two crime reporting 

systems: the Summary Reporting 

System (SRS) and the National IncidentBased Reporting System (NIBRS). The 

current Clery Act regulations, 34 CFR 

668.46(a) and 34 CFR part 668, subpart 

D, appendix A, define sexual assault as 

an offense that meets the definition of 

rape, fondling, incest, or statutory rape 

as used in the FBI’s UCR program and 

direct recipients to look to the SRS for 

a definition of ‘‘rape’’ and to the NIBRS 

for definitions of ‘‘fondling,’’ ‘‘statutory 

rape,’’ and ‘‘incest’’ as the offenses 

falling under sexual assault. The 

Department notes that although the FBI 

retired the SRS and transitioned to 

using only the NIBRS in January 2021, 

the Clery Act regulations, including 

those regulations’ definition of ‘‘sexual 

assault,’’ remain in effect and may be 

useful for recipients to consult. The 

Department stated in the preamble to 

the 2014 Clery Act NPRM that the 

definition of ‘‘sexual assault’’ in the 

Clery Act regulations reflects the 

definition of ‘‘sexual assault’’ in the 

Clery Act statute, but the Clery Act 

regulations remove ‘‘references to 

forcible and nonforcible sex offenses 

and identify the sex offenses that sexual 

assault would include to make the 

definition clear.’’ 79 FR 35418, 35427 

(June 20, 2014). The Department 

explained that it was removing the 

terms ‘‘forcible’’ and ‘‘nonforcible’’ from 

the definition of ‘‘sexual assault’’ ‘‘to 

combat the suggestion that a sex offense 

has not occurred if physical force was 

not used.’’ Id. at 35435. 

Section 106.2 Definition of ‘‘Relevant’’ 

Current regulations: None. The term 

‘‘relevant’’ is not defined in the existing 

Title IX regulations. The Department 

stated in the preamble to the 2020 

amendments that ‘‘the ordinary meaning 

of the word should be understood and 

applied.’’ 85 FR 30247 n.1018. In 

addition, current § 106.45(b)(6)(i) and 

(ii) states that ‘‘[q]uestions and evidence 

about the complainant’s sexual 

predisposition or prior sexual behavior 

are not relevant, unless such questions 

and evidence about the complainant’s 

prior sexual behavior are offered to 


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prove that someone other than the 

respondent committed the conduct 

alleged by the complainant, or if the 

questions and evidence concern specific 

incidents of the complainant’s prior 

sexual behavior with respect to the 

respondent and are offered to prove 

consent.’’ 

The current regulations incorporate 

the concept of relevance into several 

provisions, specifically: 

• Recipients must conduct an 

objective evaluation of all relevant 

evidence (§ 106.45(b)(1)(ii)); 

• Recipients must train investigators 

on issues of relevance 

(§ 106.45(b)(1)(iii)); 

• Recipients must create an 

investigative report that fairly 

summarizes relevant evidence 

(§ 106.45(b)(5)(vii)); 

• Recipients must not restrict the 

ability of either party to gather and 

present relevant evidence 

(§ 106.45(b)(5)(iii)); 

• Postsecondary institutions must 

ensure that each party’s advisor has the 

ability to ask the other party and any 

witnesses all relevant questions and 

follow-up questions, and that only 

relevant cross-examination and other 

questions may be asked of a party or 

witness (§ 106.45(b)(6)(i)); 

• For all other institutions, including 

elementary and secondary schools, 

recipients must provide parties with the 

opportunity to submit written, relevant 

questions to the other party 

(§ 106.45(b)(6)(ii)); and 

• For all recipients, the 

decisionmaker must exclude oral or 

written questions that are not relevant 

and explain any decision to exclude a 

question as not relevant 

(§ 106.45(b)(6)(i) and (ii)). 

Proposed regulations: The 

Department proposes adding a 

definition of ‘‘relevant’’ to the 

regulations to help recipients 

understand their obligations under Title 

IX. The Department proposes defining 

‘‘relevant’’ as related to the allegations 

of sex discrimination under 

investigation as part of the grievance 

procedures in § 106.45, and if applicable 

§ 106.46. The proposed regulations 

would clarify as part of the definition 

that questions are relevant ‘‘when they 

seek evidence that may aid in showing 

whether the alleged sex discrimination 

occurred,’’ and that evidence is relevant 

‘‘when it may aid a decisionmaker in 

determining whether the alleged sex 

discrimination occurred.’’ 

In addition, the proposed regulations, 

at § 106.45(b)(7), would set out three 

categories of evidence, including 

records, that would be impermissible 

(i.e., must not be accessed, considered, 

disclosed, or otherwise used) in the 

grievance procedures, regardless of 

whether the evidence is relevant. 

Likewise, questions seeking these types 

of evidence would be impermissible. 

Reasons: Both the current regulations 

and the proposed regulations use a 

relevance standard in the grievance 

procedures. The Department proposes to 

add a definition of ‘‘relevant’’ to the 

regulatory text to assist recipients in 

determining relevance and to help 

parties to understand these 

determinations. In the preamble to the 

2020 amendments, the Department 

‘‘decline[d] to define’’ the term 

‘‘relevant’’ and stated that it ‘‘should be 

interpreted using [its] plain and 

ordinary meaning.’’ 85 FR 30304. 

In connection with the June 2021 

Title IX Public Hearing, OCR received 

comments about the difficulty of making 

relevancy determinations without a 

regulatory definition. Notwithstanding 

the Department’s instruction in the 

preamble to the 2020 amendments to 

use the plain and ordinary meaning of 

the term ‘‘relevant,’’ OCR continued to 

receive requests for a definition in 

connection with the June 2021 Title IX 

Public Hearing. After considering the 

issue and reweighing the facts and 

circumstances, including these 

continued requests, the Department 

proposes adding a definition of 

‘‘relevant’’ to the proposed regulations. 

In light of the varying size, structure, 

and expertise of recipients, and because 

relevancy determinations are an integral 

part of a recipient’s grievance 

procedures, the Department proposes 

defining ‘‘relevant’’ within the 

regulatory text to provide clarity for 

recipients, students, and others 

involved in a recipient’s grievance 

procedures, and to assist those 

recipients that may not have substantial 

experience applying this legal concept. 

The Department proposes setting out 

in the regulations the general principle 

that questions and evidence are relevant 

when they are related to the allegations 

of sex discrimination under 

investigation as part of a recipient’s 

grievance procedures. Although the 

Department drew a distinction in the 

preamble to the 2020 amendments 

between evidence that is directly related 

to the allegations and relevant evidence, 

id. at 30304, OCR received comments 

through the June 2021 Title IX Public 

Hearing that this distinction is not well 

delineated and is confusing. The 

Department proposes merging these 

concepts by defining ‘‘relevant’’ as 

evidence related to the allegations of sex 

discrimination. This proposed 

definition would clarify for recipients 

and others that questions are relevant 

when they seek evidence that may aid 

in showing whether the alleged sex 

discrimination (i.e., the alleged sexbased harassment or other conduct that 

could constitute sex discrimination 

under Title IX) occurred, and that 

evidence is relevant when it may aid a 

decisionmaker in determining whether 

that alleged sex discrimination 

occurred. If a question or evidence is 

related to the allegations but is not 

helpful for determining whether the 

alleged sex discrimination occurred, 

that question or piece of evidence 

would not qualify as relevant. 

As explained in greater detail in the 

discussion of proposed § 106.45(b)(7), 

the Department also proposes 

identifying three categories of evidence, 

as well as questions seeking this 

evidence, as impermissible regardless of 

relevance. The current regulations 

include similar protections against any 

use of evidence in these three categories 

but do so in several different provisions. 

The Department proposes moving these 

provisions to proposed § 106.45(b)(7) for 

ease of reference and to make clear to 

recipients and others that these types of 

evidence are completely excluded from 

a recipient’s grievance procedures. As 

explained in greater detail in the 

discussion of proposed § 106.45(b)(7), 

the Department also proposes minor 

changes to the three types of evidence 

that are not permitted regardless of 

relevance. 

First, proposed § 106.45(b)(7)(i) would 

provide that evidence that is protected 

under a privilege as recognized by 

Federal or State law (e.g., attorney-client 

privilege, doctor-patient privilege, 

spousal privilege) would not be 

permitted and must not be accessed, 

considered, disclosed, or otherwise used 

in a recipient’s grievance procedures— 

unless the person holding the privilege 

has waived it voluntarily in a manner 

permitted in the recipient’s jurisdiction. 

A similar prohibition is included at 

current § 106.45(b)(1)(x). 

Second, proposed § 106.45(b)(7)(ii) 

would provide that a party’s records 

that are made or maintained by a 

physician, psychologist, or other 

recognized professional or 

paraprofessional in connection with the 

provision of treatment to the party 

would not be permitted and must not be 

accessed, considered, disclosed, or 

otherwise used in the grievance 

procedures without the party’s consent 

for use in the recipient’s grievance 

procedures. Any consent must be 

voluntary and in writing. A similar 

prohibition is included at current 

§ 106.45(b)(5)(i). 

Third, proposed § 106.45(b)(7)(iii) 

would provide that evidence related to 


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the complainant’s sexual interests 

would not be permitted in a recipient’s 

grievance procedures. Proposed 

§ 106.45(b)(7)(iii) would also provide 

that evidence related to the 

complainant’s prior sexual conduct 

would not be permitted in a recipient’s 

grievance procedures unless it is offered 

to prove that someone other than the 

respondent committed the alleged 

conduct or to prove consent with 

evidence concerning specific incidents 

of the complainant’s prior sexual 

conduct with the respondent. Similar 

prohibitions appear at current 

§ 106.45(b)(6)(i) and (ii). Proposed 

revisions to these prohibitions, such as 

replacing ‘‘sexual behavior’’ with 

‘‘sexual conduct’’ and replacing ‘‘sexual 

predisposition’’ with ‘‘sexual interests’’ 

are explained in greater detail in the 

discussion of proposed § 106.45(b)(7). 

Proposed § 106.45(b)(7)(iii) would 

further clarify that the fact that prior 

consensual sexual conduct occurred 

between the complainant and the 

respondent does not itself demonstrate 

or imply the complainant’s consent to 

the alleged sex-based harassment or 

preclude determination that sex-based 

harassment occurred. 

Section 106.2 Definition of 

‘‘Respondent’’ 

Current regulations: Section 106.30(a) 

defines a ‘‘respondent’’ as an individual 

who has been reported to be the 

perpetrator of conduct that could 

constitute sexual harassment. 

Proposed regulations: The 

Department proposes moving the 

definition of ‘‘respondent’’ from 

§§ 106.30(a) to 106.2 with minor 

revisions. The Department proposes 

defining a ‘‘respondent’’ as an 

individual who is alleged to have 

violated the recipient’s prohibition on 

sex discrimination. 

Reasons: The definition of 

‘‘respondent’’ in the current regulations 

is limited to persons who may have 

engaged in conduct that could 

constitute sexual harassment. As the 

proposed regulations would require a 

recipient to initiate its grievance 

procedures in response to a complaint 

of any form of sex discrimination, 

consistent with Title IX, the Department 

proposes revising the definition of 

‘‘respondent’’ to include a person who 

is alleged to have violated a recipient’s 

prohibition on sex discrimination as 

opposed to a person who may have 

engaged in conduct that could 

constitute sexual harassment. Under 

proposed § 106.8(b)(1), a recipient 

would be required to ‘‘adopt and 

publish a policy stating that it does not 

discriminate on the basis of sex and 

prohibits sex discrimination in any 

education program or activity that it 

operates.’’ The Department’s current 

view is that it is more accurate to frame 

the allegations against a respondent in 

the context of violating the recipient’s 

prohibition on sex discrimination 

because this prohibition on sex 

discrimination is directly tied to the 

recipient’s obligation under Title IX to 

operate its education program or activity 

free from sex discrimination. A 

determination that the respondent 

violated the recipient’s prohibition 

would amount to a determination that 

sex discrimination occurred, which in 

turn would obligate the recipient under 

proposed § 106.44(a) to take prompt and 

effective action to end any sex 

discrimination that has occurred in its 

education program or activity, prevent 

its recurrence, and remedy its effects. 

The Department would recognize in 

proposed § 106.6(g) that a parent, 

guardian, or other authorized legal 

representative may have a legal right to 

act on behalf of a respondent. This 

approach is consistent with current 

§ 106.6(g), which states that the Title IX 

regulations must not be ‘‘read in 

derogation of any legal right of parent or 

guardian’’ to act on behalf of a 

respondent. As explained in the 

preamble to the 2020 amendments, 

although the student would be the 

respondent, in such situations involving 

a minor, ‘‘the parent or guardian, must 

be permitted to exercise the rights 

granted to the party . . . whether such 

rights involve requesting supportive 

measures or participating in the process 

outlined in the recipient’s grievance 

process.’’ 85 FR 30453. The Department 

further explained in the preamble to the 

2020 amendments, that ‘‘the parent or 

guardian must be permitted to 

accompany the student to meetings, 

interviews, and hearings during a 

grievance process to exercise rights on 

behalf of the student, while the 

student’s advisor of choice may be a 

different person from the parent or 

guardian.’’ Id. Accordingly, under 

proposed § 106.6(g), the parent, 

guardian, or other authorized legal 

representative may have a legal right to 

act on a student respondent’s behalf; 

however, the student would remain the 

respondent. 

The Department also notes that, 

consistent with the current regulations, 

a third party may be a respondent to a 

complaint of sex discrimination, 

including sex-based harassment, under 

these proposed regulations. The 

Department highlighted examples of a 

recipient’s response to complaints 

involving third-party complainants and 

respondents in the preamble to the 2020 

amendments and explained that the 

‘‘regulations require a recipient to 

respond to sexual harassment whenever 

the recipient has notice of sexual 

harassment that occurred in the 

recipient’s own education program or 

activity, regardless of whether the 

complainant or respondent is an 

enrolled student or an employee of the 

recipient.’’ Id. at 30488. 

Section 106.2 Definitions of 

‘‘Supportive Measures,’’ ‘‘Disciplinary 

Sanctions,’’ and ‘‘Remedies’’ 

Current regulations: The Title IX 

regulations, at § 106.30, define 

‘‘supportive measures’’ as nondisciplinary, non-punitive 

individualized services offered as 

appropriate, as reasonably available, 

and without fee or charge to the 

complainant or the respondent before or 

after the filing of a formal complaint or 

when no formal complaint has been 

filed. The regulations state that such 

measures are designed to restore or 

preserve equal access to the recipient’s 

education program or activity, without 

unreasonably burdening the other party, 

including measures designed to protect 

the safety of all parties or the recipient’s 

educational environment, or deter the 

respondent from engaging in sexual 

harassment. The current regulations 

include a non-exhaustive list of certain 

types of measures that a recipient can 

provide as supportive measures. Current 

§ 106.30 also requires a recipient to 

maintain as confidential any supportive 

measures it provides, except to the 

extent such confidentiality would 

impair the recipient’s ability to provide 

the supportive measures. Finally, the 

current regulations state that the Title IX 

Coordinator is responsible for 

coordinating the effective 

implementation of supportive measures. 

The current regulations do not define 

‘‘disciplinary sanctions’’ or ‘‘remedies.’’ 

The term ‘‘remedies’’ is used in current 

§ 106.45(b)(i), which states that a 

recipient must treat ‘‘the complainant 

and respondent equitably by providing 

remedies to a complainant where a 

determination of responsibility for 

sexual harassment has been made 

against the respondent, and by 

following a grievance process that 

complies with this section before the 

imposition of any disciplinary sanctions 

or other actions that are not supportive 

measures as defined in § 106.30, against 

a respondent.’’ The current regulations 

explain that remedies ‘‘must be 

designed to restore or preserve equal 

access to the recipient’s education 

program or activity’’ and may include 

the same individualized services 

described in § 106.30 as supportive 


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measures. 34 CFR 106.45(b)(i). Finally, 

they provide that ‘‘remedies need not be 

non-disciplinary or non-punitive and 

need not avoid burdening the 

respondent.’’ Id. 

Proposed regulations: The 

Department proposes to define two 

related, but distinct, terms— 

‘‘disciplinary sanctions’’ and 

‘‘remedies’’—and to retain the current 

definition of ‘‘supportive measures’’ 

with some edits. The Department 

proposes adding definitions of 

‘‘disciplinary sanctions’’ and 

‘‘remedies’’ to provide clarity for 

recipients as to the meanings of these 

terms as they are used in the 

Department’s Title IX regulations and to 

help ensure consistency in how 

disciplinary sanctions and remedies are 

utilized by recipients under Title IX. 

The Department proposes retaining 

the current definition of ‘‘supportive 

measures’’ as non-disciplinary, nonpunitive, individualized measures, 

offered as appropriate, as reasonably 

available, without unreasonably 

burdening a party, and without fee or 

charge to the complainant or 

respondent, with some clarifying 

amendments. In addition, the 

Department proposes moving the 

following provisions from the definition 

of ‘‘supportive measures’’ to other 

provisions in the proposed regulations: 

the range of supportive measures to 

proposed § 106.44(k)(1); and the Title IX 

Coordinator’s obligation to offer and 

coordinate supportive measures to 

proposed § 106.44(f)(3). A recipient’s 

obligation to maintain as confidential 

any supportive measures it provides 

would be moved to proposed 

§ 106.44(g)(5) and modified to permit a 

recipient to provide information about 

supportive measures to persons other 

than the complainant or respondent as 

necessary to provide the measure, or to 

a party only if necessary to restore or 

preserve the other party’s access to the 

recipient’s education program or 

activity. Finally, the Department 

proposes revising the definition to 

clarify that supportive measures may be 

offered to restore or preserve that party’s 

access to the recipient’s education 

program or to provide support during 

the recipient’s grievance procedures in 

§ 106.45, and if applicable § 106.46, or 

during the informal resolution process 

in § 106.44(k). The Department would 

also clarify that supportive measures 

can include temporary measures that 

burden a respondent during the 

pendency of a grievance procedures, but 

only when such measures are imposed 

for non-punitive and non-disciplinary 

reasons and are designed to protect the 

safety of the complainant or the 

recipient’s educational environment. 

And, as explained in greater detail in 

the discussion of proposed § 106.44(g), 

the Department proposes including 

additional provisions to guide the 

coordination of supportive measures, 

including the requirement that these 

temporarily burdensome measures may 

be imposed only if the respondent is 

given the opportunity to seek 

modification or reversal of them. 

The Department proposes defining 

‘‘disciplinary sanctions’’ as 

consequences imposed on a respondent 

following a determination that the 

respondent violated the recipient’s 

prohibition on sex discrimination. As in 

the current regulations, the 

Department’s proposed definition of 

‘‘disciplinary sanctions’’ would 

recognize that a recipient must follow 

grievance procedures consistent with 

regulatory requirements before imposing 

disciplinary sanctions on a respondent. 

The proposed definition would 

encompass disciplinary sanctions 

applied when a recipient determines 

that the respondent has violated any 

aspect of the recipient’s prohibition on 

sex discrimination after following 

grievance procedures under proposed 

§ 106.45, and if applicable proposed 

§ 106.46. Under the proposed 

regulations, disciplinary sanctions may 

be applied to a respondent who is a 

student, employee, or third party. 

Finally, the Department proposes 

including a definition of ‘‘remedies’’ in 

§ 106.2 to clarify that remedies are 

measures provided, as appropriate, to a 

complainant or any other person the 

recipient identifies as having had equal 

access to the recipient’s education 

program or activity limited or denied by 

sex discrimination. The proposed 

definition would also clarify that 

remedies are designed to restore or 

preserve access to the recipient’s 

education program or activity after a 

recipient determines that sex 

discrimination occurred. 

Reasons: The Department proposes 

these definitions to provide clarity and 

ensure that recipients are aware of their 

obligations under Title IX. All three 

definitions describe ways in which a 

recipient may provide effective 

protection against and response to sex 

discrimination. The Department 

emphasizes that a recipient must take 

into account the distinct timing, 

purpose, and considerations of 

supportive measures, disciplinary 

sanctions, and remedies before 

providing or imposing them, as their 

definitions make clear: 

• Supportive measures are intended 

to preserve or restore a complainant’s or 

respondent’s access to the recipient’s 

education program or activity and may 

be provided to the complainant or 

respondent, as appropriate, after the 

Title IX Coordinator has been notified of 

conduct that may constitute sex 

discrimination under Title IX; 

• Disciplinary sanctions are 

consequences imposed on a respondent 

in response to a determination that a 

respondent violated the recipient’s 

prohibition on sex discrimination and 

may be applied to a respondent only 

after a recipient has made this 

determination; and 

• Remedies are intended to preserve 

or restore access to the recipient’s 

education program or activity and may 

be provided to a complainant or other 

person after a recipient determines that 

sex discrimination occurred, including 

when a recipient engages in sex 

discrimination through its own action or 

inaction. 

Supportive Measures. The Department 

proposes maintaining the existing 

definition of ‘‘supportive measures’’ 

with revisions to increase readability 

and clarity and to align this section with 

other modifications the Department 

proposes making to the regulations. The 

Department proposes retaining in the 

definition of ‘‘supportive measures’’ that 

such measures are non-disciplinary and 

non-punitive, but proposes using the 

term ‘‘measures’’ rather than using the 

term ‘‘services’’ that is in the current 

definition. The Department proposes 

making this change to avoid confusion 

that may be caused by the current 

regulations’ use of both ‘‘services’’ and 

‘‘measures’’ to describe supportive 

measures. 

The Department also proposes that a 

recipient must offer supportive 

measures, as appropriate, to a 

complainant or respondent for any type 

of conduct that constitutes sex 

discrimination, including but not 

limited to sex-based harassment and 

retaliation. The Department proposes 

retaining the language that supportive 

measures are designed to restore or 

preserve a party’s access to the 

recipient’s education program or 

activity. At the same time, the 

Department proposes clarifying that a 

supportive measure that may burden a 

respondent during the pendency of a 

grievance procedure may be imposed as 

a temporary supportive measure, but 

only when such a supportive measure is 

imposed for non-punitive and nondisciplinary reasons and is designed to 

protect the safety of the complainant or 

the recipient’s educational environment 

and, as the discussion of proposed 

§ 106.44(g) clarifies, only if the 

respondent is given an opportunity to 

seek modification or reversal of such a 


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measure. As explained in greater detail 

in the discussion of proposed 

§ 106.44(g), a recipient would also be 

permitted to impose supportive 

measures that burden a respondent even 

if the specific measure imposed is also 

available as a disciplinary sanction, but 

only if such a supportive measure is not 

imposed for punitive or disciplinary 

reasons and is intended to restore or 

preserve the complainant’s access to the 

recipient’s education program or 

activity. In light of the potential harm to 

a student respondent’s education from 

unnecessary or inappropriate 

implementation of such temporarily 

burdensome supportive measures, 

however, a recipient would not be 

required to impose supportive measures 

that burden a respondent, but rather 

would be permitted to impose such 

measures if the recipient deems the 

measures appropriate to the 

circumstances of that case. When 

imposing supportive measures that 

burden a respondent, the recipient 

would be required to engage in a factspecific inquiry to determine whether 

burdensome supportive measures are 

necessary as part of its grievance 

procedures under proposed § 106.45, 

and if applicable proposed § 106.46, and 

if so, which supportive measures would 

be the least restrictive of the 

respondent’s access to the program or 

activity while still ensuring 

nondiscriminatory access for the 

complainant. As proposed, supportive 

measures that burden a respondent 

would terminate once the recipient has 

determined whether sex discrimination 

occurred at the conclusion of a 

grievance procedure. Because 

supportive measures that burden a 

respondent may be imposed only during 

the pendency of a recipient’s grievance 

procedures, they would not be available 

during an informal resolution process 

under proposed § 106.44(k). 

The Department also proposes adding 

to the existing definition of ‘‘supportive 

measures’’ that, in addition to the 

purposes set out in the current 

regulations and discussed above, 

supportive measures that do not burden 

the respondent may be necessary to 

provide a party with support through 

the recipient’s grievance procedures in 

proposed § 106.45, and if applicable 

§ 106.46, as well as through the informal 

resolution process in proposed 

§ 106.44(k). This addition to the existing 

definition acknowledges that a party 

may need supportive measures in order 

to participate fully in and have equal 

access to a recipient’s grievance 

procedures, whether formal or informal. 

The Department proposes moving the 

list of examples of supportive measures 

from the definition of ‘‘supportive 

measures’’ to proposed § 106.44(g)(1), 

which would require a Title IX 

Coordinator, upon being notified of 

conduct that may constitute sex 

discrimination under Title IX, to offer 

supportive measures to complainants 

and, if appropriate, respondents. As 

explained in the discussion of that 

section, the list is intended to be 

illustrative and non-exhaustive. In 

addition, the Department proposes 

removing from the definition of 

‘‘supportive measures’’ that a ‘‘recipient 

must maintain as confidential any 

supportive measures provided to the 

complainant or respondent, to the 

extent that maintaining such 

confidentiality would not impair the 

ability of the recipient to provide the 

supportive measures’’ and moving this 

clarification of a recipient’s obligation to 

maintain the confidentiality of 

supportive measures that it provides, 

subject to limited exceptions, to 

proposed § 106.44(g)(5). 

Finally, the Department proposes 

removing from the definition of 

‘‘supportive measures’’ the requirement 

that the Title IX Coordinator is 

responsible for coordinating the 

effective implementation of supportive 

measures. Instead, the Department 

proposes moving this requirement to 

proposed § 106.44(g)(6), which would 

state that a Title IX Coordinator would 

be responsible for offering and 

coordinating supportive measures. 

Disciplinary Sanctions. The 

Department proposes adding a 

definition of ‘‘disciplinary sanctions’’ to 

§ 106.2 to clarify what constitutes a 

disciplinary sanction and when 

imposition of a disciplinary sanction is 

appropriate. 

The proposed definition of 

‘‘disciplinary sanctions’’ explains that 

disciplinary sanctions are consequences 

imposed on a respondent for violating 

the recipient’s prohibition on sex 

discrimination, but it does not specify 

the consequences a recipient can or 

must impose. The proposed definition 

of ‘‘disciplinary sanctions’’ would apply 

to all determinations that a respondent 

has violated the recipient’s prohibition 

on sex discrimination. In contrast, the 

current regulations address disciplinary 

sanctions only in relation to sexual 

harassment, following a grievance 

process under § 106.45 in response to a 

formal complaint of sexual harassment. 

The proposed definition would accord 

with the Department’s intent to enable 

full implementation of Title IX’s 

purpose. Consistent with the current 

regulations, the proposed regulations 

would not permit a recipient to impose 

disciplinary sanctions on a respondent 

prior to the conclusion of the grievance 

procedures because imposing a nontemporary or punitive consequence 

before reaching a determination would 

be contrary to the requirement to have 

an adequate, reliable, and impartial 

investigation and resolution of 

complaints under proposed § 106.45(f) 

or the requirement to include a 

presumption that the respondent is not 

responsible for the alleged conduct until 

a determination whether sex 

discrimination occurred is made at the 

conclusion of the recipient’s grievance 

procedures for complaints of sex 

discrimination under proposed 

§ 106.45(b)(3). 

Remedies. The Department’s 

proposed regulations would provide a 

definition of ‘‘remedies’’ that ensures 

effective response to sex discrimination 

and consistency in available remedies 

for all forms of discrimination. The 

Department proposes this change 

following consideration of comments 

received as part of the June 2021 Title 

IX Public Hearing regarding the limited 

scope of remedies available under the 

current regulations. Stakeholders asked 

OCR to clarify the role of remedies in 

ensuring that students have access to a 

nondiscriminatory education program 

or activity following a determination 

that sex discrimination occurred or that 

the recipient’s own action or inaction 

resulted in sex discrimination, 

including but not limited to sex-based 

harassment. 

The Department’s proposed definition 

would also ensure that remedies are 

available to restore and preserve access 

to the educational environment when 

any form of sex discrimination, not only 

sexual harassment, disrupts that 

educational environment. For example, 

following a determination that a teacher 

retaliated against a student who made a 

Title IX complaint by disciplining that 

student in violation of the recipient’s 

prohibition on sex discrimination, that 

student may be eligible for remedies, 

such as changes to the student’s 

transcript to remove the disciplinary 

notation, or a classroom change so that 

the student is no longer in that teacher’s 

class. 

Moreover, the Department recognizes 

that persons other than the complainant 

who are participating or attempting to 

participate in a recipient’s education 

program or activity where sex 

discrimination occurred may also have 

their access to the education program or 

activity limited or denied as a result of 

that sex discrimination. For this reason, 

the Department proposes clarifying in 

the regulations that these individuals 

may be able to receive remedies. For 

example, if a high school coach engages 


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in sex-based harassment of a studentathlete in front of the student-athlete’s 

teammates who then notify the school of 

the sex-based harassment, and the 

school determines that sex-based 

harassment occurred, it may be 

appropriate to provide remedies to these 

student-athletes who were also exposed 

to the sex-based harassment if their 

equal access to the education program 

or activity was denied or limited by, for 

example, the psychological impact of 

the harassment they witnessed. 

Remedies in the form of counseling or 

other supports may be appropriate for 

these students following the school’s 

determination. 

The proposed regulations also 

recognize that remedies may be 

appropriate when the recipient’s own 

action or inaction in response to an 

allegation of sex discrimination resulted 

in a distinct Title IX violation. For 

example, if a student reported to the 

Dean of Students that another student 

sexually assaulted them on campus and 

the recipient failed to take the necessary 

action, the recipient’s inaction would 

likely violate Title IX. See, e.g., Davis, 

526 U.S. at 643; Jackson, 544 U.S. at 

173–74. In this example, if the student, 

as a result of the recipient’s failure to act 

after receiving the student’s report, has 

to continue to attend classes with the 

respondent and drops out of these 

classes due to further sex-based 

harassment or peer retaliation, then the 

recipient would need to provide 

remedies to the student to restore or 

preserve their access to the recipient’s 

education program or activity. These 

remedies could include, for example, 

counseling, tutoring, or additional time 

to complete an assignment to address 

limitations on the student’s access to 

their education caused by the recipient’s 

failure to meet the requirements of Title 

IX. In addition, if the recipient’s initial 

steps to address the sex-based 

harassment were insufficient, then it 

would be required to take additional 

steps and provide additional remedies 

to the student to fulfill its obligation 

under proposed § 106.44. For example, 

if a recipient failed to take the steps 

required under proposed § 106.44 upon 

being notified that a student was 

sexually assaulted by another student 

on campus because of insufficient Title 

IX Coordinator training, it would need, 

at minimum, to revise its Title IX 

Coordinator training on the recipient’s 

obligation to address sex discrimination 

and the Title IX Coordinator’s 

responsibilities in coordinating the 

recipient’s actions to comply with that 

obligation as a remedy for its own 

inaction and, in addition, would need to 

fully comply with its obligations under 

proposed § 106.44 to prevent the 

recurrence of such sex discrimination 

and remedy its effects. 

Examples of possible measures a 

recipient may need to offer a student to 

remedy the effects of sex-based 

harassment, to remedy the additional 

harm caused by a recipient’s action or 

inaction, or to restore or preserve a 

student’s continued access to a 

recipient’s education program or 

activity after a determination that sexbased harassment occurred could 

include: ensuring that a complainant 

can move safely between classes and 

while at school or on campus such as by 

providing a campus escort or allowing 

a student to park in the teacher’s 

parking lot; making changes to class 

schedules and extracurricular activities 

to ensure the complainant and 

respondent are separated; making 

adjustments to student housing; 

providing services including medical 

support and counseling; providing 

academic resources and support; 

reviewing any disciplinary actions taken 

against the complainant to determine 

whether there is a causal connection 

between the sex-based harassment and 

the misconduct; providing 

reimbursement for professional 

counseling services; making tuition 

adjustments; and any other remedies it 

deems appropriate. 

Remedies provided following a 

determination that sex discrimination 

occurred may include measures that 

were provided as supportive measures 

during the pendency of the 

investigation. A temporary restriction 

on contact or removal from an activity 

that was imposed as a supportive 

measure thus may be imposed as a 

remedy after a finding that sex 

discrimination occurred if it would be 

necessary to preserve or restore the 

complainant’s access. Because the 

remedy would be instituted following a 

determination that sex discrimination 

occurred, its function would be to 

remedy past discrimination rather than 

provide a temporary protection of the 

complainant’s access while the 

grievance procedures are underway. 

Some actions taken by a recipient 

could also serve as both a remedy and 

a disciplinary sanction, e.g., the 

suspension of a respondent who 

engaged in sex discrimination may aid 

in restoring a complainant’s access to 

the recipient’s education program or 

activity while also serving as a 

disciplinary consequence for the 

respondent’s violation of the recipient’s 

policy. 

Neither remedies nor disciplinary 

sanctions would be available under 

informal resolution in proposed 

§ 106.44(k) because there would be no 

final determination that sex 

discrimination occurred in the informal 

resolution process. As described in 

greater detail in the discussion of 

proposed § 106.44(k), the respondent 

may agree to terms of a voluntary 

agreement that may otherwise constitute 

remedies or disciplinary sanctions had 

the recipient determined that sex 

discrimination occurred under the 

recipient’s grievance procedures. 

Section 106.30(a) Removal of 

Reference to a Definition of ‘‘consent’’ 

Current regulations: Current 

§ 106.30(a) states that the Assistant 

Secretary will not require recipients to 

adopt a particular definition of 

‘‘consent’’ with respect to sexual 

assault, as referenced in this section. 

Proposed regulations: The 

Department proposes removing this 

provision from the definitions section. 

Reasons: The Department proposes 

removing § 106.30 as a whole and 

proposes moving some provisions from 

that section to other provisions in the 

proposed regulations. The Department 

proposes removing the current 

provision addressing consent from the 

regulations altogether because it is 

unnecessary and confusing to include 

language in the definitions section 

stating that the Department declines to 

define a certain term. 

The Department’s position remains, as 

stated in the preamble to the 2020 

amendments, that ‘‘the definition of 

what constitutes consent for purposes of 

sexual assault within a recipient’s 

educational community is a matter best 

left to the discretion of recipients, many 

of whom are under State law 

requirements to apply particular 

definitions of consent for purposes of 

campus sexual misconduct policies.’’ 85 

FR 30124. For these reasons, in the 2020 

amendments, the Department 

‘‘decline[d] to impose a federalized 

definition of consent for Title IX 

purposes’’ despite requests by some 

stakeholders to do so. Id. at 30125. In 

response to those requests, the 

Department instead included a 

provision for consent in the definitions 

section stating that the Department 

would not require recipients to adopt a 

particular definition of consent. 


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D. Administrative Requirements 

Section 106.8 Designation of 

Coordinator, Adoption and Publication 

of Nondiscrimination Policy and 

Grievance Procedures, Notice of 

Nondiscrimination, Training, and 

Recordkeeping 

Current regulations: The section 

heading is ‘‘Designation of coordinator, 

dissemination of policy, and adoption of 

grievance procedures.’’ 

Proposed regulations: The 

Department proposes changing this 

section heading to ‘‘Designation of 

coordinator, adoption and publication 

of nondiscrimination policy and 

grievance procedures, notice of 

nondiscrimination, training, and 

recordkeeping.’’ 

Reasons: The proposed section 

heading would more accurately describe 

the content of the section. 

Section 106.8(a) Designation of a Title 

IX Coordinator 

Current regulations: Section 106.8(a) 

requires each recipient to designate at 

least one employee as the Title IX 

Coordinator to coordinate its efforts to 

comply with Title IX’s statutory and 

regulatory requirements. Current 

§ 106.8(a) requires a recipient to notify 

applicants for admission and 

employment, students, parents or legal 

guardians of elementary and secondary 

school students, employees, and all 

unions or professional organizations 

holding collective bargaining or 

professional agreements with the 

recipient, of the name or title, office 

address, email address, and telephone 

number of the employee or employees 

designated as the Title IX Coordinator. 

Current § 106.8(a) also states that any 

person may report sex discrimination, 

including sexual harassment, to the 

Title IX Coordinator using a variety of 

means at any time. 

Proposed regulations: The 

Department proposes adding two new 

headings to the section for clarity: ‘‘Title 

IX Coordinator’’ and ‘‘Delegation to 

designees.’’ Proposed § 106.8(a)(1) 

would maintain the requirement that a 

recipient must designate and authorize 

at least one employee as the ‘‘Title IX 

Coordinator’’ to coordinate its efforts to 

comply with the recipient’s 

responsibilities under the Department’s 

Title IX regulations. In proposed 

§ 106.8(a)(2), the Department proposes 

adding that, as appropriate, the Title IX 

Coordinator may assign one or more 

designees to carry out some of the 

recipient’s responsibilities, but that one 

Title IX Coordinator must retain 

ultimate oversight over those 

responsibilities. 

The Department proposes removing 

language from the existing provision 

that requires a recipient to provide the 

contact information for its Title IX 

Coordinator and that includes specific 

instructions for how to report sex 

discrimination to the Title IX 

Coordinator. Instead, the Department 

proposes moving the requirement that a 

recipient must provide notice of 

nondiscrimination, which must include 

the contact information for the Title IX 

Coordinator, how to report information 

that may constitute sex discrimination 

under Title IX, how to make a complaint 

of sex discrimination, and how to locate 

the recipient’s grievance procedures, to 

proposed § 106.8(c). 

Reasons: The Department proposes 

revisions to § 106.8(a) and (c), to afford 

greater clarity about a recipient’s core 

obligation to designate a Title IX 

Coordinator (proposed § 106.8(a)), adopt 

and publish a nondiscrimination policy 

and grievance procedures for 

complaints of sex discrimination and 

any action prohibited by the regulations 

(proposed § 106.8(b)), and provide 

notice of the contact information for its 

Title IX Coordinator, as well as notice 

of its nondiscrimination policy and 

grievance procedures to individuals 

entitled to receive notification via 

specific means of publication (proposed 

§ 106.8(c)). As part of this restructuring, 

the Department proposes limiting 

§ 106.8(a)(1) to the requirement to 

designate a Title IX Coordinator. The 

Department proposes moving the 

requirement that a recipient notify 

certain people of the contact 

information for its Title IX Coordinator 

to the requirement regarding providing 

a notice of nondiscrimination, which 

would also include notice of a 

recipient’s nondiscrimination policy 

and grievance procedures, as described 

in proposed § 106.8(c)(1)(i) through (v). 

The Department anticipates that 

consolidating all of the required 

contents of the notice of 

nondiscrimination into proposed 

§ 106.8(c)(1) will make it easier for 

recipients to understand how to comply 

with these requirements. 

Designees. The Department proposes 

revisions to § 106.8(a) to expressly 

permit a recipient to assign one or more 

designees to carry out some of the Title 

IX Coordinator’s responsibilities, as long 

as one individual, referred to as the 

‘‘Title IX Coordinator,’’ retains ultimate 

authority to coordinate the recipient’s 

compliance with Title IX and oversight 

over those designated responsibilities. 

This approach would enable a recipient 

that enrolls large numbers of students, 

employs large numbers of employees, 

provides services in multiple locations, 

or engages in a large variety of activities 

to carry out its various Title IX 

responsibilities effectively. For example, 

in the elementary school and secondary 

school setting, a school district could 

designate the Title IX Coordinator and 

authorize that person to appoint or 

oversee building-level coordinators for 

each school building within the district. 

These building-level coordinators could 

carry out some of the Title IX 

Coordinator’s duties, such as providing 

training or ensuring that grievance 

procedures are administered correctly in 

that school building. Alternatively, a 

Title IX Coordinator could assign a 

designee to oversee several buildings, or 

a unit, such as all elementary schools in 

a district or a medical school within a 

university. Similarly, a Title IX 

Coordinator could have designees that 

oversee compliance with different 

aspects of the recipient’s Title IX 

obligations, such as those related to 

athletics, pregnant and parenting 

students, financial assistance, or sexbased harassment. In each example, the 

Title IX Coordinator, not one particular 

designee or group of designees, would 

retain ultimate authority to coordinate 

the recipient’s compliance with Title IX 

and oversight over each of the 

designees’ responsibilities and over the 

recipient’s overall compliance with 

Title IX. 

By having one Title IX Coordinator 

oversee designees, the Title IX 

Coordinator would ensure consistent 

Title IX compliance across the 

recipient’s education program or 

activity. This structure may also help 

the Title IX Coordinator identify trends 

across multiple programs or activities of 

the recipient and coordinate training or 

educational programming responsive to 

those trends. For example, if students at 

three different schools report sex-based 

harassment on the school bus, the Title 

IX Coordinator, who is aware of each 

discrete incident, may realize that these 

incidents are not isolated, but rather, 

part of a larger trend indicating a need 

for better training, supervision, or 

staffing on school buses across the 

district. 

In addition, this oversight structure is 

consistent with the view the Department 

expressed in the preamble to the 2020 

amendments, which stressed that a 

recipient must ensure that a Title IX 

Coordinator is not ‘‘designated ‘in name 

only’ ’’ and instead is fully authorized to 

coordinate a recipient’s efforts to 

comply with Title IX. 85 FR 30464. A 

recipient must ensure that the Title IX 

Coordinator is effective in this role by 

ensuring that the Title IX Coordinator 

has the appropriate authority, support, 

and resources to coordinate the 


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recipient’s Title IX compliance efforts. 

In light of this proposed revision to 

§ 106.8(a), every reference to the ‘‘Title 

IX Coordinator’’ in this preamble, other 

than in the discussion of proposed 

§ 106.8(a)(1) and (2), should be 

understood to include the Title IX 

Coordinator and any designees. 

Notification requirements. The 

Department proposes deleting the 

specific instructions for how to report 

sex discrimination to the Title IX 

Coordinator from current § 106.8(a). The 

Department added the instructions as 

part of the 2020 amendments; however, 

as explained in greater detail in the 

discussion of the notice of 

nondiscrimination in proposed 

§ 106.8(c), the Department proposes 

adding to proposed § 106.8(c)(1)(v) a 

requirement that a recipient include in 

the content of its notice of 

nondiscrimination how to report 

information about conduct that may 

constitute sex discrimination under 

Title IX, how to make a complaint of sex 

discrimination under the regulations, 

and how to locate the recipient’s 

grievance procedures as described in 

§ 106.45, and if applicable § 106.46. In 

addition, the Department proposes 

including in proposed § 106.44(c) that a 

recipient must impose specific 

notification requirements upon various 

employees when the employee has 

information about conduct that may 

constitute sex discrimination under 

Title IX. These notification 

requirements are explained in greater 

detail in the discussion of proposed 

§ 106.44(c). 

Section 106.8(b) Adoption and 

Publication of Nondiscrimination Policy 

and Grievance Procedures 

Current regulations: Section 

106.8(b)(1) requires a recipient to notify 

persons entitled to notification under 

current § 106.8(a) that the recipient does 

not discriminate on the basis of sex in 

its education program or activity and 

that it is required by Title IX not to 

discriminate in that manner. Current 

§ 106.8(b)(2) requires each recipient to 

prominently display contact 

information for its Title IX Coordinator, 

as well as its Title IX nondiscrimination 

notice, on its website and in each 

handbook or catalog. Current § 106.8(c) 

requires a recipient to adopt and 

publish grievance procedures for the 

prompt and equitable resolution of 

student and employee complaints 

alleging sex discrimination and a 

grievance process for formal complaints 

of sexual harassment under current 

§ 106.45. 

Proposed regulations: The 

Department proposes consolidating the 

requirements to adopt and publish a 

nondiscrimination policy and grievance 

procedures into proposed § 106.8(b). 

The consolidation would add two 

headings to clarify that a recipient must 

adopt and publish a nondiscrimination 

policy under paragraph (b)(1) and 

grievance procedures for the prompt 

and equitable resolution of any action 

that would be prohibited by Title IX or 

the regulations, under paragraph (b)(2). 

The Department proposes adding an 

explicit requirement in proposed 

§ 106.8(b)(1) that a recipient must adopt 

and publish a policy stating it does not 

discriminate based on sex and prohibits 

sex discrimination in any education 

program or activity that it operates. The 

Department also proposes moving the 

requirement that a recipient adopt and 

publish grievance procedures consistent 

with the requirements of § 106.45, and 

if applicable § 106.46, that provide for 

the prompt and equitable resolution of 

complaints alleging any action that 

would be prohibited by the regulations 

from current § 106.8(c) to proposed 

§ 106.8(b)(2). 

As part of its proposed restructuring 

of § 106.8(a) through (c), the Department 

proposes moving the specific 

requirements in current § 106.8(b) 

regarding the persons entitled to receive 

notification of the recipient’s notice of 

nondiscrimination as well as the 

publications in which a recipient must 

include its notice of nondiscrimination 

to proposed § 106.8(c) and 106.8(c)(2), 

respectively. 

Reasons: The Department proposes 

changes to § 106.8(b) to simplify and 

clarify a recipient’s obligations to adopt 

and publish a nondiscrimination policy 

and Title IX grievance procedures. 

Adoption and publication of 

nondiscrimination policy: Although the 

Department has long required a 

recipient to notify certain individuals of 

its nondiscrimination policy, the 

current Title IX regulations do not make 

explicit that a recipient must adopt such 

a policy. The proposed addition to 

§ 106.8(b)(1) provides this clarification. 

The process for adoption would vary by 

recipient and jurisdiction. For example, 

it could include a vote by a board of 

education for a school district or by a 

governing board for a postsecondary 

institution or adoption by leadership 

within the school district or 

postsecondary institution. As discussed 

in the following section regarding 

proposed § 106.8(c), although the 

Department proposes clarifying the 

requirements for publishing a ‘‘notice of 

nondiscrimination’’—which would 

include information on how persons can 

locate the recipient’s nondiscrimination 

policy and grievance procedures and 

specific requirements on where that 

notice must be published—the 

Department does not propose specific 

requirements for how a recipient must 

publish its nondiscrimination policy. A 

recipient may choose to include its 

nondiscrimination policy in full on its 

website or in printed publications such 

as a handbook or catalog. In addition, a 

recipient may choose to print its 

nondiscrimination policy and make it 

available in a specific, designated office 

such as a guidance counselor’s office, a 

Title IX Coordinator’s office, or a Dean 

of Students office. 

Adoption and publication of 

grievance procedures. The Department 

proposes moving the requirement that a 

recipient must adopt grievance 

procedures that provide for the prompt 

and equitable resolution of complaints 

alleging any action that would be 

prohibited by Title IX and the 

regulations from current § 106.8(c) to 

proposed § 106.8(b)(2). The Department 

further proposes revisions to proposed 

§ 106.8(b)(2) to clarify that a recipient’s 

grievance procedures must be published 

and must provide for the resolution of 

complaints made by a student, 

employee, third party participating or 

attempting to participate in the 

recipient’s education program or 

activity, or the Title IX Coordinator 

alleging any action that would violate 

Title IX or its regulations. The 

Department proposes adding 

§ 106.8(b)(2) to clarify that a recipient 

must adopt and publish grievance 

procedures under Title IX to address all 

forms of sex discrimination, including 

sex-based harassment, consistent with 

the requirements of § 106.45, and if 

applicable § 106.46. 

The Department’s proposed revisions 

would apply proposed § 106.45 as the 

framework for all complaints of sex 

discrimination, including sex-based 

harassment, for all recipients. The 

Department proposes additional 

requirements in proposed § 106.46 for 

grievance procedures that would apply 

only to complaints of sex-based 

harassment at postsecondary 

institutions in which at least one party 

is a student. Rather than referring to the 

grievance procedures for complaints of 

sexual harassment as a grievance 

‘‘process,’’ the Department proposes 

making a non-substantive change to 

refer to the procedures required under 

both proposed §§ 106.45 and 106.46 as 

grievance ‘‘procedures,’’ consistent with 

the language used in proposed §§ 106.45 

and 106.46. 

As with proposed § 106.8(b)(1), under 

proposed § 106.8(b)(2), a recipient may 

adopt the required grievance procedures 

by following its typical policy approval 


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process approval. For some recipients, 

grievance procedures that comply with 

the requirements of proposed § 106.45, 

and if applicable proposed § 106.46, 

will be approved by a vote of the 

recipient’s board of education or 

governing board. For others, a 

recipient’s administrative staff will 

provide approval. Also, similar to 

proposed § 106.8(b)(1), although the 

Department proposes clarifying the 

requirements for a recipient to provide 

and publish a notice of 

nondiscrimination under proposed 

§ 106.8(c), the Department would 

further leave to a recipient’s discretion 

where and how to publish its grievance 

procedures. 

Section 106.8(c) Notice of 

Nondiscrimination 

Current regulations: Section 106.8(a) 

requires a recipient to notify applicants 

for admission and employment, 

students, parents or legal guardians of 

elementary school and secondary school 

students, employees, and all unions or 

professional organizations holding 

collective bargaining or professional 

agreements of the name or title, office 

address, electronic mail address, and 

telephone number of the employee or 

employees designated as the Title IX 

Coordinator. Current § 106.8(b) requires 

a recipient to notify the same persons 

listed in paragraph (a) that it does not 

discriminate on the basis of sex in the 

education program or activity that it 

operates, that it is required by Title IX 

and the regulations not to discriminate 

in such a manner, that the requirement 

not to discriminate in the education 

program or activity extends to 

admission and employment, and that 

inquiries about the application of Title 

IX and the regulations to such recipient 

may be referred to the recipient’s Title 

IX Coordinator, to the Assistant 

Secretary, or both. Current § 106.8(b)(2) 

requires each recipient to prominently 

display contact information for its Title 

IX Coordinator, as well as its Title IX 

nondiscrimination notice, on its website 

and in each handbook or catalog. 

Current § 106.8(c) requires a recipient to 

notify the same persons listed in 

paragraph (a) of its grievance procedures 

and grievance process, including how to 

report or file a complaint of sex 

discrimination, how to report or file a 

formal complaint of sexual harassment, 

and how the recipient will respond. 

Proposed regulations: The 

Department proposes changing the 

heading of proposed § 106.8(c) from 

‘‘Adoption of grievance procedures’’ to 

‘‘Notice of nondiscrimination.’’ The 

Department also proposes adding two 

headings—‘‘Contents of notice of 

nondiscrimination’’ and ‘‘Publication of 

notice of nondiscrimination’’—to 

consolidate and clarify the persons to 

whom this information must be 

provided (proposed § 106.8(c)), the 

specific content a recipient would be 

required to include in its notice of 

nondiscrimination, (proposed 

§ 106.8(c)(1)), and where and how a 

recipient must publicize its notice of 

nondiscrimination (proposed 

§ 106.8(c)(2)). 

Proposed § 106.8(c) would require a 

recipient to provide a notice of 

nondiscrimination to the same 

individuals to whom notice must be 

provided under current § 106.8(a): 

students; parents, guardians or other 

authorized legal representatives of 

elementary school and secondary school 

students; employees; applicants for 

admission and employment; and all 

unions and professional organizations 

holding collective bargaining or 

professional agreements with the 

recipient. The Department proposes a 

minor change to include ‘‘other 

authorized legal representatives of 

elementary school and secondary school 

students’’ to the group of individuals 

entitled to receive the notice of 

nondiscrimination. Proposed 

§ 106.8(c)(1) would further require a 

recipient to include the following 

specific information in its notice of 

nondiscrimination: 

• A statement that the recipient does 

not discriminate on the basis of sex and 

prohibits sex discrimination in any 

education program or activity that it 

operates, as required by Title IX and its 

regulations, including in admission 

(unless subpart C of part 106 does not 

apply) and employment (proposed 

§ 106.8(c)(1)(i)); 

• A statement that inquiries about the 

application of Title IX and the 

regulations to the recipient may be 

referred to the recipient’s Title IX 

Coordinator, to the Office for Civil 

Rights, or to both (proposed 

§ 106.8(c)(1)(ii)); 

• The name or title, office address, 

email address, and telephone number of 

the recipient’s Title IX Coordinator 

(proposed § 106.8(c)(1)(iii)); 

• How to locate the recipient’s 

nondiscrimination policy under 

proposed § 106.8(b)(1) (proposed 

§ 106.8(c)(1)(iv)); and 

• How to report information about 

conduct that may constitute sex 

discrimination under Title IX, how to 

make a complaint of sex discrimination 

under the regulations, and how to locate 

the recipient’s grievance procedures 

under proposed § 106.8(b)(2), § 106.45, 

and if applicable § 106.46 (proposed 

§ 106.8(c)(1)(v)). 

In proposed § 106.8(c)(2)(i), the 

Department would provide that a 

recipient must prominently include all 

elements of its notice of 

nondiscrimination set out in paragraphs 

(c)(i) through (v) in various materials 

consistent with the existing provision, 

as well as in each announcement, 

bulletin, and application form that it 

makes available to persons entitled to 

notification under proposed § 106.8(c) 

or that are used for recruiting students 

and employees. In proposed 

§ 106.8(c)(2)(ii), the Department 

proposes adding a provision that, if 

necessary due to the format or size of 

any publication referenced in 

§ 106.8(c)(2)(i), the recipient may 

instead comply with § 106.8(c)(2) by 

including in those publications a 

statement that the recipient prohibits 

sex discrimination in any education 

program or activity that it operates and 

that individuals may report concerns or 

questions to the Title IX Coordinator, 

and providing the location of the notice 

on the recipient’s website. 

Reasons: Addition of subparagraphs. 

For clarity, the Department proposes 

revising the heading of this provision, 

and adding proposed § 106.8(c)(1) and 

106.8(c)(2). This would divide the 

proposed regulations into separate 

paragraphs addressing the recipients of 

the notice (proposed § 106.8(c)), the 

‘‘Contents of notice’’ (proposed 

§ 106.8(c)(1)) and the ‘‘Publication of 

notice’’ (proposed § 106.8(c)(2)). 

Persons entitled to notice of 

nondiscrimination. The Department 

proposes maintaining the same group of 

persons entitled to receive notice under 

current § 106.8(a), with the addition of 

‘‘other authorized legal representatives 

of elementary school and secondary 

school students’’ to encompass persons 

who are not parents or guardians, but 

otherwise are authorized to act on 

behalf of students. The Department also 

proposes revising ‘‘legal guardian’’ to 

‘‘guardian’’ for consistency with 

proposed § 106.6(g), which would 

reference the rights of ‘‘a parent, 

guardian, or other authorized legal 

representative.’’ 

Contents of notice of 

nondiscrimination. The Department 

proposes maintaining some of the notice 

requirements in the current regulations 

and adding other requirements in 

proposed § 106.8(c)(1)(i) through (v) to 

ensure that a recipient provides 

adequate notice of nondiscrimination to 

all persons entitled to receive notice of 

this information. The current 

regulations require a recipient to notify 

the persons entitled to receive 

notification under § 106.8(a) of the 

following: (1) the contact information 


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for the recipient’s Title IX Coordinator; 

(2) the recipient is required by Title IX 

and the regulations not to discriminate 

on the basis of sex; (3) the recipient is 

prohibited from engaging in sex 

discrimination in admission and 

employment; (4) persons may contact 

the recipient or the Assistant Secretary 

with inquiries about Title IX or the 

application of the regulations; and (5) 

the recipient’s grievance procedures and 

how to make report or file a complaint 

of sex discrimination, including sexual 

harassment. Although a recipient is 

required under current § 106.8(a) 

through (c) to provide notice of all of 

this information, a recipient is not 

required to include this information in 

a single policy or document. Therefore, 

the Department proposes requiring 

recipients to streamline all of these 

requirements in its notice of 

nondiscrimination to increase the 

likelihood that persons entitled to 

notification of this information are 

aware of their rights under Title IX and 

the regulations. 

The Department proposes moving to 

proposed § 106.8(c)(1)(i) the 

requirement in current § 106.8(b) that a 

recipient include in its notice of 

nondiscrimination a statement that the 

recipient does not discriminate on the 

basis of sex in its education program or 

activity, that it is required by Title IX 

not to discriminate in such a manner, 

and that it also prohibits sex 

discrimination in admission (unless 

subpart C of part 106 does not apply) 

and employment. The Department also 

proposes incorporating with slight 

modifications the requirement from 

current § 106.8(b)(1) into proposed 

§ 106.8(c)(1)(ii) that a recipient notify 

the persons entitled to receive a 

notification under § 106.8(c) that 

inquiries about the application of Title 

IX and the regulations may be made to 

the recipient’s Title IX Coordinator, to 

the Office for Civil Rights, or to both. 

Current § 106.8(b)(1) refers to the 

‘‘Assistant Secretary.’’ The Department 

proposes changing this reference to ‘‘the 

Office for Civil Rights’’ to afford greater 

clarity for recipients and all individuals 

entitled to receive such notification that 

they may contact OCR—in addition to 

or instead of contacting the recipient— 

with any inquiries about Title IX or the 

regulations. 

The Department proposes moving the 

requirement that a recipient provide 

notice of the name or title, office 

address, email address, and telephone 

number of its Title IX Coordinator from 

current § 106.8(a) to proposed 

§ 106.8(c)(1)(iii). The proposed 

regulations would not prohibit a 

recipient from also providing the 

contact information of designees. The 

Department’s current view is that it will 

be less confusing for recipients and all 

persons entitled to receive notice of this 

information if it is included in a single 

notice of nondiscrimination. 

In addition, the Department proposes 

requiring a recipient to include in its 

notice of nondiscrimination and 

grievance procedures information such 

as a web address, a direct link, or an 

explanation of how a hard copy of the 

recipient’s nondiscrimination policy 

and grievance procedures may be 

obtained. By including this information, 

the Department would ensure that all 

persons entitled to notice of this 

information know how they can locate 

a recipient’s nondiscrimination policy 

and grievance procedures on the 

recipient’s website or how they may 

obtain a hard copy of the 

nondiscrimination policy and grievance 

procedures. 

Finally, the Department proposes 

requiring a recipient to explain in its 

notice of nondiscrimination how to 

report information about conduct that 

may constitute sex discrimination under 

Title IX, how to make a complaint of sex 

discrimination under the regulations, 

and how to locate the recipient’s 

grievance procedures under § 106.45, 

and if applicable § 106.46. The 

Department recognizes that some 

individuals may wish to report conduct 

that may constitute sex discrimination 

under Title IX without making a 

complaint that would initiate a 

recipient’s grievance procedures. To 

afford the opportunity for this type of 

reporting, the Department proposes 

requiring a recipient to explain in its 

notice of nondiscrimination that 

reporting such conduct to a recipient’s 

Title IX Coordinator or to specific 

employees as described in proposed 

§ 106.44(c), would obligate a recipient to 

require its Title IX Coordinator to take 

further action consistent with proposed 

§ 106.44(f). 

To ensure that individuals who wish 

to make a complaint that initiates a 

recipient’s grievance procedures know 

how to do so, the Department proposes 

that a recipient include in its notice of 

nondiscrimination clear information 

about sex discrimination and how to 

make a complaint about such 

discrimination, including how to locate 

a recipient’s grievance procedures so 

that a potential complainant 

understands how the process will work 

if initiated. As the Department 

explained in the preamble to the 2020 

amendments, it is important to ensure 

that ‘‘people affected by a recipient’s 

grievance procedures’’ know about the 

grievance procedures and how to 

initiate them. 85 FR 30472–73. The 

Department further emphasizes that 

grievance procedures for investigating 

and resolving sex discrimination 

complaints cannot be prompt or 

equitable unless the parties whose rights 

are addressed through the grievance 

procedures have equitable access to 

them. At a minimum, this means that 

the parties must know that a recipient’s 

grievance procedures exist, how they 

work, and how to make a complaint. 

Therefore, a recipient must ensure that 

its grievance procedures are widely 

disseminated and written in clear, 

accessible, easily understood language 

that is tailored to the age and 

background of those impacted by the 

grievance procedures. 

Although proposed § 106.8(c)(1)(v) is 

similar in substance to current 

§ 106.8(c), which requires a recipient to 

provide persons entitled to a 

notification under § 106.8(a) notice of 

the recipient’s grievance procedures 

including how to report or file a 

complaint of sex discrimination, how to 

report or file a formal complaint of 

sexual harassment, and how the 

recipient will respond, the Department 

proposes changes consistent with the 

rest of its proposed regulations. 

Specifically, proposed § 106.8(c)(1)(v) 

would reflect the removal of the formal 

complaint requirement and instead 

specify that a recipient provide notice of 

its grievance procedures under 

proposed §§ 106.8(b)(2), 106.45, and if 

applicable 106.46, to persons entitled to 

a notification under § 106.8(c), and that 

notice include how to report 

information about conduct that may 

constitute sex discrimination under 

Title IX or make a complaint of sex 

discrimination. The Department also 

proposes eliminating the requirement 

that the notice state how the recipient 

will respond because it is redundant. 

Persons entitled to notice would already 

be informed of the recipient’s grievance 

procedures under proposed 

§§ 106.8(b)(2), 106.45, and if applicable 

106.46, which would explain the 

recipient’s process for responding to 

complaints. 

Publication of notice of 

nondiscrimination. The Department 

proposes clarifying in § 106.8(c)(2) that 

a recipient must prominently include all 

elements of its notice of 

nondiscrimination set out in proposed 

§ 106.8(c)(1)(i) through (v) in its notice. 

The Department proposes further 

clarifying that the types of documents 

used or distributed by a recipient that 

are required to include the information 

set out in proposed § 106.8(c)(1) include 

each announcement, bulletin, and 

application form that the recipient 


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makes available to persons entitled to 

notification under proposed § 106.8(c) 

or otherwise uses for recruiting students 

or employees. As part of the 2020 

amendments, the Department removed 

the previous requirement to include 

Title IX Coordinator and policy 

information in announcements, 

bulletins, and application forms that the 

recipient made available to specific 

persons identified in the regulation or 

otherwise used to recruit students or 

employees, and referred only to the 

recipient’s website, if any, and 

handbooks and catalogs. Upon further 

consideration and reweighing the facts 

and circumstances, the Department 

currently understands that it is 

important that recruitment materials are 

included in the regulations to ensure 

that potential applicants are aware that 

the recipient does not discriminate, how 

to locate a recipient’s nondiscrimination 

policy and the Title IX Coordinator’s 

contact information when deciding 

whether to apply to or attend a 

recipient’s education program or 

activity. The Department also now 

believes that restoring the requirement 

to include this information in each 

announcement, bulletin, and 

application form used generally or in 

connection with recruitment would 

increase awareness regarding the Title 

IX Coordinator and policy information 

by reaching additional individuals at 

various points throughout the year. In 

addition, providing this information in 

recruitment materials would assist any 

potential applicants in understanding 

and locating the recipient’s 

nondiscrimination policy and grievance 

procedures and in providing a point of 

contact within the recipient’s 

organization if needed regarding an 

experience of sex discrimination during 

the recipient’s recruitment process. 

In light of the different types of 

materials a recipient may use in 

connection with recruitment (such as 

pamphlets, flyers, or postcards), and the 

fact that some of these are space-limited, 

the Department proposes minimizing 

the burden on a recipient by allowing an 

option for the recipient to comply with 

respect to these publications by 

providing a website reference to where 

the notice of nondiscrimination is found 

under proposed § 106.8(c)(2)(ii). This 

option would not apply to materials on 

websites and, in the vast majority of 

cases, would not apply to printed 

publications such as handbooks or 

catalogs, since those would have 

sufficient space to include at least one 

single and complete reference to the 

notice of nondiscrimination in at least 

one location on the website or in the 

handbook or catalog. 

Section 106.8(d) Training 

Current regulations: Section 

106.45(b)(1)(iii) addresses a recipient’s 

responsibility to provide training in 

connection with its obligation to 

respond to sexual harassment. 

Specifically, current § 106.45(b)(1)(iii) 

requires a recipient to ensure that its 

Title IX Coordinator, investigators, 

decisionmakers, and any person who 

facilitates an informal resolution 

process receives training on the 

definition of ‘‘sexual harassment’’ in 

current § 106.30, the scope of the 

recipient’s education program or 

activity, how to conduct an 

investigation and grievance process 

including hearings, appeals, and 

informal resolution processes, as 

applicable, and how to serve 

impartially, including by avoiding 

prejudgment of the facts at issue, 

conflicts of interest, and bias. It also 

requires a recipient to ensure that 

decisionmakers receive training on any 

technology to be used at a live hearing 

and on issues of relevance of questions 

and evidence, including when questions 

and evidence about the complainant’s 

sexual predisposition or prior sexual 

behavior are not relevant. Finally, 

current § 106.45(b)(1)(iii) requires a 

recipient to ensure that investigators 

receive training on issues of relevance to 

create an investigative report that fairly 

summarizes relevant evidence. Under 

the current regulations, training 

materials must not rely on sex 

stereotypes and must promote impartial 

investigations and adjudications of 

formal complaints of sexual harassment. 

Proposed regulations: The 

Department proposes § 106.8(d) as a 

new section to consolidate the 

recipient’s training requirements under 

Title IX. Specifically, the recipient must 

provide training as follows, ensuring 

that training does not rely on sex 

stereotypes and that individuals receive 

training related to their responsibilities. 

Proposed § 106.8(d)(1) would require 

that all employees be trained on the 

recipient’s obligation to address sex 

discrimination in its education program 

or activity, the scope of conduct that 

constitutes sex discrimination, 

including the proposed definition of 

‘‘sex-based harassment,’’ and all 

applicable notification and information 

requirements under proposed 

§§ 106.40(b)(2) and 106.44. 

Proposed § 106.8(d)(2) would require 

investigators, decisionmakers, and other 

persons who are responsible for 

implementing the recipient’s grievance 

procedures or have the authority to 

modify or terminate supportive 

measures under proposed § 106.44(g)(4) 

to be trained, to the extent related to 

their responsibilities, on each of the 

following: 

• The topics listed in proposed 

§ 106.8(d)(1); 

• The recipient’s obligations under 

proposed § 106.44; 

• The recipient’s grievance 

procedures under proposed § 106.45, 

and if applicable proposed § 106.46; 

• How to serve impartially, including 

by avoiding prejudgment of the facts at 

issue, conflicts of interest, and bias; and 

• The meaning and application of the 

term ‘‘relevant,’’ in relation to questions 

and evidence, and the types of evidence 

that are impermissible regardless of 

relevance under proposed § 106.45, and 

if applicable proposed § 106.46. 

Proposed § 106.8(d)(3) would require 

facilitators of an informal resolution 

process as described in proposed 

§ 106.44(k) to be trained on the topics 

listed in proposed § 106.8(d)(1), the 

rules and practices associated with the 

recipient’s informal resolution process, 

and on how to serve impartially, 

including by avoiding conflicts of 

interest and bias. 

Proposed § 106.8(d)(4) would require 

the Title IX Coordinator and any 

designees to be trained on: 

• All of the topics listed in proposed 

§ 106.8(d)(1) through (3); 

• Their specific responsibilities under 

§§ 106.8(a), 106.40(b)(3), 106.44(f), and 

106.44(g); 

• The recipient’s recordkeeping 

system and the requirements of 

§ 106.8(f); and 

• Any other training necessary to 

coordinate the recipient’s compliance 

with Title IX. 

Reasons: The Department has 

reviewed the training requirements in 

the current regulations and proposes 

that, to best fulfill Title IX’s 

nondiscrimination mandate, appropriate 

staff training related to Title IX must 

cover more than the grievance 

procedures for sexual harassment. Many 

of the requirements of current 

§ 106.45(b)(1)(iii) are included in 

proposed § 106.8(d), including the 

requirement that trainings not rely on 

sex stereotypes. The Department 

proposes adding § 106.8(d) to make 

clear that employees must receive 

training on a variety of aspects of Title 

IX that are relevant and critical to their 

specific roles. The proposed provision 

combines all proposed staff training 

requirements for easy accessibility and 

lists requirements according to 

employees’ particular responsibilities. 

This would help a recipient ensure it is 


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appropriately training staff for each 

position. 

Proposed § 106.8(d)(1) would first 

specify training requirements for all 

employees and would cover a 

recipient’s confidential employees, nonconfidential employees, and studentemployees. This all-employee training 

requirement would serve an important 

purpose of ensuring that those most 

likely to interact with students in their 

day-to-day work (such as teachers, 

professors, and student-facing staff) as 

well as with other employees have the 

training necessary to understand their 

role in ensuring the recipient’s 

compliance with its Title IX obligations. 

This would include the scope of 

conduct that constitutes sex 

discrimination, including the definition 

of ‘‘sex-based harassment,’’ how to 

respond consistent with proposed 

§ 106.40(b)(2) to information about a 

student’s pregnancy or related 

conditions, and how to respond 

consistent with proposed § 106.44 to 

information about conduct that may 

constitute sex discrimination under 

Title IX. 

Proposed § 106.8(d)(2) would require 

investigators, decisionmakers, and other 

persons who are responsible for 

implementing the recipient’s grievance 

procedures or have the authority to 

modify or terminate supportive 

measures in proposed § 106.44(g)(4) to 

be trained on certain topics, to the 

extent related to their responsibilities. 

The group covered by this training 

requirement would be broader than 

current § 106.45(b)(iii) in that it 

includes persons who are not 

investigators, decisionmakers, or 

coordinators, but are responsible for 

implementing the recipient’s grievance 

procedures or have the authority to 

modify or terminate supportive 

measures. This proposed clarification is 

meant to ensure that all persons who are 

involved in the investigation and 

resolution of a Title IX complaint are 

properly trained. The Department 

proposes moving the training 

requirements for facilitators of informal 

resolutions to a separate section to 

better reflect the unique responsibilities 

of that role. 

Proposed § 106.8(d)(2) would require 

investigators, decisionmakers, and other 

persons who are responsible for 

implementing the recipient’s grievance 

procedures or have the authority to 

modify or terminate supportive 

measures under proposed § 106.44(g)(4) 

to be trained on many of the same topics 

as are required in current 

§ 106.45(b)(iii), including the definition 

of prohibited ‘‘sex-based harassment,’’ 

the recipient’s grievance procedures, 

how to serve impartially, and how to 

assess the relevance of questions and 

evidence. Proposed § 106.8(d)(2) would 

also add additional topics, including the 

core elements included in training for 

all employees under proposed 

§ 106.8(d)(1) and the recipient’s 

obligations under proposed § 106.44. It 

would also apply the existing training 

requirement of § 106.45(b)(iii) on issues 

of relevance more generally because 

relevancy considerations are not limited 

to an investigative report and arise 

throughout an investigation. The 

Department also proposes that this 

training would include training on the 

types of questions and evidence that 

that are impermissible regardless of 

relevance. The Department believes 

these topics would be important for 

those persons who are responsible for 

implementing the recipient’s grievance 

procedures or have the authority to 

modify or terminate supportive 

measures to understand their 

responsibilities as part of the recipient’s 

Title IX compliance efforts. 

The Department also proposes 

removing certain named topics from 

current § 106.45(b)(1)(iii). The 

Department has not proposed training 

on ‘‘the scope of the recipient’s 

education program or activity’’ as an 

express, separate topic because this 

should be covered by the obligation to 

provide training on the recipient’s 

obligation to address sex discrimination 

in its education program or activity in 

proposed § 106.8(d)(1). Similarly, the 

specific requirement in current 

§ 106.45(b)(iii) to provide training on 

‘‘how to conduct an investigation and 

grievance process including hearings, 

appeals, and informal resolution 

processes’’ would be covered by the 

proposed requirement in proposed 

§ 106.8(d)(2) to provide training on ‘‘the 

recipient’s obligations under § 106.44’’ 

and ‘‘the recipient’s grievance 

procedures as described in § 106.45, and 

if applicable § 106.46.’’ 

The current regulations, at 

§ 106.45(b)(1)(iii), also require training 

on any technology to be used at a live 

hearing. The proposed regulations 

would permit the use of technology to 

conduct live hearings with the parties in 

separate locations. Unlike the current 

regulations, the Department proposes 

removing the requirement that the 

decisionmaker personally receive 

technology training; however, a 

recipient would be responsible for 

ensuring that technology used during 

any live hearing enables the 

decisionmaker and parties to 

simultaneously see and hear the party or 

witness while that person is speaking or 

communicating in another format. 

Accordingly, the proposed regulations 

would require that the technology 

operate effectively as required but not 

that the decisionmaker serve as the 

operator of the technology. 

Proposed § 106.8(d)(3) would set 

special training requirements for 

facilitators of an informal resolution 

process under proposed § 106.44(k), 

including the core elements included in 

training for all employees under 

proposed § 106.8(d)(1), as well as 

training on the rules and practices 

associated with the recipient’s informal 

resolution process and on how to serve 

impartially, including by avoiding 

conflicts of interest and bias. Proposed 

§ 106.8(d) would not require facilitators 

of informal resolution to be trained on 

the recipient’s grievance procedures or 

on prejudgment of the facts at issue 

because a facilitator is not responsible 

for implementing the recipient’s 

grievance procedures and is not engaged 

in factfinding, so training on those 

topics would not be appropriate for a 

facilitator of an informal resolution 

process in the way it would be for a 

decisionmaker or investigator. 

Lastly, proposed § 106.8(d)(4) would 

require the Title IX Coordinator and any 

designees to be trained on all topics 

required under proposed § 106.8(d)(1) 

through (3), as well as their specific 

responsibilities under proposed 

§§ 106.8(a), 106.40(b)(3), 106.44(f), and 

106.44(g), the recipient’s recordkeeping 

system and the requirements of 

proposed § 106.8(f), and any other 

training necessary to coordinate the 

recipient’s compliance with Title IX. 

Because of the central role of the Title 

IX Coordinator under the current and 

proposed regulations, training of the 

Title IX Coordinator is critical to a 

recipient’s effective compliance with 

Title IX. The Department proposes the 

broadest training requirement for the 

Title IX Coordinator because the person 

in that role should understand all 

aspects of the recipient’s Title IX 

compliance program, including their 

own roles and responsibilities and the 

roles and responsibilities of all other 

employees. 

Section 106.8(e) Students With 

Disabilities 

Current regulations: None. 

Proposed regulations: The 

Department proposes adding a new 

paragraph that addresses the potential 

intersection of Federal disability law 

with Title IX in the elementary school, 

secondary school, and postsecondary 

institution contexts. Proposed § 106.8(e) 

would provide clarification regarding 

the alignment of Title IX compliance 

with the requirements of the Individuals 


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with Disabilities Education Act (IDEA) 

and Section 504 of the Rehabilitation 

Act of 1973 (Section 504) throughout 

the recipient’s implementation of 

grievance procedures as discussed in 

§ 106.45, and if applicable § 106.46. The 

Department proposes requiring that if a 

complainant or respondent is an 

elementary or secondary student with a 

disability, the Title IX Coordinator must 

consult with that student’s 

Individualized Education Program (IEP) 

team or group of persons knowledgeable 

about the student under Section 504 

(Section 504 team). Further, the 

Department proposes adding that for a 

postsecondary student with a disability, 

the Title IX Coordinator may consult, as 

appropriate, with the individual or 

office that the recipient has designated 

to provide support to students with 

disabilities. 

Reasons: Students with disabilities 

experience sex-based harassment in 

significant numbers, with certain 

populations of students with disabilities 

at higher risk, as the Department has 

recognized previously, including in the 

preamble to the 2020 amendments. 85 

FR 30079. For these students, 

supportive measures that address the 

harassment’s effects in relation to a 

student’s disability may require 

tailoring in ways that may not be 

obvious to a Title IX Coordinator. In 

addition, in cases in which students 

with disabilities are respondents, care 

must be taken that any supportive 

measures are adopted with awareness of 

how they might impact the students’ 

equal access to the recipient’s education 

program or activity. Similarly, the rights 

of students with disabilities under the 

Federal laws cited in the proposed 

provision may preclude or require 

tailoring of otherwise appropriate 

supportive measures or emergency 

removals, or, for students found 

responsible for sex-based harassment, 

disciplinary sanctions. To help 

elementary school and secondary school 

recipients and their Title IX 

Coordinators comply with the proposed 

regulations and not interfere with rights 

of students with disabilities under other 

Federal laws, the Department proposes 

that the regulations make clear the Title 

IX Coordinator has the responsibility to 

consult with the IEP team and Section 

504 team who are already charged by 

Federal law with making individualized 

decisions about students with 

disabilities. 

In the elementary school and 

secondary school context, the IDEA and 

Section 504 ensure protections for 

students with disabilities. There are 

distinctions among the rights granted 

and procedures required by each statute 

that are crucial in other contexts. For 

purposes of the proposed regulations, 

however, it is only necessary to note 

that the implementing regulations for 

the IDEA and Section 504 require that 

a group of persons—the IEP team or 

Section 504 team—is responsible for 

making individualized determinations 

about what constitutes a free 

appropriate public education (FAPE) for 

each child with a disability. 34 CFR 

300.17; 34 CFR 104.33. The team must 

address, among many other things, 

questions regarding the placement, 

special education, and related services 

that are appropriate for that student. 34 

CFR 300.300 through 300.328; 34 CFR 

104.34 through 104.36. 

For an elementary or secondary 

student complainant or respondent who 

is a student with a disability, the Title 

IX grievance procedures may intersect 

with the decisions, including those 

about FAPE, made by the IEP team or 

Section 504 team. A student with a 

disability involved in a Title IX 

proceeding would best be served by the 

Title IX Coordinator consulting the 

student’s IEP team or Section 504 team 

throughout the implementation of the 

grievance procedures described in 

proposed § 106.45, as well as in the offer 

and coordination of any supportive 

measures as described in proposed 

§ 106.44(g)(7). For this reason, the 

Department proposes making this 

consultation with the IEP team or 

Section 504 team a requirement for an 

elementary or secondary student 

complainant or respondent who is a 

student with a disability. This 

consultation should be carried out with 

an understanding of the sensitivity of 

the issues involved and a priority on 

preserving the confidentiality of the 

student and other parties involved to 

the extent possible. 

Federal law does not grant students 

with disabilities in higher education any 

similar right to a team of knowledgeable 

persons coming together to make 

individualized FAPE decisions. Under 

Section 504, a postsecondary student 

with a disability does not have to 

disclose that they have a disability. 

Generally, if a student with a disability 

would like an academic adjustment or 

other modification related to their 

disability, they must provide 

information related to their disability to 

the postsecondary institution, and the 

institution must then consider their 

request. Because of those differences, 

including that a student with a 

disability may not have established a 

voluntary relationship with the 

postsecondary institution’s office that 

serves students with disabilities, the 

Department proposes that the 

consultation between a Title IX 

Coordinator and the postsecondary 

institution’s disability services office 

should be permitted but not required. 

Section 106.8(f) Recordkeeping 

Current regulations: Section 

106.45(b)(10)(i) requires a recipient to 

maintain the following records for a 

period of seven years: each sexual 

harassment investigation including any 

determination regarding responsibility 

and any audio or audiovisual recording 

or transcript required under paragraph 

(b)(6)(i) of this section; any disciplinary 

sanctions imposed on the respondent; 

any remedies provided to the 

complainant designed to restore or 

preserve equal access to the recipient’s 

education program or activity; any 

appeals and the result therefrom, any 

informal resolution and the result 

therefrom; and all materials used to 

train Title IX Coordinators, 

investigators, decisionmakers, and any 

person who facilitates an informal 

resolution process. A recipient must 

make these training materials publicly 

available on its website, or if the 

recipient does not maintain a website, 

the recipient must make these materials 

available upon request for inspection by 

members of the public. 

For each response required under 

§ 106.44, current § 106.45(b)(10)(ii) 

requires a recipient to create and 

maintain for a period of seven years: 

records of any actions, including 

supportive measures, taken in response 

to a report or formal complaint of sexual 

harassment. It further requires a 

recipient to document the basis for its 

conclusion that its response was not 

deliberately indifferent, and document 

that it has taken measures designed to 

restore or preserve equal access to the 

recipient’s education program or 

activity. If a recipient does not provide 

a complainant with supportive 

measures, current § 106.45(b)(10)(ii) 

requires the recipient to document the 

reasons why such a response was not 

clearly unreasonable in light of the 

known circumstances. The 

documentation of certain bases or 

measures does not limit the recipient in 

the future from providing additional 

explanations or detailing additional 

measures taken. 

Proposed regulations: The 

Department proposes moving the 

recordkeeping requirements to 

§ 106.8(f), broadening them to cover 

records related to a recipient’s actions in 

response to all forms of sex 

discrimination, not only sexual 

harassment, and maintaining the sevenyear retention period for records and the 

general types of records described in the 


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current regulations. The Department 

proposes revising the description of the 

records a recipient is required to 

maintain to align with the other 

proposed changes to the regulations. 

The Department also proposes removing 

current § 106.45(b)(10)(ii) requiring a 

recipient to maintain records 

documenting that its response was not 

deliberately indifferent and that its 

decision not to provide a complainant 

with supportive measures was not 

clearly unreasonable in light of the 

known circumstances because these 

types of records would no longer be 

applicable under the proposed 

regulations at § 106.44, which would no 

longer refer to a deliberate indifference 

standard. 

Consistent with the Department’s 

proposed clarification of a recipient’s 

duty to prevent discrimination and 

ensure equal access for students and 

employees in connection with 

pregnancy or related conditions, the 

Department proposes revising the 

recordkeeping requirement to include 

records documenting the actions the 

recipient took to meet its obligations 

under proposed §§ 106.40 and 106.57. 

In addition, the Department proposes 

retaining the requirement that a 

recipient must retain records of certain 

training materials but broadening the 

scope of the training materials to cover 

all forms of sex discrimination, 

including but not limited to sexual 

harassment, consistent with proposed 

§ 106.8(d). 

The Department also proposes 

retaining the requirement that a 

recipient make these training materials 

publicly available on its website, or if 

the recipient does not maintain a 

website, the recipient must make these 

materials available upon request for 

inspection by members of the public. 

The Department proposes broadening 

the scope of the training materials that 

must be posted on the recipient’s 

website or made available upon request 

to cover all forms of sex discrimination, 

not just sexual harassment, consistent 

with proposed § 106.8(d). 

Proposed § 106.8(f)(1) would require 

each recipient to maintain, for a period 

of seven years: 

• For each complaint of sex 

discrimination, records documenting 

the informal resolution process under 

proposed § 106.44(k) or the grievance 

procedures under proposed § 106.45, 

and if applicable proposed § 106.46, and 

the resulting outcome; 

• For each incident of conduct that 

may constitute sex discrimination under 

Title IX of which the Title IX 

Coordinator was notified, records 

documenting the actions the recipient 

took to meet its obligations under 

proposed § 106.44; 

• All materials used to provide 

training under proposed § 106.8(d). A 

recipient would be required to make 

these training materials publicly 

available on its website, or if the 

recipient does not maintain a website 

the recipient would be required to make 

these materials available upon request 

for inspection by members of the public; 

and 

• All records documenting the 

actions the recipient took to meet its 

obligations under proposed §§ 106.40 

and 106.57. 

Reasons: After reevaluating the issues 

covered by the current recordkeeping 

requirements, the Department proposes 

revising the requirements to ensure that 

they address the full scope of a 

recipient’s obligation to respond to 

complaints of sex discrimination under 

Title IX. The Department’s current 

regulations do not address the types of 

records, if any, a recipient is required to 

maintain regarding complaints of sex 

discrimination other than sexual 

harassment. 

The Department proposes maintaining 

the requirement in the current 

regulations related to the general types 

of records that must be kept and 

maintaining the seven-year record 

retention period, while eliminating the 

specificity in the types of records each 

recipient is required to maintain. This 

proposed change corresponds with 

proposed changes elsewhere in the 

proposed regulations regarding a 

recipient’s obligations to respond to 

complaints of sex discrimination under 

Title IX. For example, when a recipient 

uses its grievance procedures under 

proposed § 106.45, and if applicable 

proposed § 106.46, to meet its 

obligations under proposed § 106.44, the 

recipient would be required to maintain 

records of that process, which would 

include some of the same records 

currently required under 

§ 106.45(b)(10)(i)(A). In addition, 

consistent with current 

§ 106.45(b)(10)(i)(C), proposed 

§ 106.8(f)(1) would require a recipient to 

maintain records of its informal 

resolution process under proposed 

§ 106.44(k), if it uses that process to 

meet its obligations under proposed 

§ 106.44. The Department’s statement in 

the preamble to the 2020 amendments 

‘‘that while the final regulations require 

records to be kept for seven years, 

nothing in the final regulations prevents 

recipients from keeping their records for 

a longer period of time if the recipient 

wishes or due to other legal obligations’’ 

would also continue to apply under the 

proposed regulations. 85 FR 30411. 

The Department also proposes 

removing the records described in 

current § 106.45(b)(10)(ii) that relate to a 

recipient’s demonstrating its 

compliance with the deliberate 

indifference standard from the 

recordkeeping requirement because 

those requirements would no longer be 

relevant under the proposed regulations 

which, as explained in the discussion of 

proposed § 106.44, would remove the 

deliberate indifference standard. The 

recordkeeping requirement related to 

supportive measures in 

§ 106.45(b)(10)(ii) of the current 

regulations, although still applicable 

under the proposed regulations, is 

covered by records discussed in 

proposed § 106.8(f)(2), which would 

require a recipient to maintain records 

of the actions the recipient took to meet 

its obligations under § 106.44. As 

explained in the discussion of proposed 

§ 106.44(g), these actions would include 

offering supportive measures, as 

appropriate, to the complainant and 

respondent. 

For the same reasons discussed above 

regarding the modification of the 

recordkeeping requirement to cover all 

sex discrimination, including but not 

limited to sexual harassment, consistent 

with Title IX, the Department proposes 

revising the requirement in current 

§ 106.45(b)(10)(i)(D) to require a 

recipient to maintain all training 

materials used to provide training on 

sex discrimination, including sexual 

harassment, under § 106.8(d). Under 

proposed § 106.8(f)(3), a recipient would 

also be required to publicly post these 

materials on its website consistent with 

current § 106.45(b)(10)(i)(D), or if the 

recipient does not maintain a website, to 

make these materials available upon 

request for inspection to members of the 

public. 

Finally, under proposed § 106.8(f)(4), 

the Department proposes requiring a 

recipient to maintain all records 

documenting the actions the recipient 

took to meet its obligations under 

proposed §§ 106.40 and 106.57 

regarding students and employees who 

are pregnant or experiencing pregnancyrelated conditions. This would ensure 

that OCR is able to assess a recipient’s 

compliance with those obligations, 

including but not limited to, the 

implementation of reasonable 

modifications and provision of lactation 

space for students because of pregnancy 

or related conditions under proposed 

§ 106.40(b)(3) and (4), and the provision 

of lactation time and space for 

employees under proposed § 106.57(e). 


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E. Action by a Recipient To Operate Its 

Education Program or Activity Free 

From Sex Discrimination 

Section 106.44(a) General 

Current regulations: Section 106.30(a) 

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 any employee of an 

elementary and secondary school 

recipient. Imputation of knowledge 

based solely on vicarious liability or 

constructive notice is insufficient to 

constitute actual knowledge. This 

standard is not met when the only 

official of the recipient with actual 

knowledge is the respondent. The mere 

ability or obligation to report sexual 

harassment or to inform a student about 

how to report sexual harassment, or 

having been trained to do so, does not 

qualify an individual as one who has 

authority to institute corrective 

measures on behalf of the recipient. 

Notice as used in this paragraph 

includes but is not limited to, a report 

of sexual harassment to the Title IX 

Coordinator as described in § 106.8(a). 

The regulations require a recipient to 

respond to sexual harassment or 

allegations of sexual harassment only if 

it has actual knowledge. 

Current § 106.44(a) states that a 

recipient with actual knowledge of 

sexual harassment in its education 

program or activity against a person in 

the United States must respond 

promptly in a manner that is not 

deliberately indifferent. That provision 

further states a recipient is deliberately 

indifferent only if its response to sexual 

harassment is clearly unreasonable in 

light of known circumstances. 

Proposed regulations: Proposed 

§ 106.44(a) states that a recipient must 

take prompt and effective action to end 

any sex discrimination that has 

occurred in its education program or 

activity, prevent its recurrence, and 

remedy its effects, and it clarifies that to 

ensure it can satisfy this obligation, the 

recipient must comply with proposed 

§ 106.44. 

Reasons: A recipient’s duty to operate 

its education program or activity free 

from sex discrimination. Title IX 

prohibits all forms of sex discrimination 

in a recipient’s education program or 

activity. In the 2020 amendments, the 

Department added a requirement at 34 

CFR 106.44(a) 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 promptly 

in a manner that is not deliberately 

indifferent.’’ In doing so, the 

Department extended and adapted the 

Gebser/Davis framework from private 

litigation for monetary damages to the 

context of administrative enforcement of 

Title IX. See, e.g., 85 FR 30038, 30088 

(noting that the 2020 amendments 

‘‘apply an adapted condition of actual 

knowledge’’ and a deliberate 

indifference standard that was ‘‘adapted 

from the Gebser/Davis framework’’). In 

discussing the actual knowledge 

standard in the preamble to the 2020 

amendments, the Department stated that 

‘‘[b]ecause Title IX is a statute ‘designed 

primarily to prevent recipients of 

Federal financial assistance from using 

the funds in a discriminatory manner,’ 

it is a recipient’s own misconduct—not 

the sexually harassing behavior of 

employees, students, or other third 

parties—that subjects the recipient to 

liability in a private lawsuit under Title 

IX, and the recipient cannot commit its 

own misconduct unless the recipient 

first knows of the sexual harassment 

that needs to be addressed.’’ Id. at 30038 

(quoting Gebser, 524 U.S. at 292) 

(footnotes and emphasis omitted). The 

Department added that ‘‘[t]he Supreme 

Court thus rejected theories of vicarious 

liability (e.g., respondeat superior) and 

constructive notice as the basis for a 

recipient’s Title IX liability in private 

Title IX lawsuits.’’ Id. (citing Gebser, 

524 U.S. at 289; Davis, 526 U.S. at 650). 

With respect to deliberate indifference 

as the appropriate standard of liability 

for administrative enforcement, the 

Department stated in the preamble to 

the 2020 amendments that the 

‘‘adaptions of the three-part Gebser/ 

Davis framework achieve important 

policy objectives that arise in the 

context of a school’s response to reports, 

allegations, or incidents of sexual 

harassment in a school’s education 

program or activity, including respect 

for freedom of speech and academic 

freedom, respect for complainants’ 

autonomy, protection of complainants’ 

equal educational access while 

respecting the decisions of State and 

local educators to determine appropriate 

supportive measures, remedies, and 

disciplinary sanctions, consistency with 

constitutional due process and 

fundamental fairness, and clear legal 

obligations that enable robust 

administrative enforcement of Title IX 

violations.’’ Id. at 30035. 

The Department remains committed 

to these objectives: respect for freedom 

of speech and academic freedom; 

respect for complainants’ autonomy; 

protection of complainants’ equal 

educational access while respecting the 

decisions of recipients to determine 

appropriate supportive measures, 

remedies, and disciplinary sanctions; 

consistency with constitutional due 

process and fundamental fairness; and 

clear legal obligations that enable robust 

administrative enforcement of Title IX 

violations. Further, the Department’s 

tentative view is that the proposed 

revisions to § 106.44 would effectively 

achieve these objectives while better 

ensuring that all recipients fulfill the 

Title IX mandate to provide a 

nondiscriminatory educational 

environment. As explained in greater 

detail in the discussion of the proposed 

definition of ‘‘sex-based harassment’’ 

(§ 106.2), the Department also holds the 

tentative position that the 

administrative enforcement standard set 

out in the proposed regulations would 

adequately and fully address the 

particular concerns regarding free 

speech and academic freedom that the 

Department discussed in the 2020 

amendments in connection with its 

standard for enforcing Title IX. 

The Department recognized in the 

preamble to the 2020 amendments that 

there are important differences between 

judicial and administrative enforcement 

for purposes of effectuating Title IX’s 

nondiscrimination mandate and noted 

that ‘‘some violations of Title IX may 

lend themselves to the administrative 

remedy of terminating Federal financial 

assistance, while other violations may 

lend themselves to a judicial remedy in 

private litigation.’’ Id. at 30032 (citing 

Cannon, 441 U.S. at 704–06). More 

specifically, OCR’s focus in the 

administrative enforcement context is 

on a recipient’s responsibility under the 

nondiscrimination requirements of the 

Title IX statute and regulations to take 

prompt and effective action to prevent, 

eliminate, and remedy sex 

discrimination occurring in its programs 

or activities, while a court’s focus is on 

a school’s liability to compensate a 

person who suffered harm as a result of 

the school’s action or inaction. 

OCR received feedback from 

stakeholders during the June 2021 Title 

IX Public Hearing and in listening 

sessions both in support of and in 

opposition to the references to actual 

knowledge and the deliberate 

indifference standard in the 2020 

amendments. For example, OCR heard 

from stakeholders who supported the 

‘‘actual knowledge’’ definition or who 

wanted the definition of ‘‘notice’’ to be 

narrowed even further. On the other 

hand, OCR also received feedback from 

stakeholders expressing concern about 

the narrowness of the actual knowledge 

standard. These stakeholders urged the 

Department to return to the constructive 

knowledge standard set out in OCR’s 


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prior guidance. Stakeholders also 

expressed concern that the actual 

knowledge standard enables a recipient 

to ignore sexual harassment simply 

because allegations of harassing conduct 

were not reported to the right employee. 

OCR also heard from stakeholders 

since the 2020 amendments went into 

effect asking the Department to 

reconsider the application of the 

standard of liability for private actions 

for monetary damages to a recipient’s 

obligation to respond to sexual 

harassment in the administrative 

enforcement context. A variety of 

stakeholders representing all 

educational levels, including 

elementary school and secondary school 

administrators, representatives from 

postsecondary institutions, Title IX 

Coordinators, State Attorneys General, 

and advocacy organizations, expressed 

concern that the deliberate indifference 

standard is inappropriate in the 

administrative enforcement context. 

Stakeholders stated that the deliberate 

indifference standard erodes efforts to 

promote and nurture institutional trust 

by appearing to hold schools to a lower 

standard and could be construed to 

deprive OCR of critical enforcement 

authority, including the ability to 

address sex discrimination before it 

rises to the level of the recipient being 

held liable for money damages in 

private lawsuits. In addition, other 

stakeholders explained that it is difficult 

for recipients to implement the 

deliberate indifference standard for 

sexual harassment in cases that also 

raise discrimination on other bases, 

such as race and disability, in which the 

Department has retained its 

longstanding standard that looks to the 

reasonableness of a recipient’s response 

as the appropriate standard for 

administrative enforcement. They 

argued that by maintaining uniform 

standards across civil rights statutes, the 

Department would reduce confusion 

and strengthen enforcement in 

addressing such intersectional claims. 

In addition to the difficulty associated 

with requiring recipients to navigate 

different policies, stakeholders noted 

that the Department’s application of a 

different standard of liability for sexual 

harassment than for other forms of 

discrimination raises questions 

regarding equity, specifically as to why 

the Department requires recipients to 

meet a less stringent standard for 

responding to complaints about sexual 

harassment than for complaints of other 

types of prohibited harassment and 

discrimination, including sex 

discrimination. 

The Department acknowledged in the 

preamble to the 2020 amendments that 

‘‘[n]either Gebser nor Davis indicated 

whether the Department’s 

administrative enforcement of Title IX 

should continue to turn on vicarious 

liability and constructive notice.’’ Id. at 

30038. The preamble to the 2020 

amendments further acknowledged that 

Gebser and Davis did not require the 

Department to adopt deliberate 

indifference as the standard of liability 

in the administrative enforcement 

context. Id. at 30043. As explained in 

greater detail in the discussion of OCR’s 

Guidance and Supreme Court Precedent 

on Title IX’s Application to Sexual 

Harassment (Section II.B.1), the 

Supreme Court explicitly acknowledged 

the authority of Federal agencies, such 

as the Department, to ‘‘promulgate and 

enforce requirements that effectuate 

[Title IX’s] nondiscrimination 

mandate,’’ even in circumstances that 

would not give rise to a claim for money 

damages. Gebser, 524 U.S. at 292. The 

Department thus explained in the 

preamble to the 2020 amendments that 

it ‘‘adopt[ed] the actual knowledge 

condition from the Gebser/Davis 

framework,’’ even though the 

Department was not required to do so, 

and acknowledged that it had adapted 

that standard, stating that it was 

‘‘tak[ing] into account the different 

needs and expectations of students in 

elementary and secondary schools, and 

in postsecondary institutions, with 

respect to sexual harassment and sexual 

harassment allegations.’’ 85 FR 30038. 

The Department further explained that 

it chose to invoke deliberate 

indifference as an apparent threshold 

for the Department’s administrative 

enforcement of Title IX with certain 

modifications, even though it was not 

required to do so under either Gebser or 

Davis, because it viewed this standard 

as ‘‘the best policy approach to further 

Title IX’s non-discrimination mandate.’’ 

Id. at 30043. 

The Department’s longstanding 

position is that it cannot compel a 

recipient to comply with Title IX—for 

example by terminating Federal funds 

from the recipient—simply because an 

official identified in the ‘‘actual 

knowledge’’ definition of the current 

regulations (e.g., an elementary school 

teacher or bus driver) knew of sexual 

harassment and failed to tell the 

recipient’s Title IX administrators about 

it, with the result that the school failed 

to promptly and effectively respond. 

This is consistent with OCR’s practice 

when it seeks to administratively 

enforce the Department’s Title IX 

regulations through an investigation or 

compliance review. OCR begins by 

providing notice to the recipient of the 

allegations of potential Title IX 

violations it is investigating; if OCR 

finds a violation, OCR is required to 

seek voluntary corrective action from 

the recipient before pursuing fund 

termination or other enforcement 

mechanisms. 20 U.S.C. 1682; 34 CFR 

100.7(d) (incorporated through 34 CFR 

106.81); see also Gebser, 524 U.S. at 

287–89; 2001 Revised Sexual 

Harassment Guidance at iii–iv. In the 

administrative enforcement process, 

OCR provides notice of the alleged sex 

discrimination to the recipient, as well 

as an opportunity for the recipient to 

take appropriate corrective action at 

multiple stages during the process. 

Notwithstanding that a recipient 

cannot be liable for monetary damages, 

or be subject to administrative 

enforcement, unless and until officials 

with authority to take corrective action 

are made aware of the problem and fail 

to adequately respond, because Title IX 

provides that ‘‘[n]o 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), 

a recipient has a legal duty to operate 

its education program or activity free 

from sex discrimination at all times. 

This legal duty to operate its education 

program or activity in a manner in 

which people are not subjected to sex 

discrimination exists regardless of who 

has notice of any discriminatory 

conduct. It also covers all forms of sex 

discrimination and is not limited just to 

sexual harassment. Thus, proposed 

§ 106.44(a) would require a recipient to 

take prompt and effective action to end 

any sex discrimination in its education 

program or activity, prevent its 

recurrence, and remedy its effects, 

consistent with the statutory text. This 

requirement would include situations in 

which a recipient determines that a 

respondent’s conduct violated its 

prohibition on sex discrimination, 

which would amount to a determination 

that sex discrimination had occurred, as 

explained in the discussion of the 

proposed definition of ‘‘respondent’’ 

(§ 106.2). This requirement would also 

include situations in which a recipient 

reviews its own actions in response to 

a complaint and determines that it 

discriminated based on sex in its policy 

or practice. For example, proposed 

§ 106.44(a) would require a recipient to 

provide remedies as appropriate to a 

student who experienced discrimination 

as a result of another student violating 

its prohibition on sex discrimination 

and prevent the recurrence of that 


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discrimination. Likewise, if a recipient 

determines that it did not provide a 

required modification to a pregnant 

student or discriminated based on sex in 

the provision of athletic opportunities, 

it would be required under proposed 

§ 106.44(a) to provide remedies for its 

own discrimination based on sex and 

take additional action as needed to 

prevent recurrence. 

Current § 106.44(a) states 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 promptly in a manner that 

is not deliberately indifferent’’ and 

provides that the recipient’s ‘‘Title IX 

Coordinator must promptly contact the 

complainant to discuss the availability 

of supportive measures’’ and ‘‘explain to 

the complainant the process for filing a 

formal complaint.’’ If the recipient 

receives a formal complaint under those 

procedures, current § 106.44(b) then 

obligates the recipient to follow 

additional requirements discussed 

elsewhere in the current regulations. 

Prior to the 2020 amendments, OCR had 

interpreted Title IX to require a 

recipient with notice of sexual 

harassment to ‘‘promptly investigate to 

determine what occurred and then take 

appropriate steps to resolve the 

situation.’’ 2001 Revised Sexual 

Harassment Guidance at 15; see also 

1997 Sexual Harassment Guidance, 62 

FR 12042. This obligation existed 

regardless of whether the harassed 

student filed a complaint or asked the 

school to take action on the student’s 

behalf. 2001 Revised Sexual Harassment 

Guidance at 15. 

In the preamble to the 2020 

amendments, the Department explained 

its view that requiring a recipient to take 

‘‘ ‘effective corrective actions to stop the 

harassment [and] prevent its 

recurrence,’ . . . ostensibly holds a 

recipient strictly liable to ‘stop’ and 

‘prevent’ sexual harassment.’’ 85 FR 

30044 n.165 (quoting 2001 Revised 

Sexual Harassment Guidance at 10, 12); 

see also id. at 30046 (explaining that 

‘‘these final regulations do not 

unrealistically hold recipients 

responsible where the recipient took all 

steps required under these final 

regulations, took other actions that were 

not clearly unreasonable in light of the 

known circumstances, and a perpetrator 

of harassment reoffends’’). In light of 

these concerns, the Department adopted 

the deliberate indifference standard, 

stating that this standard would afford 

recipients greater discretion in 

responding to sexual harassment. Id. at 

30044 n.165. In doing so, the 

Department specified that the only 

steps, outside of the grievance process, 

that a recipient was obligated to take 

were those listed in current 

§ 106.44(a)—i.e., the Title IX 

Coordinator must promptly contact the 

complainant, discuss supportive 

measures, and explain the process for 

filing a complaint. None of these steps 

requires the recipient to ensure 

continued equal access to its education 

program or activity for the parties and 

more broadly for a recipient’s 

educational community or otherwise 

ensures that a recipient meets its legal 

duty under Title IX to operate its 

education program or activity free from 

sex discrimination. 

OCR heard, through the June 2021 

Title IX Public Hearing and in listening 

sessions, concerns about the 

Department’s suggestion that a school’s 

obligation to respond to sexual 

harassment occurs only in situations in 

which a recipient has actual knowledge 

of sexual harassment. OCR also heard 

concerns about the way in which the 

current regulations limit a recipient’s 

required response to actual 

knowledge—that a recipient is required 

only to offer a complainant supportive 

measures and provide the complainant 

with information about the recipient’s 

grievance procedures, unless a formal 

complaint is filed through the 

recipient’s grievance procedures. 

Stakeholders expressed a concern that 

in shifting from a reasonableness 

standard to deliberate indifference, the 

Department no longer required schools 

to act proactively to address sex 

discrimination in their educational 

environment. They noted that under the 

2020 amendments, the Department 

failed to require recipients to fully 

address the impact of sexual harassment 

in their educational environments, and 

further failed to impose any obligations 

to respond to possible sex 

discrimination other than requiring 

them to adopt grievance procedures for 

the prompt and equitable resolution of 

sex discrimination complaints 

contained in current § 106.8(c). 

Together, these concerns suggested that 

the approach adopted in the 2020 

amendments may have created a 

troubling gap in implementing Title IX’s 

prohibition on sex discrimination: a 

recipient may have information about 

possible sex discrimination in its 

education program or activity and yet 

may have no obligation to take any 

action to address it if a formal complaint 

is not filed and the recipient’s Title IX 

Coordinator determines that the 

allegations do not warrant overriding a 

complainant’s wishes and initiating a 

complaint. These stakeholders further 

commented that there are other steps a 

recipient can and should take to address 

sex discrimination outside of acting 

through its grievance procedures and 

asked the Department to reconsider its 

approach. 

To address these concerns, dispel 

confusion created by the 2020 

amendments, and ensure a recipient 

fulfills its legal duty to operate its 

education program or activity free from 

sex discrimination, proposed § 106.44(a) 

would require a recipient to take prompt 

and effective action to end any sex 

discrimination that has occurred in its 

education program or activity, prevent 

its recurrence, and remedy its effects. 

Although the Department does not 

propose a specific timeframe for 

‘‘prompt’’ action to end sex 

discrimination, as the Department 

explained in the preamble to the 2020 

amendments, what would constitute 

reasonably prompt timeframes in a 

recipient’s grievance process under 

current § 106.45 ‘‘is judged in the 

context of the recipient’s obligation to 

provide students and employees with 

education programs and activities free 

from sex discrimination.’’ 85 FR 30269. 

Outside the context of a recipient’s 

grievance procedures for complaints of 

sex discrimination, the Department 

reaffirms that ‘‘prompt’’ action to end 

sex discrimination in a recipient’s 

education program or activity ‘‘is 

necessary to further Title IX’s 

nondiscrimination mandate.’’ Id. An 

unreasonable delay by a recipient to end 

sex discrimination would not meet Title 

IX’s obligation. 

The Department notes that proposed 

§ 106.44(a)’s requirement of prompt and 

effective action would not compel any 

particular officials of a recipient to 

know of and respond effectively to sex 

discrimination that has not yet 

occurred; however, it would impose an 

obligation on a recipient to act 

effectively by taking reasonable steps 

calibrated to ensure that its Title IX 

Coordinator learns of possible 

discrimination so that the recipient can 

promptly and effectively address the 

discrimination based on all available 

information. And when a recipient’s 

response does not end discrimination 

and prevent its recurrence, the prompt 

and effective response requirement 

would mean that the recipient must 

reevaluate its response and take 

additional steps to end sex 

discrimination in its education program 

or activity. This approach is consistent 

with Federal courts’ interpretation of 

Gebser and Davis and what is required 

of a recipient under the deliberate 

indifference standard for monetary 

damages, when a recipient’s response to 


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discrimination must be designed to 

effectively end the discrimination and 

prevent its recurrence and when courts 

have required a recipient to reevaluate 

its response if it proves ineffective. See, 

e.g., Patterson v. Hudson Area Sch., 551 

F.3d 438, 449 (6th Cir. 2009) (‘‘Given 

that [the recipient] knew that its 

methods were ineffective, but did not 

change those methods, ‘a reasonable 

jury certainly could conclude that at 

some point during the . . . period of 

harassment[,] the school district’s 

standard and ineffective response to the 

known harassment became clearly 

unreasonable.’ ’’), abrogated on other 

grounds, Foster v. Bd. of Regents of 

Univ. of Mich., 982 F.3d 960 (6th Cir. 

2020); see also, e.g., Zeno v. Pine Plains 

Cent. Sch. Dist., 702 F.3d 655, 669–71 

n.12 (2d Cir. 2012) (applying Davis in 

Title VI claim); Doe v. Sch. Bd. of 

Broward Cnty., 604 F.3d 1248, 1261 

(11th Cir. 2010) (‘‘ ‘[W]here a school 

district has knowledge that its remedial 

action is inadequate and ineffective, it is 

required to take reasonable action in 

light of those circumstances to eliminate 

the behavior.’ ’’ (quoting Vance v. 

Spencer Cnty. Pub. Sch. Dist., 231 F.3d 

253, 260–61 (6th Cir. 2000))). 

In the administrative enforcement 

context, the Department proposes that a 

recipient meets its obligation to take 

prompt and effective action to end any 

sex discrimination in its education 

program or activity, prevent its 

recurrence, and remedy its effects by 

complying with the steps required 

under the additional provisions in 

proposed § 106.44, as appropriate. 

Importantly, nothing in the proposed 

regulations would affect the fact that the 

Department may not ‘‘terminat[e] or 

refus[e] to grant or to continue [Federal 

financial] assistance under [a] program 

or activity to any recipient’’ until the 

Department has made an express 

finding on the record of a failure to 

comply with a regulatory or statutory 

requirement, ‘‘after opportunity for 

hearing.’’ 20 U.S.C. 1682. 

Section 106.44(b) Monitoring 

Current regulations: None. 

Proposed regulations: The 

Department proposes adding a 

requirement at § 106.44(b) that a 

recipient must require its Title IX 

Coordinator to monitor barriers in the 

recipient’s education program or 

activity to reporting information about 

conduct that may constitute sex 

discrimination under Title IX, and then 

the recipient must take steps reasonably 

calculated to address barriers that have 

been identified. 

Reasons: As explained in the 

discussion of Sex Discrimination 

Generally (Section II.A), Title IX 

requires a recipient to operate its 

education program or activity in a 

manner that is free from sex 

discrimination. It is the Department’s 

current view that a recipient must 

identify and address barriers to 

reporting information that may 

constitute sex discrimination under 

Title IX in order to fulfill this obligation. 

The Department has long emphasized 

the importance of a recipient’s efforts to 

prevent sex discrimination. For 

example, in the preamble to its 2020 

amendments to the Title IX regulations, 

the Department repeatedly 

acknowledged the importance of efforts 

to prevent sex discrimination. 85 FR 

30063 (stating that ‘‘the Department 

agrees with commenters that educators, 

experts, students, and employees should 

also endeavor to prevent sexual 

harassment from occurring in the first 

place’’ (emphasis omitted)); id. at 30070 

(‘‘The Department understands . . . that 

prevention of sexual harassment 

incidents before they occur is a worthy 

and desirable goal.’’); id. at 30126 (‘‘The 

Department shares commenters’ beliefs 

that measures preventing sexual 

harassment from occurring in the first 

place are beneficial and desirable.’’). 

The Department also added 

requirements related to training for 

certain employees in the 2020 

amendments to the Title IX regulations, 

34 CFR 106.45(b)(1)(iii), that serve a 

prevention function and thus are crucial 

to the fulfillment of Title IX. For 

example, current § 106.45(b)(1)(iii) 

requires ‘‘Title IX Coordinators, 

investigators, decision-makers, and any 

person who facilitates an informal 

resolution process, receive training on 

the definition of sexual harassment in 

§ 106.30’’ and ‘‘the scope of the 

recipient’s education program or 

activity.’’ 

In addition, a longstanding concern of 

the Department has been that 

information about conduct that may 

constitute sex discrimination under 

Title IX may be underreported to 

officials of recipients who are able to 

take effective steps to address it. For 

example, in the preamble to the 2020 

amendments, the Department noted 

concerns raised by stakeholders that 

‘‘sexual assault is chronically 

underreported’’ and that while most of 

those who experience sexual assault tell 

someone about their experience, only a 

small minority of incidents of sexual 

assault are reported to officials such as 

the Title IX Coordinator. 85 FR 30110. 

In response to these concerns, the 

Department emphasized that the Title 

IX Coordinator’s role is to ensure that 

‘‘all students have clear, accessible 

options for making reports.’’ Id. at 

30111. Under the 2020 amendments, a 

recipient is required to provide and 

disseminate the contact information for 

its Title IX Coordinator to those seeking 

to report sexual harassment, as well as 

to institute anti-bias training for the 

Title IX Coordinator. Id. at 30111–12. 

The current regulations do not, 

however, require a recipient to take 

specific steps to ensure that information 

about conduct that may constitute sex 

discrimination under Title IX is not 

underreported. 

Following the implementation of the 

2020 amendments, OCR continued to 

hear from stakeholders who expressed 

concerns regarding barriers to reporting 

information about conduct that may 

constitute sex discrimination under 

Title IX. During the June 2021 Title IX 

Public Hearing, OCR received feedback 

from some stakeholders noting that a 

majority of students (one stakeholder 

stated that it was 90 percent of students) 

who had experienced sex-based 

harassment did not report it to their 

school. Stakeholders pointed to a 

variety of reasons for this substantial 

underreporting, including inadequacies 

in a recipient’s response to reports, such 

as a failure to communicate promptly, to 

investigate as required, to address 

violations of restrictions on contact, or 

to respond effectively to retaliation. In 

addition, some stakeholders stated that 

students were deterred from reporting 

sex-based harassment because they 

feared being disciplined for violating 

the recipient’s code of conduct related 

to personal alcohol or drug use or 

consensual sexual activity. On this 

issue, some stakeholders noted that they 

or others had been disciplined after 

reporting sex-based harassment, 

including for the very conduct about 

which they complained. Cf. Complaint 

at ¶¶ 8, 16, L.C. v. Williamsburg Cnty. 

Sch. Dist., 2018–CP–45–00359 (S.C. Ct. 

Com. Pl. Aug. 14, 2018) (alleging that 

the plaintiff, a female middle school 

student, was disciplined for 

unauthorized access to the boys’ 

bathroom following her report to the 

school that three male students forced 

her to enter the boys’ bathroom to 

sexually assault her). Stakeholders 

noted that discipline for these collateral 

conduct violations in response to 

reports of sex-based harassment deters 

further reporting. Although stakeholders 

generally expressed that supportive 

measures encouraged reporting, some 

also explained that the lack of particular 

supportive measures, such as academic 

adjustments in the aftermath of sexbased harassment or trauma-informed 

counseling to provide confidential 


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support, disincentivized reporting. 

Finally, stakeholders shared concerns 

about the role of the Title IX 

Coordinator, particularly in elementary 

schools and secondary schools, 

including that students and employees 

may not know who the Title IX 

Coordinator is or what the Title IX 

Coordinator’s responsibilities are, and 

that the Title IX Coordinator may not 

have sufficient experience or training to 

respond effectively to reports of sex 

discrimination. 

Recognizing that these barriers may 

interfere with a recipient’s ability to 

offer its programs and activities free 

from sex discrimination, as required by 

Title IX, the Department proposes that 

the recipient’s Title IX Coordinator 

would have responsibility to monitor for 

barriers to reporting. The Department 

also proposes requiring that when the 

Title IX Coordinator has identified such 

a barrier, the recipient must take steps 

reasonably calculated to address the 

barrier, consistent with Title IX and the 

Department’s regulations. Proposed 

§ 106.44(b) would thus complement the 

recipient’s efforts under proposed 

§ 106.44(a) to ensure that its education 

program or activity is free from sex 

discrimination. By requiring its Title IX 

Coordinator to monitor for barriers to 

reporting and then take steps reasonably 

calculated to address those barriers, the 

recipient would ensure that it is 

monitoring conditions in its educational 

environment that might have the effect 

of chilling reporting of sex 

discrimination. By addressing barriers 

to reporting, proposed § 106.44(b) 

would also support a recipient in 

complying with its obligations under 

Title IX, including to prohibit retaliation 

under proposed § 106.71. The 

Department notes that under this 

proposed requirement, a recipient may 

use various strategies to identify 

barriers, such as conducting regular 

campus climate surveys, seeking 

targeted feedback from students and 

employees who have reported or made 

complaints about sex discrimination, 

participating in public awareness events 

for purposes of receiving feedback from 

student and employee attendees, or 

regularly publicizing and monitoring an 

email address designated for receiving 

anonymous feedback about barriers to 

reporting sex discrimination. The 

Department acknowledges that 

recipients vary in size and resources, 

and emphasizes that recipients have the 

opportunity to choose strategies that 

will be effective in their educational 

setting. The Department also notes that 

in order to fulfill its monitoring 

obligation, a recipient may need to 

direct its Title IX Coordinator to use 

multiple strategies to ensure that the 

recipient is identifying barriers for all 

populations, particularly those who may 

face additional barriers to reporting, 

including students with disabilities or 

persons with limited English 

proficiency. See 85 FR 30109. 

Under proposed § 106.44(b), the 

recipient must take steps reasonably 

calculated to address actual or 

perceived barriers, if any, consistent 

with Title IX and the Department’s 

regulations. These steps must be 

tailored to respond to the identified 

impediments and obstacles to reporting, 

and could include, for example, more 

frequent and prominent publication of 

the Title IX Coordinator’s contact 

information; relocation of the Title IX 

Coordinator’s office to a more visible, 

accessible location; ensuring that the 

Title IX Coordinator’s office is 

adequately staffed; enhancing training 

for employees with Title IX 

responsibilities; the development and 

circulation of user-friendly Title IX 

materials; publicized assurances that the 

recipient will not discipline parties or 

witnesses to a grievance procedure for 

certain code of conduct violations (e.g., 

prohibitions on personal alcohol or drug 

use, consensual sexual relations, or 

unauthorized access to facilities) that 

may be disclosed or uncovered during 

the Title IX process; a wider variety of 

supportive measures; and targeted 

trainings on how to assert Title IX rights 

for students and employees. 

Section 106.44(c) Notification 

Requirements 

Current regulations: Section 106.30(a) 

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 any employee of an 

elementary and secondary school 

recipient. Imputation of knowledge 

based solely on vicarious liability or 

constructive notice is insufficient to 

constitute actual knowledge. This 

standard is not met when the only 

official of the recipient with actual 

knowledge is the respondent. The mere 

ability or obligation to report sexual 

harassment or to inform a student about 

how to report sexual harassment, or 

having been trained to do so, does not 

qualify an individual as one who has 

authority to institute corrective 

measures on behalf of the recipient. 

Notice as used in this paragraph 

includes but is not limited to, a report 

of sexual harassment to the Title IX 

Coordinator as described in § 106.8(a). 

The regulations require a recipient to 

respond to sexual harassment or 

allegations of sexual harassment only if 

it has actual knowledge. 

Current § 106.44(a) states that a 

recipient with actual knowledge of 

sexual harassment in its education 

program or activity against a person in 

the United States must respond 

promptly in a manner that is not 

deliberately indifferent. That section 

further states a recipient is deliberately 

indifferent only if its response to sexual 

harassment is clearly unreasonable in 

light of known circumstances. 

Proposed regulations: Under 

proposed § 106.44(c)(1), an elementary 

school or secondary school recipient 

would be obligated to require all of its 

employees who are not confidential 

employees to notify the Title IX 

Coordinator when the employee has 

information about conduct that may 

constitute sex discrimination under 

Title IX. 

Under proposed § 106.44(c)(2)(i), all 

other recipients would be obligated, at 

a minimum, to require any employee 

who is not a confidential employee and 

who has authority to institute corrective 

measures on behalf of the recipient to 

notify the Title IX Coordinator when the 

employee has information about 

conduct that may constitute sex 

discrimination under Title IX. 

Under proposed § 106.44(c)(2)(ii), all 

other recipients would also be obligated, 

at a minimum, to require any employee 

who is not a confidential employee and 

who has responsibility for 

administrative leadership, teaching, or 

advising in the recipient’s education 

program or activity to notify the Title IX 

Coordinator when the employee has 

information about a student being 

subjected to conduct that may constitute 

sex discrimination under Title IX. 

Under proposed § 106.44(c)(2)(iii), all 

other recipients would also be obligated, 

at a minimum, to require any employee 

who is not a confidential employee and 

who has responsibility for 

administrative leadership, teaching, or 

advising in the recipient’s education 

program or activity and has information 

about an employee being subjected to 

conduct that may constitute sex 

discrimination under Title IX to either: 

(A) notify the Title IX Coordinator when 

the employee has information about 

conduct that may constitute sex 

discrimination against employees under 

Title IX; or (B) provide the contact 

information of the Title IX Coordinator 

and information about how to report sex 

discrimination to any person who 

provides the information. 

Under proposed § 106.44(c)(2)(iv), all 

other recipients would also be obligated, 


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at a minimum, to require all employees 

who are not confidential employees, if 

any, to either: (A) notify the Title IX 

Coordinator when the employee has 

information about conduct that may 

constitute sex discrimination under 

Title IX; or (B) provide the contact 

information of the Title IX Coordinator 

and information about how to report sex 

discrimination to any person who 

provides information regarding conduct 

that may constitute sex discrimination 

under Title IX. 

Proposed § 106.44(c)(3) would 

provide factors for a postsecondary 

institution to consider when 

determining whether a person who is a 

student and an employee would be 

subject to the requirements in proposed 

§ 106.44(c)(2) for employees. 

Proposed § 106.44(c)(4) would explain 

that the requirements under proposed 

§ 106.44(c)(1) and (2) would not apply 

when the only employee with 

information about conduct that may 

constitute sex discrimination under 

Title IX is the employee-complainant. 

Reasons: The Department stated in 

the preamble to the 2020 amendments 

that the actual knowledge framework it 

adopted ‘‘achieve[s] important policy 

objectives that arise in the context of a 

school’s response to reports, allegations, 

or incidents of sexual harassment in a 

school’s education program or activity, 

including . . . respect for complainants’ 

autonomy, protection of complainants’ 

equal educational access while 

respecting the decisions of State and 

local educators to determine appropriate 

supportive measures, remedies, and 

disciplinary sanctions, consistency with 

constitutional due process and 

fundamental fairness, and clear legal 

obligations that enable robust 

administrative enforcement of Title IX 

violations.’’ Id. at 30035 (footnotes 

omitted). These objectives remain 

constant, and the Department submits 

that the proposed regulations more 

effectively achieve these objectives 

while ensuring that all recipients 

provide a nondiscriminatory 

educational environment consistent 

with their duty under Title IX. 

As explained in the discussion of the 

definition of ‘‘actual knowledge’’ in the 

current regulations, current § 106.30(a) 

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 any employee of an 

elementary and secondary school 

recipient. In addition, current 

§ 106.44(a) states that a recipient with 

actual knowledge of sexual harassment 

in its education program or activity 

against a person in the United States 

must respond promptly in a manner that 

is not deliberately indifferent. After 

reconsidering this issue in light of 

stakeholder feedback and a recipient’s 

obligation to ensure that its education 

program or activity is free from sex 

discrimination regardless of notice, the 

Department proposes that the most 

effective way to ensure that a recipient’s 

program or activity is free from sex 

discrimination is through regulations 

that set out a recipient’s particular 

obligations regarding notification to the 

recipient’s Title IX Coordinator and 

other requirements for various 

employees who have information 

concerning conduct that may constitute 

sex discrimination under Title IX. This 

would include requiring particular 

categories of employees to take specific 

actions when these employees have 

information about conduct that may 

constitute sex discrimination under 

Title IX. In addition, because the 

obligation under Title IX for a recipient 

to operate its education program or 

activity free from sex discrimination 

extends to all forms of sex 

discrimination, not just sexual 

harassment, these obligations and 

employee actions must not be limited to 

sexual harassment. 

Under proposed § 106.44(c), these 

specific employee obligations would 

include either notifying the recipient’s 

Title IX Coordinator when the employee 

has information about conduct that may 

constitute sex discrimination under 

Title IX or providing the contact 

information of the recipient’s Title IX 

Coordinator and information about how 

to report sex discrimination to any 

person who provides the employee with 

information about conduct that may 

constitute sex discrimination under 

Title IX. Whether an employee would be 

obligated to notify the Title IX 

Coordinator directly or provide the Title 

IX Coordinator’s contact information 

and information about reporting would 

depend on the employee’s role, 

including whether the employee is 

employed by an elementary school or 

secondary school or other recipient, 

whether the employee has authority to 

take corrective action or has 

responsibility for administrative 

leadership, teaching, or advising in the 

recipient’s education program or 

activity, whether the conduct that may 

constitute sex discrimination under 

Title IX affected students or employees, 

and whether the employee meets the 

definition of a ‘‘confidential employee’’ 

in proposed § 106.2. 

Elementary schools or secondary 

schools (proposed § 106.45(c)(1)). Under 

proposed § 106.44(c)(1), an elementary 

school or secondary school would be 

obligated to require any employee who 

is not a confidential employee to notify 

the Title IX Coordinator when the 

employee has information about 

conduct that may constitute sex 

discrimination under Title IX. This 

proposed requirement reflects the 

Department’s current position that in 

the elementary school and secondary 

school setting, school administrators, 

teachers, and other employees exercise 

a considerable degree of control and 

supervision over a recipient’s students, 

and requiring all nonconfidential 

employees to notify the Title IX 

Coordinator about conduct that may 

constitute sex discrimination under 

Title IX would implement Title IX’s 

guarantee of protection against sex 

discrimination in a manner that best 

serves the needs and expectations of 

those students. The Department agrees 

with the view expressed in the preamble 

to the 2020 amendments ‘‘that 

employees at elementary and secondary 

schools stand in a unique position with 

respect to students.’’ Id. at 30040. In 

addition, as explained in the preamble 

to the 2020 amendments, ‘‘[e]lementary 

and secondary schools generally operate 

under the doctrine of in loco parentis, 

under which the school stands ‘in the 

place of’ a parent with respect to certain 

authority over, and responsibility for, its 

students’’ and ‘‘employees at elementary 

and secondary schools typically are 

mandatory reporters of child abuse 

under State laws for purposes of child 

protective services.’’ Id. at 30039–40. 

This proposed amendment is also 

consistent with the definition in the 

2020 amendments of ‘‘actual 

knowledge’’ for recipients that are 

elementary schools or secondary 

schools, which imputes to the recipient 

the knowledge of any of its employees. 

Recipients other than elementary 

schools and secondary schools 

(proposed § 106.44(c)(2)). As explained 

in the discussion of proposed 

§ 106.44(a), in connection with the June 

2021 Title IX Public Hearing and 

listening sessions, OCR heard from 

stakeholders who supported the ‘‘actual 

knowledge’’ definition or who wanted 

the definition of ‘‘notice’’ to be 

narrowed even further and others who 

expressed concern that the actual 

knowledge standard might be read to 

enable a recipient to ignore sexual 

harassment simply because allegations 

of harassing conduct were not reported 

to the right employee. In addition, OCR 

also heard from several stakeholders in 

connection with the June 2021 Title IX 

Public Hearing who cautioned the 


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Department not to impose a requirement 

that all postsecondary employees report 

information about possible sexual 

harassment to the Title IX Coordinator 

and to instead permit postsecondary 

institutions to craft reporting procedures 

based on what will be most effective for 

ensuring compliance with Title IX in 

their educational environment, while 

also ensuring that students know what 

to expect before they share information 

about conduct that may constitute sex 

discrimination under Title IX with an 

employee. 

The preamble to the 2020 

amendments also discussed the desire 

to provide autonomy to complainants in 

support of limiting the definition of 

‘‘actual knowledge’’ at postsecondary 

institutions to employees with the 

authority to institute corrective 

measures on behalf of the recipient. The 

preamble to the 2020 amendments 

stated that ‘‘[t]he extent to which a 

wide-net or universal mandatory 

reporting system for employees in 

postsecondary institutions is beneficial, 

or detrimental, to complainants, is 

difficult to determine, and research (to 

date) is inconclusive.’’ Id. at 30042 

(citing Merle H. Weiner, A Principled 

and Legal Approach to Title IX 

Reporting, 85 Tenn. L. Rev. 71, 78–79, 

82–84 (2017)). The preamble further 

stated that research demonstrates ‘‘that 

respecting an alleged victim’s 

autonomy, giving alleged victims 

control over how official systems 

respond to an alleged victim, and 

offering clear options to alleged victims 

are critical aspects of helping an alleged 

victim recover from sexual harassment.’’ 

Id. at 30042–43 (citing Margaret Garvin 

& Douglas E. Beloof, Crime Victim 

Agency: Independent Lawyers for 

Sexual Assault Victims, 13 Ohio St. J. 

Crim. L. 67, 69–70, 71–72 (2015); 

Patricia A. Frazier et al., Coping 

Strategies as Mediators of the Relations 

Among Perceived Control and Distress 

in Sexual Assault Survivors, 52 J. 

Counseling Psych. 3 (2005); Ryan M. 

Walsh & Steven E. Bruce, The 

Relationships Between Perceived Levels 

of Control, Psychological Distress, and 

Legal System Variables in a Sample of 

Sexual Assault Survivors, 17 Violence 

Against Women 603, 611 (2011); Nancy 

Chi Cantalupo, For the Title IX Civil 

Rights Movement: Congratulations and 

Cautions, 125 Yale J.L. & Feminism 281, 

291 (2016); Weiner at 117). The 

preamble to the 2020 amendments 

explained that through the current 

regulations, ‘‘the Department aims to 

respect the autonomy of complainants 

and to recognize the importance of a 

complainant retaining as much control 

as possible over their own 

circumstances following a sexual 

harassment experience, while also 

ensuring that complainants have clear 

information about how to access the 

supportive measures a recipient has 

available (and how to file a formal 

complaint initiating a grievance process 

against a respondent if the complainant 

chooses to do so) if and when the 

complainant desires for a recipient to 

respond to the complainant’s situation.’’ 

Id. at 30043. The Department further 

asserted in the preamble that 

‘‘complainants will benefit from 

allowing postsecondary institutions to 

decide which of their employees (aside 

from the Title IX Coordinator, and 

officials with authority) may listen to a 

student’s disclosure of sexual 

harassment without being mandated to 

report the sexual harassment incident to 

the Title IX Coordinator.’’ Id. at 30113. 

The Department continues to 

recognize the importance of 

complainant autonomy outside of the 

context of elementary school and 

secondary school settings, as discussed 

in the preamble to the 2020 

amendments, and also recognizes 

concerns expressed by stakeholders that 

the limitation on which employees are 

covered by the definition of ‘‘actual 

knowledge’’ under current § 106.30(a) 

for postsecondary institutions is too 

narrow and insufficient to ensure that 

recipients meet their obligation under 

Title IX to operate their education 

programs or activities free from sex 

discrimination. In view of this, the 

Department’s tentative position is that it 

would be appropriate to obligate 

recipients other than elementary schools 

or secondary schools to require any 

employee who is not a confidential 

employee and who has authority to 

institute corrective measures on behalf 

of the recipient to notify the Title IX 

Coordinator when the employee has 

information about conduct that may 

constitute sex discrimination under 

Title IX. The Department’s tentative 

position is also that it would be 

appropriate to obligate recipients other 

than elementary schools or secondary 

schools to require any employee who is 

not a confidential employee and who 

has responsibility for administrative 

leadership, teaching, or advising in a 

recipient’s education program or 

activity, to notify the Title IX 

Coordinator when the employee has 

information about a student being 

subjected to conduct that may constitute 

sex discrimination under Title IX. 

Requiring employees with the 

authority to institute corrective 

measures to notify the Title IX 

Coordinator when they have 

information about conduct that may 

constitute sex discrimination under 

Title IX is generally consistent with the 

definition of ‘‘actual knowledge’’ in the 

sexual harassment context in current 

§ 106.30(a). Although employees with 

responsibility for administrative 

leadership, teaching, and advising in the 

recipient’s education program or 

activity may not actually have the 

authority to institute corrective 

measures on behalf of the recipient, 

these employees are responsible for 

providing aid, benefits, or services to 

students. In light of this responsibility, 

it is likely that a student would view 

these employees as persons who would 

have the authority to redress sex 

discrimination or to whom they could 

provide information regarding sex 

discrimination with the expectation that 

doing so would obligate the recipient to 

act. The same is true for employees with 

administrative roles who are not 

student-facing (e.g., a director of an 

employee benefits program). With 

respect to employees who have 

responsibility for administrative 

leadership, teaching, or advising, the 

Department proposes requiring these 

employees to notify the Title IX 

Coordinator only when they have 

information about a student being 

subjected to conduct that may constitute 

sex discrimination under Title IX. The 

Department’s proposal is based on its 

current view that students are 

differently situated than employees and 

may be less capable of self-advocacy 

than employees. The different 

characteristics of students and 

employees are explained in greater 

detail in the discussion of the 

Framework for Grievance Procedures for 

Complaints of Sex Discrimination 

(Section II.F). 

The Department also now believes 

that it would be appropriate to provide 

recipients other than elementary schools 

and secondary schools with the option 

to determine, based on their own 

administrative structure, education 

community, and State or local legal 

requirements, the notification 

obligations of certain types of 

employees. This would include 

employees who are not confidential 

employees and who have responsibility 

for administrative leadership, teaching, 

or advising in the recipient’s education 

program or activity who have 

information about an employee being 

subjected to conduct that may constitute 

sex discrimination under Title IX and 

all other employees who are not 

confidential employees, if any, who 

have information about conduct that 

may constitute sex discrimination under 


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Title IX. Thus, under proposed 

§ 106.44(c)(2)(iii) and (iv), these 

recipients would have discretion to 

determine whether these types of 

employees must either: (A) notify the 

Title IX Coordinator when they have 

such information; or (B) provide the 

contact information of the Title IX 

Coordinator and information about how 

to report sex discrimination when they 

receive such information. The recipient 

would have discretion to determine 

which of these two actions these types 

of employees must take. 

The Department’s current view is also 

that complainant autonomy and the 

ability to seek out confidential resources 

would be better supported by proposing 

a definition of ‘‘confidential employee’’ 

and requirements for confidential 

employees than by limiting the category 

of employees at recipients other than 

elementary schools and secondary 

schools who must notify the Title IX 

Coordinator of conduct that may 

constitute sex discrimination under 

Title IX. The proposed definition of 

‘‘confidential employee’’ and 

requirements for confidential employees 

are explained in greater detail in the 

discussion of the proposed definition of 

‘‘confidential employee’’ (§ 106.2) and 

proposed requirements for confidential 

employees (§ 106.44(d)). 

The Department explained in the 

preamble to the 2020 amendments that 

a recipient is required to notify all 

students or employees ‘‘of the contact 

information for the Title IX Coordinator 

and how to report sexual harassment for 

purposes of triggering a recipient’s 

response obligations,’’ but expressed the 

belief ‘‘that students at postsecondary 

institutions benefit from retaining 

control over whether, and when, the 

complainant wants the recipient to 

respond to the sexual harassment that 

the complainant experienced.’’ Id. at 

30040. The Department agrees that 

requiring this type of general 

notification is necessary to effectuate 

the goals of Title IX and proposed 

§ 106.8(a)(2) and (c)(2) would require 

similar notifications. The Department’s 

current understanding, however, is that 

in addition to these general notification 

requirements, recipients other than 

elementary schools or secondary 

schools should also have additional 

notification requirements when certain 

types of employees who are not 

confidential employees have 

information about conduct that may 

constitute sex discrimination under 

Title IX. The determination whether the 

employee would be required to notify 

the Title IX Coordinator of information 

about conduct that may constitute sex 

discrimination under Title IX or provide 

the contact information of the Title IX 

Coordinator and information about how 

to report sex discrimination would be 

made by the recipient and not the 

employee. A recipient would make this 

determination, and could do so either 

by determining that one of these two 

options would be more appropriate for 

the role and responsibilities of an 

individual employee or a group of 

employees (e.g., all employees who 

interact with students in the dining hall 

or all public safety officers or all 

employees with a particular 

employment status). Proposed 

§ 106.44(c)(2)(iii) and (iv) would, 

however, require that if a recipient does 

not require these types of employees to 

notify the Title IX Coordinator about 

conduct that may constitute sex 

discrimination under Title IX, the 

employee must be required to provide 

the contact information of the 

recipient’s Title IX Coordinator as well 

as information regarding how to report 

sex discrimination to the person who 

shared the information about conduct 

that may constitute sex discrimination 

under Title IX. The Department’s 

current understanding is that although it 

is appropriate to provide recipients 

other than elementary schools or 

secondary schools with some discretion 

regarding the reporting responsibilities 

of certain categories of nonconfidential 

employees, to fulfill the goals of Title IX 

it would be necessary for a recipient to 

require that any person who provides 

information regarding conduct that may 

constitute sex discrimination under 

Title IX also receive information 

regarding how they can contact the 

recipient’s Title IX Coordinator and 

report or make a complaint of sex 

discrimination if they decide that they 

want the recipient to take the specific 

steps outlined in proposed § 106.44, 

proposed § 106.45, and if applicable 

proposed § 106.46. 

Employee with the authority to 

institute corrective measures. The 

Department’s current position, which is 

consistent with the Department’s 

position in the 2020 amendments, is 

that whether an employee has the 

authority to institute corrective 

measures on behalf of a recipient is a 

fact-specific determination that rests on 

the recipient’s own policies regarding 

whether an employee has the authority 

to take action to address sex 

discrimination on behalf of the 

recipient. As explained in the preamble 

to the 2020 amendments, this 

determination is best left up to the 

recipient because ‘‘[d]etermining 

whether an individual is an ‘official 

with authority’ is a legal determination 

that depends on the specific facts 

relating to a recipient’s administrative 

structure and the roles and duties held 

by officials in the recipient’s own 

operations’’ and ‘‘[p]ostsecondary 

institutions ultimately decide which 

officials to authorize to institute 

corrective measures on behalf of the 

recipient.’’ Id. at 30039–40. The 

preamble to the 2020 amendments 

further noted that ‘‘[t]he Supreme Court 

viewed this category of [employees] as 

the equivalent of what 20 U.S.C. 1682 

calls an ‘appropriate person’ for 

purposes of the Department’s resolution 

of Title IX violations with a recipient.’’ 

Id. at 30039 (citing Gebser, 524 U.S. at 

290 (‘‘An ‘appropriate person’ under 

§ 1682 is, at a minimum, an official of 

the recipient entity with authority to 

take corrective action to end the 

discrimination.’’)). The Department also 

explained that ‘‘a recipient also may 

empower as many officials as it wishes 

with the requisite authority to institute 

corrective measures on the recipient’s 

behalf.’’ Id. at 30107. 

Employee with responsibility for 

administrative leadership, teaching, or 

advising. It is the Department’s current 

understanding that employees with 

responsibility for administrative 

leadership would include deans, 

coaches, public safety supervisors, and 

other employees with a similar level of 

responsibility, such as those who hold 

positions as assistant or associate deans 

and directors of programs or activities. 

The Department anticipates that 

employees with teaching 

responsibilities would include any 

employee with ultimate responsibility 

for a course, which could include fulltime, part-time, and adjunct faculty 

members as well as graduate students 

who have full responsibility for teaching 

and grading students in a course. It is 

the Department’s current understanding 

that employees with responsibility for 

advising would include academic 

advisors, as well as employees who 

serve as advisors for clubs, fraternities 

and sororities, and other programs or 

activities offered or supported for 

students by the recipient. When a 

person is both a student and an 

employee, the Department expects that 

the person would be required to notify 

the Title IX Coordinator only of 

information that may constitute sex 

discrimination under Title IX that was 

shared with the person while they were 

fulfilling their employment 

responsibilities (e.g., receiving 

information about sex discrimination 

from a student during class or office 

hours). Similar to employees who have 

the authority to institute corrective 


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measures on behalf of the recipient, the 

Department now believes that whether 

an employee has responsibility for 

administrative leadership, teaching, or 

advising is a fact-specific determination 

to be made by the recipient taking into 

account the types of factors just 

discussed and any others that may be 

relevant in the recipient’s educational 

environment. 

Information about conduct that may 

constitute sex discrimination under 

Title IX. The Department anticipates 

that under proposed § 106.44(c), it 

would not be necessary for the 

employee to have factual information 

that definitively indicates that sex 

discrimination occurred in order for the 

employee’s notification requirements 

under proposed § 106.44(c) to apply. 

Rather, it would be enough for the 

employee to have information about 

conduct that could reasonably be 

understood to constitute sex 

discrimination under Title IX, including 

conduct that could constitute sex-based 

harassment. This is similar to the 

position the Department took in the 

preamble to the 2020 amendments 

explaining that the recipient ‘‘need not 

have received notice of facts that 

definitively indicate whether a 

reasonable person would determine that 

the complainant’s equal access has been 

effectively denied’’ in order to prompt 

its obligation to respond under current 

§ 106.44 because the obligation to 

respond is also prompted by allegations 

of sexual harassment. Id. at 30192. The 

Department also notes that under 

proposed § 106.8(d)(1)(ii), a recipient 

would be required to train all employees 

on the scope of conduct that constitutes 

sex discrimination under Title IX, 

including the definition of ‘‘sex-based 

harassment’’ in proposed § 106.2. The 

Department’s current belief is that this 

proposed training requirement would 

help recipients ensure that employees 

are able to recognize when they have 

information about conduct that may 

constitute sex discrimination under 

Title IX. 

The Department also currently 

believes that an employee may receive 

information about conduct that may 

constitute sex discrimination under 

Title IX in a variety of ways, which is 

similar to the position the Department 

took in the 2020 amendments. See, e.g., 

id. at 30110, 30115, 30040 (noting that 

allegations of sexual harassment can 

come from any source, i.e., from the 

person alleged to be the victim of sexual 

harassment, from any third party such 

as a friend, parent, or witness to sexual 

harassment, or from the employee’s 

firsthand observation of conduct that 

could constitute sexual harassment). 

Under the proposed regulations, similar 

to the discussion in the preamble to the 

2020 amendments, an employee may 

witness sex discrimination, hear about 

sex discrimination allegations from a 

complainant or witness, receive 

information or a written or verbal 

complaint about sex discrimination 

from someone other than the 

complainant, including another student, 

a parent, a member of the local 

community, or the media, or learn of 

conduct that may constitute sex 

discrimination under Title IX by any 

other means. These other means could 

include indirectly learning of conduct 

that may constitute sex discrimination 

under Title IX, for example, through 

flyers about the conduct distributed at 

the school or posted around the school. 

The Department also notes the 

increasing use of social media and other 

online platforms as a means of 

communication between students and 

the rise of online harassment as a form 

of sex-based harassment, including on 

these platforms. The Department 

recognizes that online harassment is 

constantly evolving as forms of these 

platforms evolve and that harassment 

targeted at students and employees on 

these media platforms may impact a 

recipient’s education program or 

activity. The Department does not 

expect that a recipient will follow the 

online activity of its students that is not 

part of the recipient’s education 

program or activity; however, when an 

employee has information about sexbased harassment among its students 

that took place on social media or other 

online platforms and created a hostile 

environment in the recipient’s 

education program or activity, the 

recipient would have an obligation to 

address that conduct. Therefore, a 

recipient under the proposed 

regulations would be required to ensure 

that its employees understand their 

obligation, depending on their role, to 

either provide that information to the 

Title IX Coordinator or provide the Title 

IX Coordinator’s information and 

reporting information to the person who 

alerted them to the conduct that may 

constitute sex-based harassment. See 

Feminist Majority Found. v. Hurley, 911 

F.3d 674, 688–89 (4th Cir. 2018) 

(holding that a recipient cannot ignore 

‘‘the sexual harassment that pervaded 

and disrupted its campus solely because 

the offending conduct took place 

through cyberspace’’). For example, 

consider a situation in which sexually 

explicit photographs of a student have 

been posted on a social media group 

used by a number of students who 

attend school together. Several students 

discuss these photographs and make 

comments about them to the student 

during class and a student who 

witnesses this reports it to a teacher. As 

a result of the discussion and comments 

in class, the student in the photographs 

skips classes and extracurricular 

activities to avoid those students who 

made comments to her. Although the 

photographs were on social media, the 

students’ engagement with the explicit 

photographs at school and comments 

about them to the affected student 

would create a hostile environment in 

the recipient’s education program or 

activity because the conduct was 

sufficiently severe or pervasive that it 

denied or limited that student’s ability 

to participate or benefit from the 

school’s education program or activity. 

Student employees (proposed 

§ 106.44(c)(3)). The Department 

recognizes that a person may be both a 

student and an employee of a 

postsecondary institution. In such cases 

a postsecondary institution would need 

to make a fact-specific inquiry to 

determine whether the requirements of 

proposed § 106.44(c)(2) would apply. To 

guide a postsecondary institution in 

making this determination, proposed 

§ 106.44(c)(3) would set out two factors 

that a postsecondary institution must 

consider, at a minimum: whether the 

person’s primary relationship with the 

postsecondary institution is to receive 

an education and whether the person 

learns of conduct that may constitute 

sex discrimination under Title IX while 

the person was performing employmentrelated work. The Department’s view is 

that a postsecondary institution must 

consider these factors because they 

appropriately focus the inquiry on the 

primary relationship between the 

person and the postsecondary 

institution (e.g., whether the person is a 

full-time employee who enrolls in a 

class outside of work hours or a student 

who works part-time for the 

postsecondary institution as part of the 

student’s financial aid package) and the 

student-employee’s role or activities 

when the information regarding conduct 

that may constitute sex discrimination 

under Title IX was received (e.g., 

whether they were in their work 

environment or elsewhere fulfilling 

work-related responsibilities, or in class 

as a student, in the cafeteria with 

friends, or in an extracurricular 

activity). Nothing in proposed 

§ 106.44(c)(3) would prohibit a 

postsecondary institution from 

considering additional factors in 

determining whether a person is 

primarily a student or an employee. 

Employee-complainants (proposed 

§ 106.44(c)(4)). The Department 


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proposes that it would be inappropriate 

to require an employee to notify the 

Title IX Coordinator of information 

about conduct that may constitute sex 

discrimination under Title IX when the 

only employee with the information is 

the employee-complainant. The 

Department recognizes that not all 

employee-complainants may feel 

comfortable reporting sex 

discrimination to the recipient’s Title IX 

Coordinator. The Department’s current 

view is that in general, employees can 

reasonably be expected to have more 

information and capacity than students 

to notify the Title IX Coordinator that 

they were subjected to sex 

discrimination if they want the recipient 

to take action because employees are 

required to be trained on the recipient’s 

reporting requirements. In view of this, 

the Department currently believes that 

the decision as to whether to notify the 

Title IX Coordinator that the employee 

was subjected to sex discrimination or 

make a complaint of sex discrimination, 

including sex-based harassment, should 

be left up to the employee-complainant. 

Under proposed § 106.44(c)(4), if an 

employee-complainant tells another 

employee that they were subject to sex 

discrimination, that employee would be 

required to comply with the 

requirements under proposed 

§ 106.44(c)(1) or (2). 

Sections 106.44(d) and 106.2

‘‘Confidential employee’’ requirements 

and definition 

Current regulations: Sections 

106.30(a) and 106.44(a) require a 

recipient to respond to incidents of 

sexual harassment when the recipient 

receives notice through its Title IX 

Coordinator or any official who has 

authority to institute corrective 

measures on its behalf, or through any 

employee of an elementary school or 

secondary school. The current 

regulations do not refer to confidential 

employees, or any group of employees 

to which reporting would not obligate 

the recipient to respond. 

Proposed regulations: The 

Department proposes adding a 

definition of ‘‘confidential employee’’ 

and specifying certain requirements for 

those employees when they are 

informed of conduct that may constitute 

sex discrimination under Title IX. 

Proposed § 106.44(d) would make clear 

that an employee covered by the 

definition of ‘‘confidential employee’’ in 

proposed § 106.2 would not be required 

to notify the Title IX Coordinator when 

a person informs them of conduct that 

may constitute sex discrimination under 

Title IX. Instead, proposed § 106.44(d) 

would require a recipient to notify all 

participants in the recipient’s education 

program or activity of the identity of its 

confidential employees, if any, and 

require that a confidential employee, in 

response to a person who informs that 

employee of conduct that may 

constitute sex discrimination under 

Title IX, explain their confidential 

status and provide that person with the 

contact information of the recipient’s 

Title IX Coordinator and explain how to 

report information about conduct that 

may constitute sex discrimination under 

Title IX. 

The Department’s proposed definition 

of ‘‘confidential employee’’ would 

include three categories. The first 

category would include employees 

whose communications are privileged 

under Federal or State law associated 

with their role or duties for the 

institution. The second category would 

include employees whom the recipient 

has designated as a confidential 

resource for the purpose of providing 

services to individuals in connection 

with sex discrimination. If the employee 

also has a role or duty that is not 

associated with providing these 

services, the employee’s status as 

confidential would be limited to 

information received about sex 

discrimination in connection with 

providing these services. The third 

category would be limited to employees 

of postsecondary institutions who 

conduct human subjects-research 

studies that have been approved by the 

recipient’s Institutional Review Board 

(IRB) and that are designed to gather 

information about sex discrimination. 

Those employees’ status as confidential 

would be limited to information about 

sex discrimination received while 

conducting the approved study. 

Reasons: As explained in the 

discussion of proposed § 106.44(a), the 

Department proposes clarifying the 

action a recipient must take in response 

to sex discrimination in its education 

program or activity. 

OCR received comments through 

listening sessions and the June 2021 

Title IX Public Hearing that stressed the 

importance of access to confidential 

resources for persons who have been 

subjected to sex-based harassment, 

including sexual violence. For example, 

one stakeholder emphasized the need 

for schools to have a mechanism for 

confidential reporting to allow students 

to receive supportive measures without 

disclosing their identity to their harasser 

or initiating a Title IX investigation. 

The Department explained in the 

preamble to the 2020 amendments that 

because postsecondary institutions have 

the discretion to decide who to 

authorize as officials with authority 

under current § 106.30(a), a 

postsecondary institution can ‘‘decide 

that other employees should remain 

confidential resources to whom a 

student at a postsecondary institution 

might disclose sexual harassment 

without automatically triggering a report 

by the employee to the Title IX 

Coordinator.’’ 85 FR 30526. As a result 

of the proposed changes reflected in 

proposed § 106.44(a) and (c), it is 

important to clarify a recipient’s 

responsibilities in relation to its 

employees who provide confidential 

services. 

The proposed role for confidential 

employees would take into account the 

need for a recipient to find out about 

and promptly take action in response to 

sex discrimination in its education 

program or activity, as discussed 

regarding proposed § 106.44(a) through 

(c), and the importance of ensuring that 

persons who have experienced 

discrimination also have access to 

confidential services when appropriate. 

Under proposed § 106.44(d), a 

confidential employee would not be 

expected to report what they learn about 

sex discrimination to the Title IX 

Coordinator, but the recipient would be 

required to take certain steps to ensure 

that persons who report sex 

discrimination to a confidential 

employee understand the employee’s 

confidential status and how to report 

sex discrimination to the Title IX 

Coordinator. Ensuring that some 

employees are able to receive 

confidential reports of sex 

discrimination, including sex-based 

harassment, is a longstanding priority 

for the Department and would be 

consistent with the practices of many 

schools both before and since the 2020 

amendments. The Department also 

notes that making confidential 

employees available may also result in 

more individuals feeling comfortable to 

seek the support they need to address 

the immediate effects of sex-based 

harassment or other sex discrimination 

and ultimately find the confidence to 

make the recipient aware of incidents 

that may otherwise have gone 

unreported. 

The first category of confidential 

employees would include employees 

whose communications are privileged 

under Federal or State law associated 

with their role or duties. For example, 

physicians and clergy affiliated with the 

institution could be considered 

confidential employees under this first 

category. Current § 106.45(b)(1)(x) 

prohibits a recipient from using 

information protected under a legally 

recognized privilege, and current 

§ 106.45(b)(5)(i) prohibits a recipient 


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from using a party’s records that are 

made or maintained by a physician, 

psychiatrist, psychologist, or other 

recognized professional or 

paraprofessional in connection with the 

provision of treatment to the party. The 

proposed regulations would provide 

similar protection for legally recognized 

privileges by designating employees 

who hold these privileges as 

confidential employees. The proposed 

regulations are also consistent with 

prior OCR guidance and the exemption 

of pastoral and professional counselors 

from reporting obligations under the 

Clery Act. See 2014 Q&A on Sexual 

Violence at 22; 34 CFR 668.46(c)(8). 

The second category of confidential 

employees would include employees 

designated by the recipient to provide 

confidential services to individuals who 

may have experienced or been accused 

of engaging in conduct that may 

constitute sex discrimination. The 

information received by these 

employees about sex discrimination 

would also be confidential. For 

example, a recipient may designate 

certain employees as advisors to 

students in its grievance procedures. 

These advisors would serve as 

confidential employees while providing 

services to individuals in connection 

with those grievance procedures. 

Employees designated as confidential 

resources would not qualify as 

confidential employees while engaged 

in other activities, such as teaching or 

coaching. This category of confidential 

employees would enable recipients to 

offer confidential resources to students 

without creating overly broad 

exceptions. This proposed exception is 

consistent with the Clery Act’s 

exemption of employees from reporting 

obligations as campus security 

authorities when they are acting as a 

pastoral or professional counselor. 34 

CFR 668.46(a), (b)(4)(iv), (c)(8). 

The third category of confidential 

employees would apply in the limited 

situation in which employees of 

postsecondary institutions are 

conducting IRB-approved studies 

involving human subjects that are 

designed to gather information about 

sex discrimination. For example, 

participants in clinical trial or other 

research studies on sexual violence in 

campus settings may reveal information 

about personal experiences of sex-based 

harassment. If an employee were 

required to report these incidents to the 

Title IX Coordinator, the researchers 

would need to alert participants as part 

of the process for consenting to 

participate in the study, i.e., during the 

informed consent process. This would 

likely deter some individuals with 

relevant experience from participating 

in or making full disclosures in the 

study. Sharyn J. Potter & Katie M. 

Edwards, Institutional Title IX 

Requirements for Researchers 

Conducting Human Subjects Research 

on Sexual Violence and other Forms of 

Interpersonal Violence at 3–4 (2015), 

https://scholars.unh.edu/pirc_reports/3 

(stating that if researchers inform 

participants that the researchers must 

disclose names revealed during 

research, ‘‘[t]he result will likely be that 

students with relevant victimization or 

perpetration experiences will not 

volunteer to participate in research, 

which would likely deter from 

participating the very people intended 

to be the primary subjects of the 

investigation. This may severely restrict 

the ability of researchers to gather 

credible data . . . .’’). To enable 

postsecondary institutions to conduct 

effective research studies on sex 

discrimination, including studies that 

may assist postsecondary institutions 

with prevention or effective responses 

to incidents of sex discrimination, the 

proposed regulations would treat the 

employees who conduct these studies as 

confidential employees while they are 

working in their capacity as researchers 

for the study. See id. at 5. This 

designation as a confidential employee 

would be limited to information 

received while conducting the approved 

study. 

To make informed decisions about 

reporting sex discrimination, 

individuals must understand how to 

report such conduct and which 

employees will provide information 

they receive about such conduct to the 

recipient’s Title IX Coordinator. 

Proposed § 106.44(d)(1) would require a 

recipient to inform students and any 

other participants in the recipient’s 

education program or activity of the 

identity of any confidential employees. 

In addition, under proposed 

§ 106.44(d)(2), whenever someone 

informs a confidential employee that 

sex discrimination, including sex-based 

harassment or related peer retaliation, 

may have occurred, the confidential 

employee would be required to explain 

to that person the employee’s 

confidential status and how to report 

the conduct. As part of this explanation, 

the confidential employee would be 

required to provide that person with the 

contact information of the recipient’s 

Title IX Coordinator and explain how to 

report information about conduct that 

may constitute sex discrimination under 

Title IX. These steps would help to 

ensure that individuals who provide 

information about sex discrimination to 

confidential employees understand 

what further steps they can take if they 

would like to report sex discrimination 

or make a Title IX complaint. 

Nothing in proposed § 106.44(c), (d), 

or (e) is intended to exempt a recipient’s 

employees—including confidential 

employees—from complying with any 

obligations under Federal, State, or local 

law to report sex discrimination, 

including sex-based harassment. In 

addition, § 106.6(f), to which the 

Department does not propose making 

any changes, makes clear that the 

requirements in the Title IX regulations 

do not alleviate recipient’s obligations 

to its employees under Title VII. The 

exceptions set out in proposed 

§ 106.44(d) pertain only to a recipient’s 

obligations under Title IX and would 

not alleviate any obligations a recipient 

may have under Title VII to respond to 

information about sex discrimination. 

Section 106.44(e) Public awareness 

events 

Current regulations: None. 

Proposed regulations: In proposed 

§ 106.44(e), the Department clarifies that 

when a postsecondary institution’s Title 

IX Coordinator is notified about conduct 

that may constitute sex-based 

harassment under Title IX that was 

provided by a person during a public 

event held on the postsecondary 

institution’s campus or on an online 

platform sponsored by a postsecondary 

institution to raise awareness about sexbased harassment associated with a 

postsecondary institution’s education 

program or activity, the postsecondary 

institution would not have to take 

action in response to this information 

under proposed §§ 106.44, 106.45, or 

106.46 unless the information reveals an 

immediate and serious threat to the 

health or safety of students or other 

persons in the postsecondary 

institution’s community. Although a 

postsecondary institution would not be 

obligated to act in response to 

information about individual allegations 

shared during a public awareness event 

in the manner set out in proposed 

§§ 106.44, 106.45, or 106.46, a 

postsecondary institution would be 

required to use this information to 

inform its efforts to prevent sex-based 

harassment, including by providing 

tailored training to address alleged sexbased harassment in a particular part of 

its education program or activity or at a 

specific location when information 

indicates there may be multiple 

incidents of sex-based harassment. 

Reasons: OCR received feedback from 

stakeholders during the June 2021 Title 

IX Public Hearing explaining that 

information about sex-based harassment 


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may be revealed during events like Take 

Back the Night, which are intended to 

empower students and promote public 

awareness about sex-based harassment. 

These stakeholders explained that 

requiring employees to report 

allegations of sex-based harassment that 

they learn about during these events 

discourages students from participating 

in such events. 

After considering these issues, it is 

the Department’s current understanding 

that it would be appropriate under Title 

IX to take into account the many 

benefits provided by public awareness 

events hosted by postsecondary 

institutions or organized independently 

by a postsecondary institution’s 

students to raise awareness about sexbased harassment, such as Take Back 

the Night or other forums at which a 

postsecondary institution’s students 

may disclose experiences with sexbased harassment. In view of this, the 

Department’s proposed regulations at 

proposed § 106.44(e) would include an 

exception to the required action that a 

postsecondary institution must take in 

response to information about conduct 

that may constitute sex-based 

harassment under Title IX, specifically 

that when a postsecondary institution’s 

Title IX Coordinator is notified of 

information about conduct that may 

constitute sex-based harassment under 

Title IX that was provided by a person 

during public awareness events, the 

postsecondary institution would not be 

obligated to act in response to the 

information under proposed §§ 106.44, 

106.45, or 106.46. This proposed 

exception would apply only to public 

awareness events held on a 

postsecondary institution’s campus or 

through an online platform sponsored 

by a postsecondary institution because 

those are the events where it is most 

likely that a postsecondary institution’s 

employees would be present and could 

hear information about conduct that 

may constitute sex-based harassment. 

Without this exception, under proposed 

§ 106.44(f), the Title IX Coordinator 

would be required to take certain steps 

upon being notified of this information. 

The Department notes that nothing in 

proposed § 106.44(e) would obligate a 

postsecondary institution’s employees 

to attend public awareness events. If an 

employee is in attendance, the 

notification requirements under 

proposed § 106.44(c)(2) would apply to 

the employee, but the Title IX 

Coordinator’s obligations under 

proposed § 106.44(f) upon being notified 

by the employee of information about 

conduct that may constitute sex-based 

harassment under Title IX would not 

apply. Under proposed § 106.44(b), the 

recipient and the recipient’s Title IX 

Coordinator would still be obligated to 

monitor the recipient’s education 

program or activity for barriers to 

reporting information about conduct 

that may constitute sex discrimination 

under Title IX. The Department also 

notes that nothing in proposed 

§ 106.44(e) would prohibit a 

postsecondary institution from sharing 

the contact information of the 

recipient’s Title IX Coordinator or 

information about how to report 

discrimination, including sex 

discrimination, at public awareness 

events. 

The proposed exception would not 

apply when a Title IX Coordinator is 

notified of information shared during a 

public awareness event about conduct 

that may constitute sex-based 

harassment under Title IX that reveals 

an immediate and serious threat to the 

health or safety of students or other 

persons in the postsecondary 

institution’s community. The language 

regarding immediate and serious threat 

to health or safety is aligned with the 

language regarding emergency removals 

in current § 106.44(c) and proposed 

§ 106.44(h) and should be interpreted in 

the same way as those terms are 

interpreted in the context of emergency 

removals, as explained in the discussion 

of proposed § 106.44(h). As noted in the 

discussion of proposed § 106.44(c)(1), 

the Department agrees with the position 

stated in the preamble to the 2020 

amendments that employees at 

elementary schools and secondary 

schools stand in a unique position with 

respect to responding to sex 

discrimination affecting their students, 

and the Department anticipates that it 

would be appropriate to limit the 

proposed exception for public 

awareness events to postsecondary 

institutions. In addition, proposed 

§ 106.44(e) would not bar a recipient 

from taking additional action in 

response to information about conduct 

that may constitute sex-based 

harassment shared at a public awareness 

event if it so chooses. 

Proposed § 106.44(e) would also 

clarify that although when a 

postsecondary institution’s Title IX 

Coordinator is notified of information 

about conduct that may constitute sexbased harassment under Title IX 

provided by a person at a public 

awareness event, the postsecondary 

institution would not be obligated to act 

in response to this information under 

proposed §§ 106.44, 106.45, or 106.46, 

the postsecondary institution would be 

required to use this information to 

inform its efforts to prevent sex-based 

harassment. This use would include 

providing tailored training to address 

alleged sex-based harassment in a 

particular part of its education program 

or activity or at a specific location, or 

when information indicates there may 

be multiple incidents of sex-based 

harassment or when information 

indicates a single incident of sex-based 

harassment has occurred and there is a 

reasonable likelihood that additional 

incidents may occur at that location in 

the future. Depending on the 

information provided, a postsecondary 

institution might also take steps to 

protect against sex discrimination at a 

particular location, such as enhanced 

lighting, more frequent safety patrols. 

The proposed regulations would 

provide a postsecondary recipient with 

discretion to determine the specific 

manner in which it integrates the 

information from disclosures into its 

prevention training. The Department 

also notes that proposed § 106.44(e) is 

consistent with the requirements of at 

least one State law regarding responses 

by postsecondary institutions to 

information provided during public 

awareness events. See, e.g., N.Y. Educ. 

Law § 6446(1)(e) (2015) (stating that an 

institution is not required to respond to 

information disclosed during a public 

awareness event but permitting the 

institution to use the information 

provided at such events to inform its 

education and prevention efforts). 

In addition, § 106.6(f), to which the 

Department does not propose any 

changes, makes clear that the 

requirements under the Title IX 

regulations do not alleviate a recipient’s 

obligations to its employees under Title 

VII. The public awareness event 

exception set out in proposed 

§ 106.44(e) would pertain only to a 

postsecondary institution’s obligations 

under Title IX and would not alleviate 

any obligations a postsecondary 

institution may have under Title VII to 

respond to information about sex-based 

harassment. 

Section 106.44(f) Title IX Coordinator 

Requirements 

Current regulations: Section 106.44(a) 

requires a recipient’s Title IX 

Coordinator to promptly contact the 

complainant to discuss supportive 

measures and to explain the process for 

filing a formal complaint. Current 

§ 106.44(b)(1) states that a recipient 

must follow a grievance process that 

complies with § 106.45 in response to a 

formal complaint. 

Proposed regulations: Proposed 

§ 106.44(f) states that a recipient must 

require its Title IX Coordinator to take 

the following steps upon being notified 

of conduct that may constitute sex 


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discrimination under Title IX: (1) treat 

the complainant and respondent 

equitably; (2) notify the complainant of 

the grievance procedures as described in 

proposed § 106.45, and if applicable 

proposed § 106.46, and if a complaint is 

made, notify the respondent of the 

applicable grievance procedures and 

notify the parties of the informal 

resolution process as described in this 

section if available and appropriate; (3) 

offer and coordinate supportive 

measures as described in proposed 

§ 106.44(g), as appropriate, to the 

complainant and respondent to restore 

or preserve that party’s access to the 

recipient’s education program or 

activity; (4) in response to a complaint, 

initiate the grievance procedures or 

informal resolution process under 

§ 106.44(k) as described in proposed 

§ 106.45, and if applicable proposed 

§ 106.46; (5) in the absence of a 

complaint or informal resolution 

process, determine whether to initiate a 

complaint of sex discrimination that 

complies with the grievance procedures 

described in proposed § 106.45, and if 

applicable proposed § 106.46, if 

necessary to address conduct that may 

constitute sex discrimination under 

Title IX in the recipient’s education 

program or activity; and (6) take other 

appropriate prompt and effective steps 

to ensure that sex discrimination does 

not continue or recur within the 

recipient’s education program or 

activity, in addition to remedies 

provided to an individual complainant. 

Reasons: Treat the complainant and 

the respondent equitably. The 

Department proposes retaining the 

general requirement in current 

§ 106.44(a) that a recipient must treat 

complainants and respondents 

equitably, although the Department 

proposes moving this requirement from 

current § 106.44(a) to proposed 

§ 106.44(f)(1) to align with other 

changes made to this provision. The 

Department also proposes eliminating 

the two examples of equitable treatment 

that appear in current § 106.44(a) 

because they may be underinclusive. It 

is the Department’s current view that 

equitable treatment requires more than 

providing supportive measures to the 

parties and following grievance 

procedures prior to imposing 

disciplinary sanctions. This is explained 

in greater detail in the discussion of 

proposed §§ 106.45(b)(1) and (h)(3) and 

(4). 

The Department proposes modifying 

the two examples of equitable treatment 

and moving them to proposed 

§ 106.45(h)(3) (a recipient must provide 

remedies to a complainant as 

appropriate when it determines sex 

discrimination occurred) and proposed 

§ 106.45(h)(4) (a recipient must follow 

grievance procedures that comply with 

proposed § 106.45, and if applicable 

proposed § 106.46, before imposing 

disciplinary sanctions against a 

respondent), which address a recipient’s 

treatment of the parties in the context of 

its sex discrimination grievance 

procedures. Proposed § 106.45(b)(1) 

would require a recipient’s grievance 

procedures to treat the parties equitably, 

consistent with the requirement in 

proposed § 106.44(f)(1). 

Notify the complainant of the 

recipient’s sex discrimination grievance 

procedures and inform the respondent 

of the grievance procedures if a 

complaint of sex discrimination is 

made. The Department proposes 

§ 106.44(f)(2)(i) to ensure that a 

complainant receives information about 

their right to request that the recipient 

initiate its grievance procedures. This 

provision is consistent with current 

§ 106.44(a), which requires the Title IX 

Coordinator, as part of the recipient’s 

general response to actual knowledge of 

sexual harassment, to promptly contact 

the complainant about the availability of 

supportive measures and the process for 

making a complaint with the recipient. 

Because a recipient will not always 

learn of conduct that may constitute sex 

discrimination under Title IX directly 

from a complainant, proposed 

§ 106.44(f)(2) would require a Title IX 

Coordinator, when the complainant’s 

identity is known, to notify the 

complainant of the grievance 

procedures for sex discrimination 

complaints, and proposed § 106.44(k) 

would give the recipient the discretion 

to offer an informal resolution process, 

if available and appropriate. When a 

Title IX Coordinator does not know the 

identity of the complainant, the Title IX 

Coordinator may provide information 

about the recipient’s grievance 

procedures to the individual, if any, 

who reported conduct that may 

constitute sex discrimination under 

Title IX. 

Proposed § 106.44(f)(2)(ii) would also 

require a Title IX Coordinator to provide 

the respondent with information about 

its sex discrimination grievance 

procedures if a complaint is made that 

obligates the recipient to initiate those 

procedures. Although a recipient would 

be required to publish notice of its 

grievance procedures under proposed 

§ 106.8(b)(2), providing this information 

to the respondent at the time the 

recipient initiates its sex discrimination 

grievance procedures would ensure the 

respondent, and the respondent’s 

parent, guardian, or other authorized 

legal representative in the case of an 

elementary school or secondary school 

student, is adequately apprised of the 

grievance procedures and the rights they 

afford the respondent. Proposed 

§ 106.44(f)(2)(ii) would also require a 

Title IX Coordinator to provide the 

parties with information about informal 

resolution, if available and appropriate, 

when a complaint of sex discrimination 

is made. 

Offer and coordinate supportive 

measures to the complainant and 

respondent to restore or preserve that 

party’s access to the recipient’s 

education program or activity. Proposed 

§ 106.44(f)(3) would require a Title IX 

Coordinator to offer and coordinate 

supportive measures to restore or 

preserve a party’s access to the 

recipient’s education program or 

activity. The Department proposes 

requiring the Title IX Coordinator to not 

only offer but also ‘‘coordinate’’ 

supportive measures. The Department 

added this coordination requirement, 

which is not in current § 106.44(a), to 

align this provision with proposed 

§ 106.8(a)(1), which would require a 

recipient to designate and authorize a 

Title IX Coordinator to coordinate its 

efforts to comply with its 

responsibilities under the regulations, 

including the Title IX Coordinator’s 

responsibility to provide supportive 

measures to the complainant and 

respondent to restore or preserve a 

party’s access to the recipient’s 

education program or activity. A more 

detailed explanation of the types of 

supportive measures that are available 

to a complainant or a respondent is 

included in the discussion of supportive 

measures in proposed § 106.44(g). 

In response to a complaint, initiate 

the applicable grievance procedures or 

informal resolution process. In many 

instances, a recipient and its Title IX 

Coordinator will learn of conduct that 

may constitute sex discrimination under 

Title IX when a complaint is made. In 

these circumstances, the recipient must 

initiate its grievance procedures under 

proposed § 106.45, and if applicable 

proposed § 106.46. These grievance 

procedures, each of which permit 

recipients to offer an informal resolution 

process, are explained in greater detail 

in the discussion of individual sections 

in proposed §§ 106.45 and 106.46. 

Determine whether to initiate a 

complaint when a sex discrimination 

complaint is not made. When a Title IX 

Coordinator is notified of conduct that 

may constitute sex discrimination under 

Title IX, but a complaint has not been 

made and an informal resolution 

process has not been initiated, the 

Department currently believes that a 

Title IX Coordinator must determine 


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whether to initiate a complaint of sex 

discrimination that complies with the 

applicable grievance procedures as 

described in proposed § 106.45, and if 

applicable proposed § 106.46. A Title IX 

Coordinator would do so after 

determining, on a case-by-case basis, 

that initiating the recipient’s grievance 

procedures is necessary to address 

conduct that may constitute sex 

discrimination under Title IX in the 

recipient’s education program or 

activity. As explained in the discussion 

of proposed § 106.44(c), the Department 

continues to recognize the importance 

of complainant autonomy in 

decisionmaking about whether to 

request that the recipient initiate its 

grievance procedures or participate in 

the recipient’s grievance procedures. 

Therefore, the Department currently 

believes a recipient should honor a 

complainant’s request not to proceed 

with a complaint investigation when 

doing so is consistent with a recipient’s 

obligation to ensure it operates its 

education program or activity free from 

sex discrimination. 

The 2020 amendments authorize the 

Title IX Coordinator to initiate the 

grievance procedures in current § 106.45 

by signing a ‘‘formal complaint’’ as 

defined in current § 106.30, while 

clarifying that doing so does not make 

the Title IX Coordinator a complainant 

or party for purposes of the complaint 

or the grievance procedures under 

current § 106.45. The 2020 amendments 

do not explain under what 

circumstances a Title IX Coordinator 

may initiate a formal complaint; 

however, the preamble to the 2020 

amendments states that the regulations 

‘‘leave recipients flexibility to 

investigate allegations even where the 

complainant does not wish to file a 

formal complaint where initiating a 

grievance process is not clearly 

unreasonable in light of the known 

circumstances.’’ 85 FR 30131. The 

preamble provides one example of when 

a Title IX Coordinator might initiate a 

complaint—when presented with 

allegations ‘‘against a potential serial 

sexual perpetrator’’—but gives no 

guidance other than this example on 

what factors a Title IX Coordinator 

should consider when determining to 

initiate the recipient’s grievance 

procedures. Id. 

The Department also offers its current 

understanding about when a Title IX 

Coordinator should initiate grievance 

procedures even though the 

complainant elected not to make a 

complaint. Consistent with the example 

provided in the preamble to the 2020 

amendments, a Title IX Coordinator 

should initiate a complaint when the 

alleged conduct presents an immediate 

and serious threat to the health or safety 

of a complainant or other persons or 

would prevent the recipient from 

affording a nondiscriminatory 

environment for all students. To make 

this decision, a Title IX Coordinator 

may weigh the following factors, which 

take into account both a recipient’s duty 

to ensure equal access to its education 

program or activity and a 

nondiscriminatory educational 

environment as well as the wishes of an 

individual complainant not to proceed 

with a complaint investigation. 

• Risk of additional sex 

discrimination. Circumstances that 

suggest a risk of additional acts of sex 

discrimination, including when there 

have been other reports or complaints of 

sex discrimination by the respondent or 

a history or pattern of behavior that 

suggests a risk of future discrimination 

by the respondent (e.g., when a 

respondent continues to subject others 

to unwelcome sexual attention despite 

multiple unsuccessful efforts to address 

the respondent’s behavior and prevent 

continued harassment); 

• Seriousness of alleged sex 

discrimination. Whether the alleged 

incident involved violent acts, threats of 

violence or retaliation, or use of a 

weapon; 

• Age and relationship of the parties. 

The parties’ ages and roles within the 

recipient’s education program or 

activity, including whether there is a 

power imbalance between them, such as 

when a professor is accused of sexually 

harassing a student; and 

• Scope of alleged sex discrimination. 

Information suggesting a pattern, 

ongoing sex discrimination, or conduct 

alleged to have occurred in a setting in 

which multiple individuals were 

impacted, such as in a particular 

graduate program, in an extracurricular 

activity, on in connection with a 

specific athletic team. 

In addition to considering the alleged 

sex discrimination itself and the factors 

above, the Department notes that a Title 

IX Coordinator may also consider 

factors such as the ones below in 

determining whether to initiate a 

complaint to address sex discrimination 

in the recipient’s education program or 

activity: 

• Availability of evidence to assess 

whether sex discrimination occurred. 

When corroborating evidence such as 

video footage, visitor logs, 

communication records, written 

documentation, or multiple known 

witnesses is available, a Title IX 

Coordinator may determine that 

initiating the recipient’s grievance 

procedures would be an effective step to 

address sex discrimination. The lack of 

such information could weigh against 

initiating the recipient’s grievance 

procedures absent a cooperating 

complainant, in which case a recipient 

would still need to comply with 

proposed § 106.44(f)(6) and require its 

Title IX Coordinator to take other 

appropriate prompt and effective steps 

to ensure that sex discrimination does 

not continue or recur within the 

recipient’s education program or 

activity, in addition to providing 

remedies to an individual complainant; 

and 

• Disciplinary Sanctions. A Title IX 

Coordinator may also consider whether 

the alleged conduct, if established, 

might require removal of the respondent 

from campus or another disciplinary 

restriction on the respondent to end the 

discrimination and prevent its 

recurrence, a factor that could counsel 

in favor of initiating the recipient’s 

grievance procedures because 

disciplinary sanctions are not otherwise 

permitted. 

Finally, the Department notes that in 

cases of sex discrimination by a 

recipient’s employee, a Title IX 

Coordinator may be more likely to 

initiate the recipient’s grievance 

procedures, even if the individual 

complainant does not wish to do so, 

because of considerations specific either 

to the affected workplace or the students 

with which the employee works, if any. 

Other appropriate prompt and 

effective steps to ensure that sex 

discrimination does not continue or 

recur within the recipient’s education 

program or activity. As explained in the 

discussion of proposed § 106.44(a), the 

Department has reconsidered the facts 

and circumstances and now believes 

current § 106.44 may not ensure that a 

recipient with information about 

conduct that may constitute sex 

discrimination under Title IX in its 

education program or activity will take 

steps to end the discrimination and 

prevent its recurrence. The current 

standard permits a recipient to limit its 

response to the steps required in current 

§ 106.44(a) when the recipient has 

knowledge that sexual harassment has 

or may have taken place. The 

Department currently proposes in 

§ 106.44(a) to require a recipient to take 

other appropriate prompt and effective 

responsive action to address sex 

discrimination in its education program 

or activity by taking steps to end any sex 

discrimination that has occurred, 

prevent its recurrence, and remedy its 

effects in every case. A recipient has 

this obligation because it is required 

under Title IX to operate its education 

program or activity free from sex 


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discrimination. To effectuate that 

obligation, the Department proposes 

requiring additional steps when a Title 

IX Coordinator is notified of conduct 

that may constitute sex discrimination 

under Title IX. These steps are designed 

to ensure a recipient addresses sex 

discrimination by taking appropriate 

prompt and effective steps to end any 

discrimination, prevent its recurrence, 

and remedy its effects. 

Specifically, proposed § 106.44(f)(6) 

would require a Title IX Coordinator 

who has been notified of conduct that 

may constitute sex discrimination under 

Title IX to take other appropriate 

prompt and effective steps to ensure 

that sex discrimination does not 

continue or recur. These steps would be 

taken in addition to any supportive 

measures a Title IX Coordinator may 

offer an individual complainant under 

proposed § 106.44(f)(3) or remedies a 

complainant may receive if a recipient 

either initiates its grievance procedures 

under proposed § 106.45, and if 

applicable proposed § 106.46, and 

determines that sex discrimination 

occurred or affords the parties an 

informal resolution process. Proposed 

§ 106.44(f)(6) would further recognize 

that, consistent with the recipient’s 

obligation to operate its education 

program or activity free from sex 

discrimination, a Title IX Coordinator 

must take appropriate prompt and 

effective steps outside of a recipient’s 

grievance procedures, when necessary, 

to ensure that sex discrimination does 

not continue or recur. 

In addition, under proposed 

§ 106.44(f)(6), a Title IX Coordinator 

would be required, as appropriate, to 

take other prompt and effective steps in 

response to information about conduct 

that may constitute sex discrimination 

under Title IX regardless of whether the 

recipient has also initiated its grievance 

procedures or facilitated an informal 

resolution process for the parties. The 

Department proposes these additional 

steps to address two distinct concerns. 

First, sex discrimination that is not 

investigated through a recipient’s 

grievance procedures or addressed by 

the parties through an informal 

resolution process, because a complaint 

was not made or initiated by the 

recipient’s Title IX Coordinator or the 

parties did not elect to participate in an 

informal process when offered to them, 

may nevertheless require prompt and 

effective action by the recipient so sex 

discrimination does not continue or 

recur in its education program or 

activity. And second, even if a 

recipient’s grievance procedures or 

informal resolution process fully resolve 

the parties’ needs, sex discrimination in 

the recipient’s education program or 

activity may impact individuals beyond 

the parties. In such cases, Title IX’s 

prohibition on sex discrimination 

would also require a recipient’s Title IX 

Coordinator to take additional prompt 

and effective steps to ensure sex 

discrimination does not continue or 

recur for the recipient’s broader 

educational community. To address 

both concerns, the Department proposes 

in § 106.44(f)(6) that a recipient’s Title 

IX Coordinator would need to take other 

prompt and effective steps to ensure a 

nondiscriminatory educational 

environment for the complainant and 

for others within its educational 

environment who are affected by the 

discrimination, as appropriate under the 

circumstances. 

Although proposed § 106.44(f)(6) does 

not prescribe the specific steps that are 

necessary for a recipient to ensure that 

the sex discrimination does not 

continue or recur in its education 

program or activity, in all cases, a Title 

IX Coordinator’s response must be 

effective to end the sex discrimination, 

prevent its recurrence, and remedy its 

effects. To ensure an effective response, 

the proposed regulation would require 

that a Title IX Coordinator must 

consider the report of possible sex 

discrimination in light of information 

reasonably available to the Title IX 

Coordinator. A Title IX Coordinator 

must also ensure that the response 

addresses any risk to the complainant of 

harm that is related to the allegations of 

sex discrimination, if a recipient did not 

initiate its grievance procedures or 

facilitate an informal resolution process, 

and to others within the school’s 

educational environment who may be 

impacted by the discrimination. The 

steps a Title IX Coordinator would need 

to take will vary depending on the 

nature of the allegations, the source of 

the complaint, the individuals involved 

(e.g., elementary school or secondary 

school students, undergraduate or 

graduate students, faculty/staff), the size 

and structure of the school, and other 

factors that the recipient deems 

relevant. If a Title IX Coordinator’s 

actions are ineffective at ending the sex 

discrimination and preventing its 

recurrence, the Title IX Coordinator 

would need to take additional, different 

steps, to fulfill a recipient’s obligation to 

address sex discrimination in its 

education program or activity. 

If a recipient addressed a complaint 

through its grievance procedures, it may 

have access to specific information that 

the sex discrimination had an impact on 

the recipient’s educational community 

beyond the parties. Even if a recipient 

did not investigate a complaint through 

its grievance procedures, the recipient’s 

Title IX Coordinator may have access to 

information, including past reports to 

the Title IX Coordinator, corroborating 

information such as video footage, 

visitor logs available to the recipient, or 

written documentation, and any other 

relevant information that suggest the 

conduct has impacted the complainant 

and other members of the recipient’s 

educational community. A Title IX 

Coordinator may need to speak with the 

respondent, if known, and other 

students or individuals who may have 

witnessed the reported sex 

discrimination or have information 

about the sex discrimination to 

determine what occurred or whether 

additional steps are necessary to ensure 

that sex discrimination does not 

continue or recur in its education 

program or activity. 

The Department recognizes that it 

would not always be necessary for a 

Title IX Coordinator to take additional 

steps to ensure that sex discrimination 

does not continue or recur in its 

education program or activity, for 

example, when the sex discrimination 

involved only the parties and did not 

impact others participating or 

attempting to participate in the 

recipient’s education program or 

activity, and the sex discrimination was 

addressed fully through a recipient’s 

grievance procedures or informal 

resolution process. However, in all 

cases, when a recipient’s response to sex 

discrimination is not effective to end the 

sex discrimination and prevent the 

recurrence of discrimination for the 

complainant or the recipient’s broader 

educational community, under the 

proposed regulations, a Title IX 

Coordinator must reevaluate the 

recipient’s response and implement 

other approaches. In addition, when a 

Title IX Coordinator fails to take prompt 

and effective steps to end sex 

discrimination and prevent its 

recurrence, a recipient would be 

responsible for remedying the 

discriminatory effects of its inaction. 

For example, if a Title IX Coordinator 

delayed responding to a report of sex 

discrimination and as a result the 

complainant continued to experience 

sex discrimination that caused the 

complainant’s grades and health to 

suffer, the recipient would be 

responsible for remedying these harms. 

This may require a recipient to permit 

the complainant to retake courses or 

resubmit assignments without academic 

or financial penalty or to reimburse the 

complainant for counseling expenses 

incurred while the recipient delayed 

responding. Affording remedies in these 


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circumstances is also consistent with 

the proposed definition of ‘‘remedies’’ 

in § 106.2. Thus, in all cases, Title IX’s 

prohibition on sex discrimination 

would require a recipient’s Title IX 

Coordinator to take prompt and effective 

steps, including by remedying the 

effects of sex discrimination, to ensure 

that discrimination does not continue or 

recur in its education program or 

activity. 

When a recipient has not initiated its 

grievance procedures, a Title IX 

Coordinator may need to take nondisciplinary action to stop the 

discrimination, such as instituting 

restrictions on contact between the 

parties, barring a third party from 

visiting the recipient’s campus, or other 

action consistent with the recipient’s 

policies. In some cases, after taking 

these steps, a Title IX Coordinator may 

learn of additional incidents or obtain 

information that causes the Title IX 

Coordinator to revisit whether to initiate 

a complaint under the recipient’s 

grievance procedures. For example, if 

the Title IX Coordinator determines that 

the recipient must impose disciplinary 

sanctions on a respondent to effectively 

end the sex discrimination and prevent 

its recurrence, the Title IX Coordinator 

would need to initiate the recipient’s 

grievance procedures under proposed 

§ 106.45, and if applicable proposed 

§ 106.46, and would be able to impose 

sanctions only if there is a 

determination that the respondent 

violated the recipient’s policy 

prohibiting sex discrimination. 

However, in many cases, a Title IX 

Coordinator’s ability to take prompt and 

effective steps to end the sex 

discrimination and prevent its 

recurrence may not warrant imposition 

of discipline or otherwise require the 

Title IX Coordinator to initiate its 

grievance procedures. 

To ensure sex discrimination does not 

continue or recur and deny equal access 

to its education program or activity for 

a recipient’s educational community, a 

Title IX Coordinator may need to 

provide additional training for staff on 

how to respond appropriately to sex 

discrimination, monitor known risks of 

sex discrimination in programs and 

activities in which sex discrimination 

has been reported in the past, or pursue 

strategies other than discipline to 

address the conduct. For example, a 

Title IX Coordinator may need to take 

steps to repair an educational 

environment in which sex 

discrimination occurred, such as within 

a specific class, department, athletic 

team, or program. A Title IX 

Coordinator may also consider 

providing educational programming 

aimed at the prevention of sex 

discrimination. 

Finally, a Title IX Coordinator’s 

obligations under proposed 

§ 106.44(f)(6) may also include taking 

action related to a third party who is 

engaging in sex discrimination. For 

example, if a Title IX Coordinator is 

notified that a third party who is not a 

student or an employee of the recipient 

is attending events organized by the 

recipient and engaging in harassing or 

discriminatory behavior at such events, 

the Title IX Coordinator would need to 

take prompt and effective action to end 

such discrimination and prevent its 

recurrence even if no complaint is 

made. In this example, the Title IX 

Coordinator may choose to bar the third 

party from the recipient’s events or 

campus in general, or otherwise take 

appropriate prompt and effective steps 

to ensure sex discrimination does not 

continue or recur in its education 

program or activity. 

Section 106.44(g) Supportive Measures 

Current regulations: Section 106.44(a) 

of the current regulations requires a 

recipient to treat complainants and 

respondents equitably by offering 

supportive measures to a ‘‘complainant’’ 

as defined in current § 106.30, and 

following a grievance process that 

complies with current § 106.45 before 

imposing disciplinary sanctions or 

taking any action that is not a 

supportive measure with respect to a 

respondent. Current § 106.44(a) also 

requires a recipient’s Title IX 

Coordinator to promptly contact the 

complainant to discuss supportive 

measures and to explain the process for 

filing a formal complaint. 

Proposed regulations: The 

Department proposes adding several 

provisions to clarify a recipient’s 

obligation to offer supportive measures 

to a complainant or a respondent. 

Proposed § 106.44(g) would make clear 

that upon being notified of conduct that 

may constitute sex discrimination under 

Title IX, a Title IX Coordinator must 

offer supportive measures, as 

appropriate, to the complainant or 

respondent to the extent necessary to 

restore or preserve that party’s access to 

the recipient’s education program or 

activity. Proposed § 106.44(g) would 

also clarify that for allegations of sex 

discrimination other than sex-based 

harassment or retaliation, a recipient, its 

employee, or other person authorized to 

provide aid, benefit or services on the 

recipient’s behalf is not required to alter 

the conduct that is alleged to be sex 

discrimination for the purpose of 

providing a supportive measure. 

Proposed § 106.44(g)(1) provides 

examples of supportive measures that a 

recipient could deem to be appropriate, 

including but not limited to, counseling, 

extension of deadlines and other courserelated adjustments, campus escort 

services, increased security and 

monitoring of certain areas of the 

campus, restrictions on contact between 

the parties, leaves of absence, voluntary 

or involuntary changes in class, work, 

housing, or extracurricular or any other 

activity regardless of whether or not 

there is a comparable alternative, and 

training and education programs related 

to sex-based harassment. 

Proposed § 106.44(g)(2) would clarify 

that supportive measures can include 

measures that burden a respondent, 

such as requiring changes in a 

respondent’s class, work, housing, 

extracurricular or any other activity. 

Proposed § 106.44(g)(2) would, 

however, place limits on the ability of 

a recipient to impose measures that 

burden a respondent, including 

requiring that such measures are 

imposed only during the pendency of a 

recipient’s grievance procedures under 

proposed § 106.45, and if applicable 

proposed § 106.46, requiring that they 

be terminated at the conclusion of the 

grievance procedures, and requiring that 

they must be no more restrictive of the 

respondent than necessary to restore or 

preserve the complainant’s access to the 

recipient’s education program or 

activity. In addition, under this 

proposed provision a recipient may not 

impose such supportive measures for 

punitive or disciplinary reasons. 

Proposed § 106.44(g)(4) would also 

require the recipient to provide a 

respondent burdened by a supportive 

measure with the opportunity to seek 

modification or termination of such 

measures before they are imposed, or, if 

necessary under the circumstances, as 

soon as possible after the measure has 

taken effect, by appeal to an official 

other than the one who originally 

imposed the measures. The Department 

further proposes that a recipient must 

also provide a complainant or 

respondent affected by a supportive 

measure with the opportunity to seek 

additional modification or termination 

of such supportive measure if 

circumstances change materially. 

The proposed regulations would also 

permit a recipient to modify, terminate, 

or continue supportive measures, other 

than those that burden a respondent, at 

the conclusion of grievance procedures 

or the informal resolution process 

(proposed § 106.44(g)(3)); protect 

complainant and respondent privacy by 

permitting disclosure of supportive 

measures only as necessary to provide 

them or when a recipient needs to 


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inform a party of supportive measures 

provided to another party in order to 

restore or preserve that party’s access to 

the education program or activity 

(proposed § 106.44(g)(5)); confirm that 

the Title IX Coordinator would be 

responsible for offering and 

coordinating supportive measures 

(proposed § 106.44(g)(6)); require a 

recipient to consult with the IEP team, 

34 CFR 300.321, or Section 504 team, 34 

CFR 104.35(c), when implementing 

supportive measures for an elementary 

school or secondary school student with 

a disability (proposed § 106.44(g)(7)(i)); 

and suggest that when implementing 

supportive measures for a 

postsecondary student with disability, a 

recipient may consult, as appropriate, 

with the individual or office that the 

recipient has designated to provide 

support to students with disabilities 

(proposed § 106.44(g)(7)(ii)). 

Reasons: Require a recipient to offer 

supportive measures to a complainant 

or respondent. As explained in the 

discussion of amendments to regulatory 

definitions in Section II.C, ‘‘supportive 

measures’’ would be defined in 

proposed § 106.2 as non-disciplinary, 

individualized measures that are offered 

as appropriate, as reasonably available, 

without unreasonably burdening a 

party, and without fee or charge to a 

complainant or respondent to: (i) restore 

or preserve that party’s access to the 

recipient’s education program or 

activity, including temporary measures 

that burden a respondent when such 

measures are imposed for non-punitive 

and non-disciplinary reasons and are 

designed to protect the safety of the 

complainant or the recipient’s 

educational environment, or deter the 

respondent from engaging in sex-based 

harassment; or (ii) provide support to 

the complainant or respondent through 

the recipient’s grievance procedures or 

informal resolution process. 

Consistent with this definition, 

proposed § 106.44(g) would require a 

Title IX Coordinator to offer supportive 

measures not only to a complainant, but 

also to a respondent, when necessary to 

accomplish the objective of ensuring 

that party’s access to the recipient’s 

education program or activity. The 

appropriate supportive measures offered 

to a complainant or respondent would 

be determined by the recipient, as set 

out in proposed § 106.44(g), and would 

be offered and coordinated by the Title 

IX Coordinator. Proposed § 106.44(f)(3) 

and (g) would maintain the requirement 

from the current definition of 

‘‘supportive measures’’ in § 106.30 that 

a Title IX Coordinator must offer 

supportive measures to the complainant 

before or after a complaint has been 

made or when no complaint has been 

made. Depending on the circumstances, 

it might be appropriate for a Title IX 

Coordinator to offer supportive 

measures to a respondent if, and then 

after, the respondent has received notice 

of the allegations. 

In addition, the proposed regulations 

would also clarify that supportive 

measures are available for all forms of 

sex discrimination. Despite the current 

definition of ‘‘supportive measures’’ in 

§ 106.30, which states that the measures 

are available for complainants and 

respondents, current § 106.44(a) 

requires only that a recipient, in 

responding to actual knowledge of 

sexual harassment in an education 

program or activity, offer supportive 

measures to a complainant. To align 

with the current and proposed 

definitions of ‘‘supportive measures,’’ as 

well as proposed § 106.44(a), the 

Department proposes requiring a 

recipient to offer supportive measures 

whenever a Title IX Coordinator is 

notified of any type of conduct that may 

constitute sex discrimination under 

Title IX, not just sex-based harassment. 

For allegations of sex discrimination 

other than sex-based harassment or 

retaliation, proposed § 106.44(g) would 

clarify that a recipient’s provision of 

supportive measures would not require 

the recipient, its employee, or other 

person authorized to provide aid, 

benefit or services on the recipient’s 

behalf to alter the alleged discriminatory 

conduct for the purpose of providing a 

supportive measure. However, if the 

recipient determines that sex 

discrimination occurred, the recipient 

would then be required to alter or end 

the discriminatory conduct. For 

example, in response to a complaint 

about sex discrimination in grading, a 

recipient would not be required to 

change the complainant’s grade as a 

supportive measure while an 

investigation is pending. If the recipient 

determines that sex discrimination in 

grading occurred, the recipient might 

then be required to change the 

complainant’s grade when providing a 

remedy to the complainant. 

A recipient has substantial discretion 

to offer supportive measures including, 

when necessary, measures that burden a 

respondent. Proposed § 106.44(g)(1) is 

consistent with, and further clarifies, 

the definition of ‘‘supportive measures’’ 

in current § 106.30, which confers broad 

discretion on a recipient in deciding 

which supportive measures are 

reasonable. A recipient’s discretion, 

however, would be limited by the 

requirement to offer supportive 

measures to a complainant or 

respondent only as appropriate to 

restore or preserve that party’s access to 

the recipient’s education program or 

activity. Supportive measures would 

also need to be reasonable in light of the 

facts and circumstances surrounding the 

allegations and the grievance 

procedures. 

Factors a recipient may consider in 

offering such supportive measures 

include: (1) the need expressed by the 

complainant or respondent; (2) the ages 

of the parties involved, the nature of the 

allegations, and their continued effects 

on the complainant or respondent; (3) 

whether the parties continue to interact 

directly in the recipient’s education 

program or activity, including student 

employment, shared residence or dining 

facilities, class, or while using campus 

transportation; and (4) whether steps 

have already been taken to mitigate the 

harm from the parties’ interactions, such 

as implementation of a civil protective 

order. In addition to these factors, a 

recipient should consider the 

supportive measures a complainant or 

respondent may need to facilitate their 

participation in the recipient’s grievance 

procedures or informal resolution 

process. The Department recognizes that 

participation in grievance procedures or 

an informal resolution process may 

necessitate supportive measures to 

address not only the stress associated 

with participation, but also conflicts 

with classes, assignment deadlines, 

student employment, and other 

commitments that may arise as a result 

of that participation. 

Proposed § 106.44(g)(2) would also 

clarify that a recipient has the discretion 

to impose supportive measures that 

temporarily burden a respondent but 

not for the purpose of discipline or 

punishment. This is consistent with the 

current definition of ‘‘supportive 

measures,’’ which requires that 

supportive measures be nondisciplinary and non-punitive in nature 

and that they are not unreasonably 

burdensome to the non-requesting party 

as a procedural protection for a 

respondent. 34 CFR 106.30. In the 

preamble to the 2020 amendments, the 

Department also stated that any 

disciplinary sanctions described or 

listed by the recipient in its own 

grievance process would constitute 

actions that the recipient considers 

disciplinary and, thus, could not 

constitute supportive measures under 

current § 106.30. 85 FR 30182. OCR 

received feedback from stakeholders 

through the June 2021 Title IX Public 

Hearing, as well as in listening sessions, 

that requested additional options for 

supportive measures during the 

pendency of an investigation to protect 

the complainant’s access to the 


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recipient’s education program or 

activity. These stakeholders expressed 

frustration that under the 2020 

amendments, it appears that the only 

supportive measures that burden a 

respondent that a recipient can impose 

prior to resolving a complaint are 

mutual restrictions on contact and 

expressed concern that preventing a 

recipient from imposing supportive 

measures that burden a respondent 

could limit a complainant’s access to 

the recipient’s education program or 

activity even in cases in which the 

recipient concludes that it would be 

reasonable to impose such temporary 

limits on the respondent. Stakeholders 

also requested that the Department 

allow recipients to take additional 

actions to protect a complainant’s 

safety. The Department heard from 

stakeholders who wanted to ensure that 

student respondents were still able to 

access their education while the 

recipient resolves a complaint through 

its grievance procedures, emphasizing 

that a student respondent is entitled to 

procedural protections prior to the 

implementation of any supportive 

measures that would limit their 

educational access. 

After careful consideration of these 

comments, the Department proposes 

clarifying in § 106.44(g) that supportive 

measures would include measures that 

burden a respondent that are imposed 

temporarily during the pendency of a 

recipient’s grievance procedures under 

proposed § 106.45, and if applicable 

proposed § 106.46. The Department also 

proposes clarifying that supportive 

measures that burden a respondent may 

include actions that a recipient has also 

identified as possible disciplinary 

sanctions. After reweighing the facts 

and circumstances, it is the 

Department’s tentative position that 

actions by a recipient are not inherently 

disciplinary simply because they are 

listed as possible disciplinary sanctions, 

and that a recipient may utilize them as 

supportive measures as long as such 

actions are offered to restore or preserve 

a complainant’s access to a recipient’s 

education program or activity and not 

imposed for punitive or disciplinary 

purposes. In the Department’s tentative 

view, these clarifications would provide 

a recipient with more discretion to make 

case-specific judgments about how best 

to proceed in cases in which one party 

or the other will necessarily be denied 

some access to a program or activity 

during the pendency of grievance 

procedures, but only if the measures 

meet the proposed regulations’ 

requirements to ensure fairness to all 

parties as just described. In deciding 

which supportive measures are 

reasonable, a recipient should consider 

whether supportive measures that do 

not burden the respondent would 

suffice to preserve the complainant’s 

access to the recipient’s education 

program or activity and, if not, should 

consider the impact of any 

contemplated supportive measures that 

temporarily burden the respondent or 

the respondent’s access to the 

recipient’s education program or 

activity. In undertaking this evaluation, 

a recipient must ensure that a 

supportive measure preserves or 

restores the complainant’s 

nondiscriminatory access to the 

recipient’s education program or 

activity. 

In light of feedback OCR received 

from stakeholders during listening 

sessions and in connection with the 

June 2021 Title IX Public Hearing 

emphasizing the potential harm to a 

respondent’s education from the 

unnecessary or inappropriate 

implementation of supportive measures 

that burden the respondent and to 

ensure fairness for all parties to a 

recipient’s grievance procedures, the 

Department proposes, in § 106.44(g)(2), 

to include limitations on a recipient’s 

discretion to impose these measures. 

The proposed limitations would require 

that supportive measures that burden a 

respondent be imposed only during the 

pendency of the recipient’s grievance 

procedures and terminate following the 

recipient’s determination regarding the 

allegations in the complaint. Further, 

proposed § 106.44(g)(2) would require 

supportive measures that burden a 

respondent to be reasonable and no 

more restrictive than necessary to 

restore or preserve the complainant’s 

access to the education program or 

activity. The Department proposes these 

limits to ensure not only that a recipient 

considers the needs of the individuals 

involved, but also to ensure that, even 

when similar actions are involved, 

supportive measures remain distinct 

from disciplinary sanctions, which are 

consequences that can be imposed only 

following a determination that the 

respondent violated the recipient’s 

prohibition on sex discrimination. As 

explained in the discussions of 

proposed § 106.44(h) and (i), nothing in 

proposed § 106.44(g)(2) should be 

construed as precluding a recipient from 

removing a respondent from the 

recipient’s education program or 

activity on an emergency basis if the 

recipient determines that an immediate 

and serious threat to the health and 

safety of students or other persons 

justifies the removal and the 

requirements of proposed § 106.44(h) 

are otherwise followed, nor would 

proposed § 106.44(g)(2) preclude a 

recipient from placing an employee 

respondent on administrative leave from 

employment responsibilities under 

proposed § 106.44(i). 

The Department recognizes that by 

imposing supportive measures that 

burden a respondent, the recipient is 

potentially requiring the respondent to 

temporarily alter or forego access to the 

education program or activity during the 

pendency of grievance procedures. In 

view of this, the Department proposes 

requiring the recipient to provide the 

respondent procedural protections 

when imposing such measures. 

Proposed § 106.44(g)(4) would therefore 

require a recipient to provide a 

respondent with the opportunity to seek 

termination or modification of a 

burdensome supportive measure before 

the measure is imposed, or if necessary 

under the circumstances, as soon as 

possible after the measure has taken 

effect, from an impartial employee who 

is someone other than the employee 

who made the contested decision. The 

employee imposing the supportive 

measures or reviewing a request to 

terminate or modify such measures may 

be the Title IX Coordinator, who is also 

tasked with coordinating any supportive 

measures provided to the parties. 

However, to ensure that a respondent 

receives an independent review, the 

Department proposes that neither the 

Title IX Coordinator nor any other 

employee may both impose and review 

the same supportive measures. 

Moreover, proposed § 106.44(g)(4) 

would require that the recipient offer 

this opportunity to review prior to 

imposing any supportive measures that 

burden a respondent or, if necessary 

under the circumstances, as soon as 

possible after the measure has taken 

effect. Offering the opportunity for 

review prior to the imposition of the 

measures is preferable from the 

standpoint of ensuring that a respondent 

is not unnecessarily restricted or 

deprived of educational opportunities. 

Accordingly, whenever it is practical 

and appropriate, the recipient should 

provide the respondent an opportunity 

to review and seek modifications of 

burdensome supportive measures prior 

to imposing them. Yet the Department 

proposes to offer recipients flexibility 

concerning timing in order to account 

for the wide range of supportive 

measures available under proposed 

§ 106.44(g)(1) and to allow a recipient to 

take into account the respondent’s 

interests as well as other concerns, such 

as ensuring the complainant’s safety or 


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ability to access the educational 

environment. There may be times when 

offering such a review is impractical 

until after supportive measures that 

burden the respondent have been 

imposed. Proposed § 106.44(g)(4) would 

also require a recipient to provide 

complainants and respondents affected 

by a supportive measure with the 

opportunity to seek additional 

modification or termination of such 

supportive measure if circumstances 

change materially. 

Proposed § 106.44(g)(1) would 

specifically identify restrictions on 

contact as an example of a supportive 

measure that may be utilized by a 

recipient. Current § 106.30 includes 

only mutual restrictions on contact 

between the parties on the list of 

possible supportive measures. However, 

in the preamble to the 2020 

amendments, the Department responded 

to concerns that mutual restrictions on 

contact may unfairly burden a 

complainant, may be unnecessary, and 

may fail to ensure complainant safety. 

85 FR 30184. In particular, stakeholders 

had asked the Department to clarify that 

recipients may also impose non-mutual 

restrictions on the parties when 

appropriate. Although the Department 

declined to modify § 106.30 to include 

non-mutual restrictions on contact in 

the list of supportive measures, the 

preamble clarified that their absence 

from the list ‘‘does not mean that oneway no-contact orders are never 

appropriate.’’ Id. Rather, the Department 

noted in the preamble that ‘‘[a] factspecific inquiry is required into whether 

a carefully crafted no-contact order 

restricting the actions of only one party 

would meet the § 106.30 definition of 

supportive measures.’’ Id. In particular, 

the Department recognized that nonmutual no-contact orders may be 

necessary supportive measures to 

enforce restraining or protective orders 

issued by a court. Id. The preamble 

further explained that ‘‘if a one-way nocontact order does not unreasonably 

burden the other party, then a one-way 

no-contact order may be appropriate.’’ 

Id. OCR has since received feedback 

through the June 2021 Title IX Public 

Hearing and listening sessions urging 

clarification that temporary non-mutual 

no-contact orders are among those 

supportive measures that a recipient 

may offer when necessary. Stakeholders 

noted that by including mutual nocontact orders in the list of supportive 

measures without a reference to nonmutual no-contact orders, the 2020 

amendments did not accurately 

communicate what supportive measures 

a recipient may offer consistent with its 

obligations under Title IX. These 

stakeholders stated that this apparent 

gap would be particularly problematic 

in dating or domestic violence 

situations when a respondent may 

manipulate or pressure a complainant 

into violating a mutual no-contact order, 

putting the complainant at risk of 

discipline as a result of the respondent’s 

behavior. 

To ensure that recipients understand 

that they are not limited to imposing 

mutual restrictions on contact between 

the parties as supportive measures, the 

Department proposes eliminating the 

term ‘‘mutual’’ from the non-exhaustive 

list of supportive measures under 

§ 106.44(g)(1). The Department also 

reiterates that the list of possible 

supportive measures in proposed 

§ 106.44(g)(1) would be illustrative and 

not exclusive. As with other supportive 

measures, a recipient should consider 

the appropriateness and necessity of 

non-mutual restrictions on contact in 

light of the factors described above, 

including a party’s expressed need for a 

non-mutual restriction, the nature of the 

allegations and their continued effects 

on the parties, and whether and how the 

parties continue to interact in the 

recipient’s education program or 

activity. In addition, because a nonmutual restriction on contact may be a 

supportive measure that burdens a 

respondent, a recipient should also 

pursue less restrictive supportive 

measures to restore or preserve a 

complainant’s access to the recipient’s 

education program or activity when 

possible and only impose non-mutual 

restrictions on contact when necessary 

and when no other supportive measure 

will suffice. 

Finally, the Department also includes 

in proposed § 106.44(g)(1) training and 

education programs related to sex-based 

harassment as supportive measures. 

Training and education programs are 

within the scope of the current 

definition of ‘‘supportive measures’’ in 

§ 106.30, which states that supportive 

measures are designed to deter future 

sex-based harassment. The Department 

recognizes the significant role training 

plays in shaping a school and campus 

climate and environment, especially 

when the training is interactive and 

incorporates hypothetical examples of 

scenarios that may arise for recipients. 

In some circumstances, providing 

training and education programs to 

parties regarding a recipient’s policies 

may be helpful in restoring or 

preserving access to a recipient’s 

education program or activity or may 

assist the parties in ensuring meaningful 

participation in the recipient’s grievance 

procedures. Although such training may 

be implemented as a remedy following 

a determination that sex discrimination 

occurred, there may also be 

circumstances in which training is 

warranted during the pendency of the 

recipient’s grievance procedures or 

independent of the outcome of any 

grievance procedures. For example, 

when a recipient receives a complaint of 

sex-based taunts occurring at school 

athletic events, it may be clear to the 

recipient that additional training for the 

larger school community is necessary to 

preserve access to a recipient’s 

education program or activity regardless 

of the ultimate outcome of the 

complaint. 

Duration of supportive measures. 

Proposed § 106.44(g)(3) would permit a 

recipient to terminate or modify 

supportive measures that do not burden 

a respondent at the conclusion of its 

grievance procedures under proposed 

§ 106.45, and if applicable proposed 

§ 106.46, or at the conclusion of the 

informal resolution process under 

proposed § 106.44(k), or the recipient 

may continue to provide supportive 

measures, as appropriate. The 

Department did not clarify in the 2020 

amendments the duration of supportive 

measures or whether a recipient may 

continue to offer them after the 

conclusion of its sexual harassment 

grievance procedures, regardless of the 

outcome. However, the Department did 

emphasize in current § 106.44(a) that 

supportive measures could be provided 

in the absence of a complaint, and in 

that sense indicated that such measures 

would not be contingent on the outcome 

of a complaint. Under proposed 

§ 106.44(g)(3), a recipient would have 

the discretion to decide on a case-bycase basis how long supportive 

measures are needed. The same factors 

used to make the determination about 

which supportive measures to offer 

would also be relevant to 

determinations about the duration of 

those measures, including whether they 

remain necessary to restore or preserve 

a complainant’s or respondent’s access 

to the recipient’s education program or 

activity, such as when the parties 

participate in the same classes, student 

employment, residence, or dining 

facilities. Some supportive measures, 

such as those that limit interactions 

between the parties, may be necessary 

and appropriate to implement for the 

duration of the parties’ participation in 

the recipient’s education program or 

activity. Others, such as academic 

adjustments or counseling, may be 

necessary for a shorter period of time, 

also depending on the circumstances. 

As explained in the discussion of 


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proposed § 106.44(g)(2), a recipient 

would be required to terminate 

supportive measures that burden a 

respondent no later than the conclusion 

of the recipient’s grievance procedures 

under proposed § 106.45, and if 

applicable proposed § 106.46. 

Confidentiality of supportive 

measures and Title IX Coordinator’s 

role. The current definition of 

‘‘supportive measures’’ in § 106.30 

states that recipients must maintain as 

confidential any supportive measures 

provided to the complainant or 

respondent except when doing so would 

impair the recipient’s ability to provide 

the supportive measures. Proposed 

§ 106.44(g)(5) would preserve this 

requirement and clarify that a recipient 

must ensure that it does not disclose 

information about supportive measures 

to persons other than the complainant 

or respondent unless necessary to 

provide the supportive measures. A 

recipient may also inform a party of 

supportive measures provided to, or 

imposed on, the other party only if 

necessary to restore or preserve that 

party’s access to the education program 

or activity. 

Proposed § 106.44(g)(6) would 

incorporate the requirement from the 

current definition of ‘‘supportive 

measures’’ and the requirement in 

current § 106.44(a) that a recipient’s 

Title IX Coordinator is responsible for 

offering and coordinating supportive 

measures. 34 CFR 106.30 and 106.44(a). 

This responsibility would not require 

the Title IX Coordinator to be the 

employee who implements the 

supportive measures, but the Title IX 

Coordinator would ultimately be 

responsible for ensuring that the 

measures are implemented 

appropriately. For example, if the Dean 

of Academic Affairs implements a 

supportive measure during the 

recipient’s grievance procedures to 

move a student respondent from one 

laboratory to another and bar their entry 

into their previous laboratory, the Title 

IX Coordinator would be responsible for 

ensuring that the supportive measure is 

fully implemented, including that the 

necessary personnel are notified to 

deactivate the student respondent’s 

identification card or otherwise bar 

entry to the respondent’s previous 

laboratory. 

Addressing disagreements over 

supportive measures. The Department 

recognizes that a complainant and 

respondent are impacted by a recipient’s 

decisions regarding supportive 

measures. In certain situations, a 

complainant or respondent may not 

agree with a recipient’s decision to grant 

or deny a request for a specific 

supportive measure, or may object to the 

decision to modify or terminate an 

existing supportive measure. To ensure 

that parties are afforded an opportunity 

to contest a recipient’s decisions 

regarding a supportive measure, 

proposed § 106.44(g)(4) would provide a 

mechanism for parties to seek review 

from an impartial employee who is not 

the employee responsible for the 

contested decision and who has the 

authority to change the supportive 

measure, if appropriate. The Department 

further notes that although the 

opportunity to challenge a supportive 

measure exists at the time a recipient 

makes an initial decision to grant or 

deny a request for a specific supportive 

measure, or a decision to modify or 

terminate an existing supportive 

measure, proposed § 106.44(g)(4) would 

also require a respondent to allow a 

complainant or respondent to bring an 

additional challenge to a decision 

regarding a supportive measure, 

including a burdensome supportive 

measure, when circumstances change 

materially. 

Administering supportive measures 

involving a student with a disability. 

Finally, when a recipient implements a 

supportive measure involving an 

elementary school or secondary school 

student with a disability, proposed 

§ 106.44(g)(7)(i) would require the 

recipient’s Title IX Coordinator to 

consult with the student’s IEP team, 34 

CFR 300.321, or the Section 504 team, 

34 CFR 104.35(c), to help ensure the 

recipient’s implementation of 

supportive measures complies with 

IDEA and Section 504. In the case of a 

postsecondary student with a disability, 

proposed § 106.44(g)(7)(ii) would permit 

a recipient’s Title IX Coordinator, as 

appropriate, to consult with the person 

or office that the recipient designated to 

provide supports for students with 

disabilities to help ensure compliance 

with Section 504 (e.g., disability 

services office), including consideration 

of any disability-related modifications, 

adjustments, or services required under 

Section 504. Because a postsecondary 

student with a disability is not required 

to disclose a disability to their school or 

request disability-related modifications, 

adjustments, or services, proposed 

§ 106.44(g)(7)(ii) would leave it to the 

discretion of a recipient’s Title IX 

Coordinator to consult with the 

disability services office in appropriate 

circumstances. For example, when a 

party discloses to a postsecondary 

recipient’s Title IX Coordinator that 

they are a student with a disability, the 

recipient should discuss with the party 

available resources including those 

provided through the recipient’s 

disability services office. The party may 

already receive disability-related 

supports and services and may or may 

not require additional supports, or the 

party may not wish to request disabilityrelated support in connection with the 

recipient’s response to alleged sex 

discrimination. In light of a 

postsecondary student’s discretion to 

request such services, the Title IX 

Coordinator should provide the party 

information about available resources 

and honor the student’s request 

regarding whether to involve disability 

services office staff. These protections 

would also ensure that a recipient 

appropriately considers its obligations 

to comply with Federal disability rights 

laws prior to offering supportive 

measures to a student as part of its 

grievance procedures. 

Section 106.44(h) Emergency Removal 

Current regulations: Section 106.44(c) 

allows a recipient to remove a 

respondent from its education program 

or activity on an emergency basis 

following an individualized safety and 

risk analysis and a determination that 

the respondent poses an immediate 

threat to the physical health or safety of 

any student or other person arising from 

the allegations of sexual harassment. 

Current § 106.44(c) requires a recipient 

that seeks to remove a respondent on an 

emergency basis to provide the 

respondent with notice and an 

immediate opportunity to challenge the 

removal. Current § 106.44(c) further 

states that emergency removal does not 

modify any rights under the IDEA, 

Section 504, or the Americans with 

Disabilities Act of 1990 (ADA). 

Proposed regulations: The 

Department proposes broadening the 

language in current § 106.44(c), to 

permit emergency removal of a 

respondent after a recipient conducts an 

individualized assessment and 

determines that an immediate threat to 

the health or safety of any student, 

employee, or other person arising from 

the alleged sex discrimination exists, 

and moving it to proposed § 106.44(h). 

To afford protection for the full range of 

possible threats—physical and nonphysical—that a respondent may pose, 

the Department proposes removing the 

limiting term ‘‘physical’’ and adding 

language that focuses instead on the 

seriousness of the threat to a person’s 

health or safety (physical or nonphysical). 

Reasons: The Department recognizes 

the need to allow a recipient flexibility 

to remove a respondent from its 

education program or activity on an 

emergency basis, and expressly provides 


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for such removals in current § 106.44(c). 

Consistent with other changes to 

proposed § 106.44, the Department 

proposes changing emergency removal 

to permit a recipient to address threats 

arising from all forms of alleged sex 

discrimination, and not limiting 

emergency removal to alleged sex-based 

harassment. 

In addition, OCR received feedback 

through the June 2021 Title IX Public 

Hearing and listening sessions that 

current § 106.44(c) sets too high a bar to 

effectuate the provision’s goal of safety. 

Specifically, postsecondary institutions 

and safety compliance officers noted 

that by limiting emergency removals to 

circumstances in which a respondent 

poses an immediate threat to the 

physical health or safety of any student 

or other individual arising from the 

allegations of sexual harassment, 

current § 106.44(c) fails to account for 

the significant non-physical harms some 

respondents pose to complainants and 

other individuals in connection with 

alleged sex-based harassment. Some 

threats may present an immediate and 

serious non-physical threat to student 

safety that warrants the emergency 

removal of a respondent following an 

individualized assessment. For 

example, a complainant who is stalked 

by a respondent may not experience a 

physical threat as a result of stalking, 

yet the stalking could present a serious 

and immediate threat to the student’s 

mental health. The Department seeks to 

address such serious non-physical 

threats on the same basis as physical 

threats. Therefore, the Department 

proposes clarifying the scope of threat to 

encompass all serious threats to health 

and safety, which would include but is 

not limited to threats to physical health 

and safety, to account for the nonphysical threats that may justify 

immediate action. To accomplish this 

change, the Department proposes 

deleting the term ‘‘physical’’ as a 

restrictive qualifier on threats to health 

and safety and adding the term 

‘‘serious’’ to confirm that non-serious 

threats do not warrant emergency 

removal. It is the Department’s tentative 

view that this proposed revision would 

give recipients the necessary flexibility 

to ensure a safe campus community 

while protecting the rights of all 

students. The Department further notes 

that the current regulations require a 

recipient to provide ‘‘the respondent 

with notice and an opportunity to 

challenge the decision immediately 

following the removal,’’ 34 CFR 

106.44(c), a protection that the proposed 

regulations retain. Nothing in the 

current or proposed regulations would 

preclude a respondent from bringing an 

additional challenge to the emergency 

removal at a later time if circumstances 

have changed or new facts come to light 

that warrant reconsideration of the 

recipient’s decision. 

Section 106.44(i) Administrative Leave 

Current regulations: Section 106.44(d) 

states that ‘‘nothing in this subpart 

precludes a recipient from placing a 

non-student-employee respondent on 

administrative leave during the 

pendency of a grievance process’’ 

consistent with current § 106.45, 

provided that in doing so a recipient 

must not modify any rights available to 

a respondent under Section 504 or the 

ADA. 

Proposed regulations: The 

Department proposes maintaining 

current § 106.44(d) in proposed 

§ 106.44(i) with minor revisions. The 

Department proposes changing ‘‘nothing 

in this subpart’’ to ‘‘nothing in this 

part,’’ and clarifying that administrative 

leave would be permitted during the 

pendency of the recipient’s grievance 

procedures. 

Reasons: The Department proposes 

changing ‘‘nothing in this subpart’’ to 

‘‘nothing in this part’’ to align with 

other proposed changes to the 

regulations, including the relocation of 

the proposed definitions from subpart D 

to subpart A. The Department also 

proposes removing the term ‘‘nonstudent’’ to clarify that a recipient may 

place any employee respondent on 

administrative leave. This change would 

allow a recipient to treat its employees 

similarly with respect to the conditions 

of their employment by allowing the 

recipient to place both studentemployees and non-student-employees 

on administrative leave when 

appropriate. The Department also 

proposes removing the reference to 

‘‘grievance process that complies with 

§ 106.45’’ and clarifying that this 

provision would apply to the recipient’s 

grievance procedures, which encompass 

the grievance procedures under 

proposed § 106.45, and if applicable 

proposed § 106.46 The Department 

proposes this change to ensure that the 

recipient has discretion to place an 

employee respondent on administrative 

leave while following grievance 

procedures described in proposed 

§ 106.45, and if applicable proposed 

§ 106.46. 

Section 106.44(j) Recipient Prohibition 

Current regulations: Current 

§ 106.71(a) includes a requirement that 

a recipient must keep confidential the 

identities of ‘‘any individual who has 

made a report or complaint of sex 

discrimination, including any 

individual who has made a report or 

filed a formal complaint of sexual 

harassment, any complainant, any 

individual who has been reported to be 

the perpetrator of sex discrimination, 

any respondent, and any witness, except 

as may be permitted by’’ FERPA or its 

regulations or required by law or to 

carry out the purposes of Title IX. 

Proposed regulations: In proposed 

§ 106.44(j), the Department would limit 

a recipient’s ability to disclose the 

identities of parties, witnesses, or other 

participants when conducting an 

informal resolution process under 

proposed § 106.44(k), implementing 

grievance procedures under proposed 

§ 106.45, and if applicable proposed 

§ 106.46, and requiring a Title IX 

Coordinator to take any other 

appropriate steps under proposed 

§ 106.44(f)(6). The Department would 

prohibit a recipient from disclosing the 

identity of a party, witness, or others 

participating in the above-referenced 

processes except when the person 

whose identity would be disclosed has 

consented to the disclosure, when 

permitted by FERPA, when required by 

law, or to carry out the purposes of Title 

IX. 

Reasons: As explained in the 

discussion of proposed § 106.44(a), a 

recipient has a duty under Title IX to 

operate its education program or activity 

free from sex discrimination. The 

Department’s tentative view is that, in 

order to effectuate Title IX in this 

regard, a recipient must refrain from 

disclosing the identities of parties, 

witnesses, and others participating 

subject to the exceptions listed in 

proposed § 106.44(j) because such 

disclosures are likely to chill 

participation in the recipient’s efforts to 

address sex discrimination. 

Current § 106.71(a) requires the 

recipient to keep confidential the 

identities of the parties or witnesses 

except for reasons required by law, 

permitted by FERPA, necessary to carry 

out Title IX responsibilities, or when the 

parties themselves permit disclosure of 

their own identities. The Department 

proposes changes to this prohibition on 

disclosure for clarity and also proposes 

moving this prohibition to proposed 

§ 106.44 because it relates to a 

recipient’s broader responsibilities to 

address information about conduct that 

may constitute sex discrimination in its 

program or activity, as addressed in 

proposed § 106.44, and does not identify 

conduct that constitutes ‘‘retaliation,’’ as 

defined in proposed § 106.2. 

The Department proposes modifying 

the protection of this provision to apply 

beyond parties and witnesses to also 


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include others participating in the 

informal resolution process, grievance 

procedures, and other appropriate steps 

taken by the Title IX Coordinator. 

Others participating in these processes 

may include advisors, parents, 

guardians, or other authorized 

representatives for the parties, an 

interpreter for a person with limited 

English proficiency, or a notetaker who 

provides services as a reasonable 

modification for a person with a 

disability. Without a prohibition on the 

recipient disclosing their identities, 

some of these other individuals may be 

reluctant to participate in the recipient’s 

Title IX processes. Their lack of 

participation could, in turn, impair the 

recipient’s efforts to address information 

about conduct that may constitute sex 

discrimination, including by affecting 

the equitable treatment of the 

complainant and respondent as required 

by proposed §§ 106.44(f)(1) and 

106.45(b)(1). In addition, the proposed 

change aligns with how these 

individuals are described elsewhere in 

the proposed regulations, including in 

proposed § 106.71, and would provide 

clarity while ensuring comprehensive 

coverage. 

The Department also seeks to provide 

clarity by relocating the prohibition on 

a recipient disclosing the identity of 

persons participating in any way in its 

Title IX processes to proposed 

§ 106.44(j) because this requirement is 

not limited to retaliation, which is the 

subject of proposed § 106.71. The 

Department’s tentative position is that 

this change would reduce confusion and 

enhance clarity about the scope of a 

recipient’s obligation to keep these 

persons’ identities confidential. As in 

current § 106.71(a), proposed § 106.44(j) 

would prohibit a recipient from 

disclosing the identities of parties, 

witnesses, or others participating in the 

recipient’s Title IX processes unless one 

of the stated exceptions applies. The 

Department proposes retaining the 

stated exceptions from current 

§ 106.71(a) with minor changes in 

wording to be consistent with the 

proposed regulations. The prohibition 

in proposed § 106.71(a) on ‘‘retaliation,’’ 

as defined in proposed § 106.2, would 

also continue to apply to any 

intimidation, threat, coercion, or 

discrimination by the recipient for the 

purpose of retaliation, including 

disclosures about persons participating 

in any of the recipient’s Title IX 

processes. In the preamble to the 2020 

amendments, the Department explained 

that unnecessary exposure of these 

persons’ identities for any reason may 

lead to retaliation: 

[U]nnecessarily exposing the identity of 

any individual who has made a report or 

complaint of sex discrimination, including 

any individual who has made a report or 

filed a formal complaint of sexual 

harassment, any complainant, any individual 

who has been reported to be the perpetrator 

of sex discrimination, any respondent, and 

any witness, may lead to retaliation against 

them and [the Department] would like to 

prevent such retaliation. 

85 FR 30537. Through the June 2021 

Title IX Public Hearing, OCR heard 

support for this prohibition because this 

type of disclosure may directly raise the 

risk of, and even encourage, retaliation. 

These stakeholders observed that once 

the information is released by the 

recipient, students may take sides and 

engage in retaliation against parties, 

witnesses, and those involved in 

administering the grievance procedures. 

In addition, stakeholders noted that 

some students may not choose to share 

with their classmates or family members 

that they reported, made a complaint, or 

participated in the recipient’s grievance 

procedures, and disclosures by others 

could result in disclosures to those 

individuals. The Department notes that 

the same may be true for employees 

who may choose not to share their 

participation with colleagues. The 

Department also reiterates that if the 

disclosure were made for retaliatory 

purposes as discussed by stakeholders, 

then it would constitute retaliation and 

would be prohibited by proposed 

§ 106.71(a). However, the Department’s 

tentative view is that, in addition to a 

disclosure made for retaliatory 

purposes, any disclosure for reasons 

other than those permitted or required 

by proposed § 106.44(j) may chill 

reporting of sex discrimination or 

participation in the recipient’s efforts to 

address sex discrimination. Therefore, 

the Department’s tentative position is 

that, independent of its obligation to 

prohibit retaliation, including its own 

retaliatory disclosure of the identities of 

parties, witnesses, or other participants 

under proposed § 106.71, the recipient 

must not disclose these identities other 

than as provided in proposed § 106.44(j) 

so that the recipient’s own actions do 

not create a barrier to these individuals’ 

participation in the recipient’s efforts to 

address information that may constitute 

sex discrimination. In this regard, the 

Department’s proposal would clarify 

that a recipient’s disclosure of the 

identity of a party, witness, or other 

participant except as otherwise 

specified, is prohibited. 

Section 106.44(k) Informal Resolution 

Process 

Current regulations: Section 

106.45(b)(9) allows a recipient to offer 

an informal resolution process that does 

not involve a full investigation and 

adjudication, such as mediation, at any 

time prior to reaching a determination 

regarding responsibility. This section 

also requires a recipient to provide a 

written notice to the parties disclosing 

the allegations; the requirements of the 

informal resolution process, including 

the circumstances under which it 

precludes the parties from resuming a 

formal complaint arising from the same 

allegations; that at any time prior to 

agreeing to a resolution, any party has 

the right to withdraw from the informal 

resolution process and resume the 

grievance process with respect to the 

formal complaint; and any 

consequences resulting from 

participating in the informal resolution 

process, including the records that will 

be maintained or could be shared. 

Recipients must first obtain the parties’ 

voluntary, written consent to the 

informal resolution process. 

There are currently several 

restrictions on a recipient’s discretion to 

offer an informal resolution process. A 

recipient must not offer or facilitate an 

informal resolution process to resolve 

allegations that an employee sexually 

harassed a student; require informal 

resolution as a condition of enrollment 

or continuing enrollment, or 

employment or continuing employment, 

or enjoyment of any other right, the 

waiver of the right to an investigation 

and adjudication of formal complaints 

of sexual harassment; require the parties 

to participate in an informal resolution 

process; or offer an informal resolution 

process unless a formal complaint is 

filed. 

Proposed regulations: The 

Department proposes adding 

§ 106.44(k)(1), which would specify that 

a recipient may offer an informal 

resolution process at any time prior to 

determining whether sex discrimination 

occurred, unless there are allegations 

that an employee engaged in sex 

discrimination toward a student or such 

a process would conflict with Federal, 

State, or local law. Proposed 

§ 106.44(k)(1) would also state that a 

recipient that provides an informal 

resolution process must, to the extent 

necessary, also require its Title IX 

Coordinator to take other appropriate 

prompt and effective steps to ensure 

that sex discrimination does not 

continue or recur within the recipient’s 

education program or activity. 


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The Department proposes clarifying 

that a recipient would have discretion 

regarding whether to offer an informal 

resolution process at any time prior to 

determining under proposed § 106.45, 

and if applicable proposed § 106.46, 

whether sex discrimination occurred, 

which is a point not explicitly 

addressed in the current regulations. 

The Department also proposes, at 

§ 106.44(k)(1)(i) and (ii), making clear 

that this discretion would include the 

recipient’s authority to determine 

whether informal resolution is 

appropriate and to decline to offer 

informal resolution regardless of one or 

more of the parties’ wishes, including, 

for example, if the recipient determines 

that the alleged conduct would present 

a future risk of harm to others. Proposed 

§ 106.44(k)(1)(i) would also make clear 

that a recipient may offer informal 

resolution without first requiring that a 

complaint be made; rather, a recipient 

has discretion to determine whether it is 

appropriate to offer an informal 

resolution process when it receives 

information about conduct that may 

constitute sex discrimination under 

Title IX, or a complaint of sex 

discrimination is made. 

The Department also proposes 

clarifying that a recipient must not 

require or pressure the parties to 

participate in an informal resolution 

process instead of the recipient’s 

grievance procedures. Proposed 

§ 106.44(k)(2) would preserve the 

current requirement that the recipient 

must obtain the parties’ voluntary 

consent to the informal resolution 

process and must not require waiver of 

the right to an investigation and 

adjudication of a complaint as a 

condition of enrollment or continuing 

enrollment, or employment or 

continuing employment, or exercise of 

any other right. 

The Department proposes keeping the 

same elements currently required for 

written notice of the informal resolution 

process and would add requirements 

that provide the parties with more 

detailed information about what an 

informal resolution process would 

entail. This would include, in proposed 

§ 106.44(k)(3), the types of potential 

terms that the parties might voluntarily 

agree to as a part of an informal 

resolution process, including, among 

others, restrictions on contact. In 

addition, proposed § 106.44(k)(3) would 

require a recipient to communicate that 

and other specified information to the 

parties before initiating an informal 

resolution process. A recipient would be 

required to communicate this 

information in writing only when 

offering informal resolution of sex-based 

harassment complaints involving a 

postsecondary student complainant or 

respondent in proposed § 106.46(j). 

Reasons: Clarification of discretion. 

The Department proposes clarifying in 

§ 106.44(k) that a recipient would have 

discretion to determine whether it is 

appropriate to offer an informal 

resolution process when it receives 

information about conduct that may 

constitute sex discrimination under 

Title IX or a complaint of sex 

discrimination is made. The proposed 

regulations would not require a 

recipient to provide an informal 

resolution process and would not 

specify the types of informal resolution 

processes that a recipient may offer to 

its students, employees, or third parties, 

in part because appropriate options 

might vary depending on the factual 

circumstances. In the elementary school 

setting, for example, options might 

include requiring the respondent to take 

steps to repair the relationship with the 

complainant without requiring the 

students to interact face-to-face, such as 

through writing or drawing an apology. 

In the postsecondary setting, an 

informal resolution process could 

involve mediation or a more complex 

restorative justice process. As the 

Department recognized in the preamble 

to the 2020 amendments, such an 

informal resolution process could 

provide ‘‘greater flexibility to recipients 

in serving their educational 

communities.’’ 85 FR 30403. An 

informal resolution process is not a factfinding, investigative process as 

specified in the grievance procedures 

under proposed § 106.45, and if 

applicable proposed § 106.46, and does 

not involve a determination of whether 

sex discrimination occurred. Instead, it 

is an alternative avenue through which 

parties may reach a resolution. The 

Department’s tentative view is that a 

recipient is in the best position to 

determine whether an informal 

resolution process would be a potential 

good fit depending upon the facts and 

circumstances, except that a recipient 

must not offer an informal resolution 

process to resolve allegations that an 

employee engaged in sex-based 

harassment toward a student. In that 

circumstance, the Department is 

concerned that it is too difficult to 

ensure that mediation or other forms of 

informal resolution would be truly 

voluntary on the part of a student who 

reports sex-based harassment by a 

recipient’s employee due to the power 

differential and potential for undue 

influence or pressure exerted by an 

employee over a student. 

Proposed § 106.44(k)(1)(i) and (ii) also 

would make clear that a recipient would 

have the discretion to determine that 

informal resolution is not appropriate 

and decline to offer it regardless of one 

or more of the parties’ wishes. This 

would clarify that a recipient has 

discretion to consider the context and 

circumstances when it receives 

information about conduct that may 

constitute sex discrimination under 

Title IX or a complaint of sex 

discrimination is made in deciding 

whether to offer an informal resolution 

option. The Department would like to 

ensure that recipients are aware of their 

flexibility regarding informal resolution, 

for example, in circumstances in which 

a recipient determines that the alleged 

conduct would present a future risk of 

harm to others and an informal 

resolution process would be 

inappropriate. This would allow a 

recipient to tailor its response to the 

needs of the parties, subject to the 

overall guardrails provided by the 

regulations. The Department also notes 

that, consistent with proposed 

§ 106.44(f)(1), a recipient must exercise 

this discretion in a manner that is 

equitable to the parties and within its 

Title IX process as a whole; it may not 

act arbitrarily or otherwise 

impermissibly in offering or declining to 

offer an informal resolution process. A 

recipient’s discretion would be further 

limited by proposed § 106.44(k)(2) 

which states a recipient must not 

require or pressure the parties to 

participate in an informal resolution 

process, and that the recipient must 

obtain the parties’ voluntary consent to 

the informal resolution process. 

Take other appropriate prompt and 

effective steps to ensure that sex 

discrimination does not continue or 

recur within the recipient’s education 

program or activity. Even if the parties 

reach an informal resolution, sex 

discrimination, including sex-based 

harassment, in the recipient’s education 

program or activity may impact 

individuals beyond the parties. In such 

cases, proposed § 106.44(k)(1) would 

require a recipient’s Title IX 

Coordinator, to the extent necessary, to 

take other appropriate prompt and 

effective steps to ensure that sex 

discrimination does not continue or 

recur within the recipient’s education 

program or activity. To ensure equal 

access to its education program or 

activity for those persons, a recipient 

may need to provide additional training 

for staff on how to respond 

appropriately to sex discrimination, 

monitor known risks of sex 

discrimination in programs and 

activities in which sex discrimination 

has been reported in the past, or pursue 


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6This provision includes an additional 

requirement that would codify an expectation from 

the preamble to the 2020 amendments regarding 

facilitators potentially serving as witnesses in a 

process under current § 106.45. Following 

comments received to the 2018 NPRM, the 

preamble to the 2020 amendments stated, ‘‘[w]ith 

respect to informal resolution facilitators 

potentially serving as witnesses in subsequent 

formal grievance processes, we leave this possibility 

open to recipients. If recipients were to accept such 

witnesses, then the Department would expect this 

possibility to be clearly disclosed to the parties as 

part of the § 106.45(b)(9)(i) requirement in the final 

regulations to provide a written notice disclosing 

any consequences resulting from participating in 

the informal resolution process, including the 

records that will be maintained or could be shared.’’ 

85 FR 30400–01. The proposed regulations would 

clarify the situations in which an informal 

resolution facilitator can serve as a witness. 

strategies other than discipline to 

address the conduct. For example, a 

recipient may need to take steps to 

repair an educational environment in 

which sex-based harassment occurred, 

such as within a specific class, 

department, athletic team, or program. 

A recipient may also consider providing 

educational programming aimed at the 

prevention of sex-based harassment. 

Deletion of requirement to file a 

formal complaint to invoke informal 

resolution. As the proposed regulations 

would no longer require a party to file 

a formal complaint, the Department 

proposes removing the requirement in 

current § 106.45(b)(9) that a recipient 

must not offer informal resolution 

unless a formal complaint has been 

filed. Under proposed § 106.44(k), a 

recipient would have discretion as to 

whether to offer an informal resolution 

process without requiring the 

complainant to make a complaint 

requesting that the recipient initiate its 

grievance procedures. Circumscribing a 

recipient’s ability to offer this process as 

an alternative to the recipient’s 

grievance procedures would undermine 

the Department’s goal of ensuring that, 

to the extent appropriate, a recipient can 

provide students and others with a 

range of effective options that are 

meaningful in their educational 

environments for addressing and 

resolving allegations of sex 

discrimination consistent with Title IX. 

The Department’s reasons for the 

proposed removal of the formal 

complaint requirement are addressed in 

greater detail in the discussion of the 

proposed definition of ‘‘complaint’’ 

(§ 106.2). 

Provide notice and ensure that the 

facilitator for the informal resolution 

process is not the same as the 

investigator or decisionmaker for 

grievance procedures involving the 

same information reported or 

complaint. Proposed § 106.44(k)(3) 

would clarify that as part of the informal 

resolution process, the recipient would 

be required to provide the parties with 

notice on a variety of points related to 

the informal resolution process. 

Proposed § 106.44(k)(3) would maintain 

all of the notice requirements of current 

§ 106.45(b)(9)(i) and add requirements 

to ensure that parties would receive 

information that is important to 

understanding the process. Specifically, 

the Department proposes that a 

recipient must explain the allegations; 

requirements of the informal resolution 

process; the right to withdraw at any 

time and initiate or resume the 

recipient’s grievance procedures; that 

agreement to a resolution would 

preclude initiating or resuming 

grievance procedures arising from the 

same allegations; a description of the 

potential terms that may be requested or 

offered in an informal resolution 

agreement; which records will be 

maintained or could be shared; a 

statement that if the recipient initiates 

or resumes its grievance procedures, the 

recipient or a party must not access, 

consider, disclose, or otherwise use 

information, including records, obtained 

solely through an informal resolution 

process as part of the investigation or 

determination of outcome of the 

complaint; and a statement that an 

informal resolution facilitator could 

serve as a witness 6 for purposes other 

than providing information obtained 

solely through the informal resolution 

process. 

Proposed § 106.44(k)(3)(ii) would 

require a recipient to explain the 

requirements of the informal resolution 

process it chooses to offer to the parties. 

This explanation could include a 

discussion about to what extent, if any, 

the proceedings will be kept 

confidential. Informal or alternative 

dispute resolution processes often are 

confidential to ensure that the parties 

engage fully and candidly in the 

process. A recipient, if it chooses, 

should inform the parties if the informal 

resolution process would be 

confidential, and how the recipient 

would respond to any admissions made 

by a party. For example, the recipient 

could inform the parties that if someone 

makes an admission of criminal activity, 

that information could be forwarded to 

relevant law enforcement authorities. 

Similarly, the recipient could specify 

that it would keep confidential any 

record obtained solely through the 

informal resolution process, as stated in 

proposed § 106.44(k)(3)(vii), unless such 

disclosure is required by law, for 

example under a subpoena. 

A recipient might also clarify the 

consequences that would follow upon 

learning of any fraud by a party to an 

informal resolution agreement. For 

example, if a recipient learns that a 

party to an informal resolution 

agreement made a material 

misstatement of a fact, or made 

fraudulent representations, that another 

party relied upon in reaching the 

agreement, then the recipient could 

decide to void the agreement and 

resume the grievance procedure or 

pursue other actions against that 

defrauding party. Finally, proposed 

§ 106.44(k)(3)(iii) would make explicit 

that the parties have the right to 

withdraw from the informal resolution 

process prior to agreeing to a resolution 

and that any party could initiate or 

resume the recipient’s grievance 

procedures. These additional 

requirements provide important 

information to the parties so that they 

have a complete understanding of all 

aspects of the informal resolution 

process. The Department notes that 

informal resolution of a complaint 

under Title IX would not necessarily 

resolve a recipient’s obligations under 

other Federal law (e.g., Title VII), State 

law, or other applicable rules or 

policies. 

In addition, proposed § 106.44(k)(4) 

would require that the facilitator of the 

informal resolution process not be the 

same person as the investigator or 

decisionmaker in the recipient’s 

grievance procedures. The Department 

proposes adding this provision to 

further protect against any improper 

access, consideration, disclosure, or 

other use of information obtained solely 

through the informal resolution process, 

or conflict of interest, in the event a 

party terminates informal resolution and 

the complaint proceeds to grievance 

procedures under proposed § 106.45, 

and if applicable proposed § 106.46. 

Potential terms that may be requested 

or offered in an informal resolution 

agreement. The Department also 

proposes adding § 106.44(k)(5), which 

would provide examples of potential 

terms that may be requested or offered 

in an informal resolution process and 

included in an agreement. Consistent 

with the other changes discussed above, 

the Department’s current view is that 

this added specificity would provide 

recipients with needed guidance about 

the contours of an informal resolution 

process. The proposed regulations 

would emphasize the voluntary nature 

of entering into an agreement as part of 

an informal resolution process and 

would also preserve a recipient’s 

discretion and flexibility to allow for 

these terms. Finally, proposed 

§ 106.44(k)(5)(ii) would incorporate 

language from the preamble to the 2020 

amendments contemplating that an 


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informal resolution agreement can 

include measures that would be 

considered remedies or disciplinary 

sanctions had the recipient determined 

that sex discrimination occurred under 

the recipient’s grievance procedures. 

See 85 FR 30401 (‘‘Informal resolutions 

may reach agreements between the 

parties, facilitated by the recipient, that 

include [measures similar to supportive 

measures] but that also could include 

disciplinary measures, while providing 

finality for both parties in terms of 

resolving allegations raised in a formal 

complaint of sexual harassment.’’). 

F. Framework for Grievance Procedures 

for Complaints of Sex Discrimination 

1. Title IX Grievance Procedures 

Grievance procedures are a critical 

component of effective enforcement of 

Title IX’s prohibition on sex 

discrimination because they ensure that 

a recipient has a process in place for 

investigating and resolving complaints 

of sex discrimination. For this reason, 

since 1975, the Title IX regulations have 

required a recipient to adopt and 

publish grievance procedures that 

provide for the prompt and equitable 

resolution of complaints of sex 

discrimination. See 34 CFR 106.8(c). 

OCR has addressed how individual 

recipients effectively implement their 

Title IX grievance procedures through 

decades of enforcement activities. See 

U.S. Dep’t of Educ., Office for Civil 

Rights, Case Resolutions Regarding Sex 

Discrimination, https://www2.ed.gov/ 

about/offices/list/ocr/frontpage/ 

caseresolutions/sex-cr.html. In addition, 

OCR has provided subregulatory 

guidance on its interpretation of the 

regulatory requirement. See, e.g., 2014 

Q&A on Sexual Violence at 12–14 

(describing appropriate elements of 

grievance procedures that provide for 

the prompt and equitable resolution of 

complaints). 

OCR’s interpretation of the 

requirement to provide prompt and 

equitable grievance procedures has 

always been informed by the due 

process rights of the persons involved in 

a public recipient’s grievance 

procedures. Although it does not 

enforce the Due Process Clause, ‘‘[t]he 

Department, as an agency of the Federal 

government, is subject to the U.S. 

Constitution, including the Fifth 

Amendment, and will not interpret Title 

IX to compel a recipient, whether public 

or private, to deprive a person of due 

process rights.’’ 85 FR 30051, n.226 

(citing 2001 Revised Sexual Harassment 

Guidance at 22). And although the Due 

Process Clause does not apply to private 

recipients, the Department’s proposed 

regulations, consistent with the 2020 

amendments, require all recipients to 

adopt grievance procedures that provide 

for the fair resolution of complaints of 

sex discrimination. Id. at 30047 

(adopting ‘‘procedures that ensure that 

Title IX is enforced consistent with both 

constitutional due process, and 

fundamental fairness, so that whether a 

student attends a public or private 

institution, the student has the benefit 

of a consistent, transparent grievance 

process with strong procedural 

protections regardless of whether the 

student is a complainant or 

respondent’’). 

The Supreme Court and other Federal 

courts have recognized that procedural 

due process requirements depend on the 

circumstances of each particular case. 

See Morrissey v. Brewer, 408 U.S. 471, 

481 (1972) (‘‘[D]ue process is flexible 

and calls for such procedural 

protections as the particular situation 

demands.’’); Gorman v. Univ. of R.I., 

837 F.2d 7, 12 (1st Cir. 1988) (‘‘Due 

process, which may be said to mean fair 

procedure, is not a fixed or rigid 

concept, but, rather, is a flexible 

standard which varies depending upon 

the nature of the interest affected, and 

the circumstances of the deprivation.’’). 

As a flexible standard, what due process 

requires will vary based on several 

factors, including the type of institution 

involved and the nature of the potential 

sanction at issue. The Supreme Court 

has stated that in the context of public 

elementary schools and secondary 

schools, procedural due process 

requires, at a minimum, notice and a 

meaningful opportunity to be heard. 

Goss v. Lopez, 419 U.S. 565, 579 (1975) 

(‘‘At the very minimum, therefore, 

students facing suspension and the 

consequent interference with a 

protected property interest must be 

given some kind of notice and afforded 

some kind of hearing.’’). In Goss, the 

Court observed that the Due Process 

Clause may require additional 

procedures for more severe sanctions. 

Id. at 584 (‘‘Longer suspensions or 

expulsions for the remainder of the 

school term, or permanently, may 

require more formal procedures.’’). In 

the context of an elementary school or 

secondary school student ‘‘facing 

temporary suspension,’’ Goss noted that 

due process entitles the student to ‘‘oral 

or written notice of the charges against 

him and, if he denies them, an 

explanation of the evidence the 

authorities have and an opportunity to 

present his side of the story.’’ Id. at 581. 

The Supreme Court emphasized that 

‘‘[t]here need be no delay between the 

time ‘notice’ is given and the time of the 

hearing,’’ noting that ‘‘[i]n the great 

majority of cases the disciplinarian may 

informally discuss the alleged 

misconduct with the student minutes 

after it has occurred.’’ Id. at 582. 

Federal appellate courts have 

generally determined that a public 

postsecondary institution’s disciplinary 

proceedings are subject to procedural 

due process requirements. See, e.g., Doe 

v. Miami Univ., 882 F.3d 579, 600 (6th 

Cir. 2018) (‘‘When a student faces the 

possibility of suspension, we have held 

that the minimum process a university 

must provide is notice of the charges, an 

explanation of the evidence against the 

student, and an opportunity to present 

his side of the story before an unbiased 

decision maker.’’) (citations omitted); 

Doe v. Cummins, 662 F. App’x 437, 442, 

445, 451 (6th Cir. 2016) (determining 

that procedural due process applies to 

disciplinary action against a student 

even when the student was placed on 

disciplinary probation and required to 

write extra papers, but was not 

suspended); Gorman, 837 F.2d at 12 

(holding that a student facing expulsion 

or suspension from a public educational 

institution is entitled to the protections 

of the Due Process Clause); Rosenfeld v. 

Ketter, 820 F.2d 38, 40 (2d Cir. 1987) 

(holding that sufficient due process was 

provided to a university student facing 

suspension when the student was given 

the opportunity ‘‘to characterize his 

conduct, put it in the proper context 

and urge that University rules not be 

enforced against him’’ and stating that a 

formal hearing was not required); Dixon 

v. Ala. State Bd. of Educ., 294 F.2d 150, 

151 (5th Cir. 1961) (holding that 

procedural due process requires some 

form of notice and hearing before public 

college students may be expelled for 

misconduct and noting that the nature 

of the hearing may vary depending on 

the particular circumstances of the 

case); Janati v. Univ. of Nev. Las Vegas 

Sch. of Dental Med., No. 2:15–cv– 

01367–APG–CWH, 2017 WL 1181571, at 

*4 (D. Nev. Mar. 29, 2017), aff’d, 738 F. 

App’x 438 (9th Cir. 2018) (holding that 

‘‘[u]niversity students likely have some 

procedural due process rights in 

academic disciplinary proceedings,’’ 

and explaining that the required process 

in the educational context includes the 

minimums of some kind of notice and 

some kind of hearing, but not a full 

judicial hearing). Courts have also made 

clear, however, that school disciplinary 

proceedings are not civil or criminal 

trials and, as such, the parties are not 

entitled to the same rights as parties in 

a civil trial or defendants in a criminal 

trial. See, e.g., Bd. of Curators of Univ. 

of Mo. v. Horowitz, 435 U.S. 78, 88 


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(1978) (‘‘A school is an academic 

institution, not a courtroom or 

administrative hearing room.’’); Doe v. 

Univ. of Ky., 860 F.3d 365, 370 (6th Cir. 

2017) (citing Cummins, 662 F. App’x at 

446) (holding that ‘‘school disciplinary 

proceedings, while requiring some level 

of due process, need not reach the same 

level of protection that would be present 

in a criminal prosecution’’); Nash v. 

Auburn Univ., 812 F.2d 655, 664 (11th 

Cir. 1987) (‘‘Due process requires that 

appellants have the right to respond, but 

their rights in the academic disciplinary 

process are not co-extensive with the 

rights of litigants in a civil trial or with 

those of defendants in a criminal 

trial.’’). 

a. The 2020 Amendments 

The Department explained in the 

preamble to the 2020 amendments that 

although the Supreme Court has held 

that sexual harassment is a form of sex 

discrimination under Title IX and set 

out the circumstances under which a 

recipient may be liable for monetary 

damages when a student or employee 

sexually harasses a student, ‘‘the 

Supreme Court’s Title IX cases have not 

specified conditions under which a 

recipient must initiate disciplinary 

proceedings against a person accused of 

sexual harassment, or what procedures 

must apply in any such disciplinary 

proceedings.’’ 85 FR 30046. More 

specifically, the Department recognized 

that ‘‘the Supreme Court has not ruled 

on what constitutional due process 

looks like in the ‘particular situation’ of 

Title IX sexual harassment 

adjudications . . . ’’ Id. at 30051 

(footnote omitted). As a result, ‘‘Federal 

appellate courts have taken different 

approaches to which specific 

procedures are constitutionally required 

under the general proposition that due 

process in the educational discipline 

context requires some kind of notice 

and some kind of opportunity to be 

heard, and for private institutions not 

subject to constitutional requirements, 

which specific procedures are required 

to comport with fundamental fairness.’’ 

Id. 

The Department nonetheless 

articulated in the 2020 amendments its 

understanding of the significant role 

due process principles play in shaping 

fair grievance procedures and affirmed 

that its understanding was consistent 

with OCR’s prior guidance that ‘‘the 

rights established under Title IX must 

be interpreted consistent with any 

federally guaranteed due process rights 

involved in a complaint proceeding’’ 

and ‘‘[p]rocedures that ensure the Title 

IX rights of the complainant, while at 

the same time according due process to 

both parties involved, will lead to sound 

and supportable decisions.’’ Id. at 30047 

n.192 (citing 2001 Revised Sexual 

Harassment Guidance at 22). Although 

the Department explained in the 

preamble to the 2020 amendments that 

‘‘[t]he grievance process [for formal 

complaints of sexual harassment] 

prescribed in the final regulations [in 

§ 106.45] is important for effective 

enforcement of Title IX and is consistent 

with constitutional due process and 

conceptions of fundamental fairness,’’ it 

also recognized that ‘‘constitutional due 

process does not require the specific 

procedures included in the § 106.45 

grievance process [for formal complaints 

of sexual harassment].’’ Id. at 30053. 

The Department further explained that 

‘‘each of the procedural requirements in 

§ 106.45 is prescribed because the 

Department views the requirement as 

important to ensuring a fair process for 

both parties rooted in the fundamental 

due process principles of notice and 

meaningful opportunities to be heard.’’ 

Id. 

In adopting very specific 

requirements for grievance procedures 

for formal complaints of sexual 

harassment, the Department explained 

that it had ‘‘determined that the current 

regulatory reference to ‘grievance 

procedures’ that are ‘prompt and 

equitable’ does not adequately prescribe 

a consistent, fair, reliable grievance 

process for resolving allegations of Title 

IX sexual harassment.’’ Id. at 30240. The 

Department stressed that it adopted 

these additional requirements for sexual 

harassment complaints to help 

recipients ‘‘respond meaningfully to 

allegations of sexual harassment 

(including sexual assault) on campuses, 

while also providing due process 

protections for both parties.’’ Id. at 

30048. It explained that ‘‘[t]he § 106.45 

grievance process is designed for the 

particular ‘practical matters’ presented 

by allegations of sexual harassment in 

the educational context.’’ Id. at 30053 

(footnote omitted). The Department also 

asserted that the grievance procedure 

requirements it adopted for complaints 

of sexual harassment ‘‘build upon the 

foundation set forth in the Department’s 

guidance, yet provide the additional 

clarity and instruction missing from the 

Department’s guidance as to how 

recipients must provide for the needs of 

complainants, with strong procedural 

rights that ensure due process 

protections for both complainants and 

respondents.’’ Id. at 30049. The 

Department further stated ‘‘[w]e believe 

that the procedures in the § 106.45 

grievance process will ensure that 

recipients apply a fair, truth-seeking 

process that furthers the interests of 

complainants, respondents, and 

recipients in accurately resolving sexual 

harassment allegations.’’ Id. 

b. Feedback From Stakeholders 

Regarding the Grievance Procedures in 

Current § 106.45 

Having had some experience with the 

implementation of the 2020 

amendments, stakeholders representing 

elementary school and secondary school 

teachers, administrators, and 

professional staff, postsecondary 

institution administrators and faculty, 

students and parents, professional 

organizations, advocacy groups, and 

States Attorneys General stressed to 

OCR, in listening sessions and through 

the June 2021 Title IX Public Hearing, 

that the Department should revise the 

grievance procedures required under 

current § 106.45 to account for concerns 

and challenges that this implementation 

presented across these settings. To avoid 

confusion, the preamble discussion 

refers to the procedures set out in 

proposed §§ 106.45 and 106.46 as 

‘‘grievance procedures,’’ even though 

the preamble to the 2020 amendments 

generally refers to procedures required 

under current § 106.45 as a ‘‘grievance 

process.’’ 

Elementary schools and secondary 

schools. OCR received significant 

feedback from stakeholders related to 

the unique needs of elementary schools 

and secondary schools as well as 

requests to reduce some of the burdens 

the grievance procedures requirements 

imposed on these schools. These 

stakeholders said the 2020 amendments 

related to grievance procedures 

impeded instead of effectuated efforts to 

comply with Title IX. Based on their 

experiences attempting to comply with 

the 2020 amendments, elementary 

school and secondary school 

stakeholders overwhelmingly reported 

that the current regulations taken as a 

whole are unworkable for elementary 

schools and secondary schools. 

Administrators at elementary schools 

and secondary schools described their 

struggle to implement the grievance 

procedures under the current 

regulations and expressed the need for 

grievance procedures that would allow 

for more flexibility. For example, 

stakeholders shared that the grievance 

procedures should permit them to 

quickly separate children in response to 

some incidents of sex-based harassment, 

such as when administrators of 

elementary schools and secondary 

schools need to be able to immediately 

address certain behavior on the 

playground. Stakeholders also stressed 

the need for grievance procedures in 


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that setting that allow schools to address 

possible sex discrimination early and 

proactively to promote student and 

campus safety. These stakeholders 

urged the Department to exempt 

elementary schools and secondary 

schools from the provisions in current 

§ 106.45 that impose a lengthy timeline. 

These provisions include, for example, 

requiring a recipient to provide written 

notice to the parties of allegations 

potentially constituting sex-based 

harassment with sufficient time to 

prepare a response before any initial 

interview; providing written notice of 

the logistic details and purpose of all 

meetings, including interviews and 

hearings, with sufficient time to prepare 

to participate; and building in ten days 

for parties to respond to a summary of 

the evidence obtained as part of the 

investigation (current 

§ 106.45(b)(2)(i)(B), (b)(5)(v), and 

(b)(5)(vi)). Stakeholders explained that 

these and other provisions prevent 

schools from handling incidents when 

they arise and significantly delay their 

ability to respond to sex-based 

harassment when it occurs. 

OCR also received feedback from 

multiple stakeholders that a process that 

may have taken days under an 

elementary school or secondary school’s 

previous grievance procedures now 

takes several months under the 2020 

amendments because of these and other 

time-consuming requirements, 

including the need to create an 

investigative report for the parties’ 

review and written response at least ten 

days prior to a hearing or other time of 

determination (current 

§ 106.45(b)(5)(vii)). Other stakeholders 

urged the Department to establish 

different grievance procedures for 

elementary schools and secondary 

schools than those required for 

postsecondary institutions, noting their 

view that the 2020 amendments were 

clearly focused on postsecondary 

institutions. 

Postsecondary institutions. OCR also 

heard from postsecondary institution 

stakeholders that the procedures in 

current § 106.45 are overly prescriptive 

and burdensome in ways that impede 

their response to sexual harassment, 

similar to concerns raised regarding 

application of the procedures to 

elementary schools and secondary 

schools. These stakeholders objected to 

the 2020 amendments as setting out 

regulations that micromanaged 

disciplinary processes at postsecondary 

institutions, significantly limiting their 

ability to resolve sexual harassment 

allegations promptly and equitably 

through grievance procedures that 

function effectively in their educational 

environment. The Department also 

heard from stakeholders in 2022 in 

meetings held under Executive Order 

12866, after the NPRM was submitted to 

OMB, that application of the grievance 

procedures as required by the 2020 

amendments at some recipients extends 

the process for resolving complaints, to 

the detriment of all parties. 

Stakeholders also objected to certain 

provisions that they said, based on 

experience, had discouraged reporting 

of sexual harassment. For example, as 

noted in the discussion of proposed 

§ 106.46(f) and (g), some postsecondary 

institutions described the live hearing 

and cross-examination requirements as 

too prescriptive and burdensome to 

apply effectively. They questioned the 

utility of live hearings, noting that much 

of the information elicited during a 

hearing relates to questions that were 

asked and answered during an 

investigation. Stakeholders reported to 

OCR that they had observed a reduction 

in complaints filed and greater 

reluctance to move forward with 

grievance procedures as a result of the 

live hearing and cross-examination 

requirements in the 2020 amendments. 

Employee-complainants and 

respondents. OCR also heard from a 

variety of stakeholders about the 

negative effect of current § 106.45 on a 

recipient’s ability to handle complaints 

of sex-based harassment involving 

employees. Some of these stakeholders 

expressed general concern about the 

lack of clarity in the 2020 amendments 

on how Title VII interacts with Title IX 

in instances of employee-on-employee 

harassment allegations. Other 

stakeholders suggested that incidents of 

sex-based harassment involving 

employees as a complainant or 

respondent be removed in their entirety 

from the proposed Title IX regulations 

and instead handled by a recipient 

under its existing Title VII procedures, 

while still others suggested that the 

Title IX regulations that govern 

employee respondents be revised so that 

they are less prescriptive than the 

procedures required in current § 106.45. 

A number of stakeholders commented 

that applying the requirements in 

current § 106.45 to sexual harassment 

complaints involving an employee 

respondent is unworkable because they 

are overly and unnecessarily 

burdensome, noting that those 

requirements were designed with 

students as the primary focus. Some of 

these stakeholders expressed the view 

that some aspects of current § 106.45, 

specifically the live hearing with crossexamination requirement, make it 

difficult for recipients to address sexual 

harassment in situations where a 

complainant or witness declines to 

submit to cross-examination. These 

stakeholders expressed concern that in 

these situations, current § 106.45 has 

negatively impacted their handling of 

sexual harassment allegations involving 

their employees. Some stakeholders also 

voiced concerns that because the 

requirements of current § 106.45 apply 

to sexual harassment allegations 

involving all of a recipient’s employees, 

including at-will employees, recipients 

may not discipline at-will employees for 

sexual misconduct in the same way that 

they can address other forms of 

misconduct by such employees. 

Third-party complainants and 

respondents. OCR also heard from 

stakeholders that current § 106.45 

exceeds the appropriate bounds of the 

procedural protections required to 

ensure fairness when applied to thirdparty complainants and respondents. 

One stakeholder suggested that a 

recipient should not be required to 

implement highly prescriptive 

procedures prior to restricting campus 

access for a third-party visitor who the 

recipient determined had engaged in 

sexual harassment on campus. The 

stakeholder noted that it would be 

excessive to require, for example, a 

hearing with cross-examination before 

imposing such restrictions on a visitor. 

Additional concerns. Finally, the 

current regulations include detailed 

grievance procedure requirements only 

for complaints of sexual harassment. 

OCR heard from stakeholders that they 

need guidance regarding what 

provisions are necessary to ensure the 

prompt and equitable resolution of 

complaints of sex discrimination other 

than sex-based harassment. 

Stakeholders asserted that sexual 

harassment should not be singled out, 

and asked the Department to adopt 

uniform standards for grievance 

procedures that apply to all complaints 

of sex discrimination. 

2. The Department’s Proposed Revisions 

to Title IX’s Grievance Procedure 

Requirements 

a. Overall Considerations and 

Framework 

The Department has preliminarily 

determined that certain grievance 

procedure requirements are appropriate 

for, and necessary to effectuate, Title 

IX’s nondiscrimination mandate with 

respect to all types of sex discrimination 

complaints at all types of recipients. In 

addition, the Department has 

preliminarily determined that certain 

additional procedural protections are 

appropriate for one particular subset of 


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sex discrimination complaints—those 

concerning sex-based harassment 

involving at least one student at a 

postsecondary institution. The 

Department recognizes the concerns 

expressed by stakeholders that current 

§ 106.45 may limit the ability of 

recipients across a wide range of 

settings and serving a large variety of 

students to respond promptly and 

effectively to sex-based harassment. The 

Department also recognizes the 

importance of recipients having clarity 

about grievance procedures necessary to 

ensure full implementation of Title IX. 

The requirement that a recipient adopt 

grievance procedures dates back to 1975 

and has remained constant in the 

Department’s Title IX regulations, 

including the 2020 amendments—it 

provides that a recipient must adopt and 

publish grievance procedures that 

provide for the prompt and equitable 

resolution of sex discrimination 

complaints. 34 CFR 106.8(c). The 

Department’s proposed regulations take 

into account both this longstanding 

requirement and the concerns expressed 

about the 2020 amendments, and would 

provide for appropriate procedural 

protections that account for the age, 

maturity, and level of independence of 

students in various educational settings, 

the particular contexts of employees and 

third parties, and the need to ensure 

that recipients have grievance 

procedures that provide for prompt and 

equitable resolution of sex 

discrimination complaints in their 

respective settings. 

Elementary schools and secondary 

schools. In light of the stakeholder 

concerns described above, the 

Department proposes that grievance 

procedures that apply to complaints of 

sex discrimination at elementary 

schools and secondary schools must 

account for the younger student 

population and unique context for 

students attending these schools, which 

operate educational environments that 

are distinct from those attended by 

postsecondary students. In addition to 

compulsory attendance rules and the 

need for age-appropriate standards for 

classroom behavior, certain adults (i.e., 

parents, guardians, or other authorized 

legal representatives) have a legal right 

to be present and provide assistance to 

their student in Title IX grievance 

procedures in the elementary school 

and secondary school setting. This legal 

authorization for an adult representative 

does not apply to most students at 

postsecondary institutions. Elementary 

schools and secondary schools also 

work with children for whom a lengthy 

process is less effective at preventing 

the recurrence of sex discrimination. 

Younger students are less likely to 

appreciate the causal connection 

between prior behavior and any 

subsequent discipline imposed after 

lengthy grievance procedures, possibly 

rendering the delayed discipline less 

effective at deterring similar conduct in 

the future. 

Postsecondary institutions. The 

Department recognizes that 

postsecondary institutions operate 

education environments that are distinct 

from elementary schools and secondary 

schools and serve a student population 

who are older, more likely to be living 

apart from a parent or guardian, and 

generally function with more 

independence from parents or 

guardians. The Department also 

recognizes that parents or guardians do 

not typically have legal authority to 

exercise rights on behalf of a 

postsecondary student, by virtue of the 

student’s age, in a way that they, or 

another authorized legal representative, 

would have for a student in elementary 

school or secondary school, under 

proposed § 106.6(g). Students at 

postsecondary institutions are therefore 

required to self-advocate in grievance 

procedures related to alleged sex-based 

harassment that involves their own 

conduct or experiences, but also may 

have more need, especially 

postsecondary students who are newly 

independent, for additional procedural 

protections and for someone to assist 

them in an advisory capacity as set out 

in proposed § 106.46(c)(2)(ii) and (e)(2). 

Also, in contrast to employees, who may 

have an employment relationship with 

the recipient of indeterminate length 

and who have protection in relation to 

sex-based harassment under Title VII as 

well as Title IX, students at 

postsecondary institutions typically are 

enrolled for a relatively short, finite 

term and do not have the protection of 

Title VII in their capacity as students. 

Therefore, the Department tentatively 

recognizes the additional procedural 

protections in proposed § 106.46, as 

uniquely accounting for the needs of 

postsecondary students in that setting. 

Employee-complainants and 

employee respondents. With respect to 

sex discrimination complaints involving 

a recipient’s employees, the Department 

tentatively recognizes the need for 

grievance procedures to ensure that a 

recipient can respond to reports of 

employee-on-employee sex-based 

harassment and other forms of sex 

discrimination involving employees 

promptly and equitably as required by 

Title IX, and also comply with its 

obligations under Title VII, using a 

framework that is suited to these types 

of complaints. This includes complaints 

involving temporary, part-time, fulltime, at-will, unionized, tenured, and 

student-employees, each category of 

whom may be entitled to unique 

grievance procedures based on their 

respective employment designations. 

The requirement that the recipient’s 

grievance procedures must be prompt 

and equitable means, in this context, 

that a recipient’s grievance procedures 

under Title IX must function well 

alongside the procedures it uses to 

implement Title VII and, to the extent 

not inconsistent, other laws and 

collective bargaining agreements that 

govern the employment relationship for 

complaints of sex-based harassment 

involving employees. The Department 

also recognizes that a recipient is not 

necessarily required by Title VII to 

apply all of the requirements in current 

or proposed § 106.45 to sex-based 

harassment complaints involving 

employees. Section 106.6(f), to which 

the Department does not propose any 

changes, makes clear that the 

requirements under the Title IX 

regulations do not alleviate a recipient’s 

obligations to its employees under Title 

VII. The requirements for grievance 

procedures for complaints of sex 

discrimination in proposed § 106.45, 

and if applicable proposed § 106.46, are 

limited to Title IX and would not apply 

to any actions a recipient would take as 

part of its Title VII obligations to its 

employees. In addition, under the 

proposed regulations, a recipient would 

retain the ability to place an employee 

on administrative leave under proposed 

§ 106.44(i) during the pendency of 

grievance procedures in proposed 

§ 106.45, and if applicable proposed 

§ 106.46. 

Third-party complainants and 

respondents. The Department’s tentative 

view is that to effectuate Title IX’s 

objective to operate its education 

programs or activities free from sex 

discrimination, a recipient’s grievance 

procedures would need to afford 

appropriate procedural protections to 

ensure the prompt and equitable 

resolution of complaints, even when 

applied to third parties. But the 

grievance procedures would not need to 

afford all the same procedural 

protections that are afforded when a 

party is a student at a postsecondary 

institution, in light of the different 

relationship the recipient has to a third 

party. The Department expects that, 

unlike a student, a third party may not 

have an ongoing connection to a 

recipient or any party to a complaint of 

sex discrimination. In addition, a third 

party’s participation or attempted 


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participation in the recipient’s 

education program or activity is likely 

to be much more limited than that of a 

student or employee. Therefore, the 

Department recognizes that these 

differences in the third party’s 

relationship to the recipient should 

inform the requirements a recipient 

must meet when responding to 

information about conduct by or 

involving a third party in its education 

program or activity that may constitute 

sex discrimination under Title IX. The 

Department views the requirements in 

proposed § 106.45 as accounting for 

these considerations. 

The Department also proposes adding 

§ 106.45(a)(2)(iv) to expressly state that 

third parties who are participating or 

attempting to participate in the 

recipient’s education program or 

activity may make complaints of sex 

discrimination under proposed § 106.45. 

Other recipients. In addition to 

elementary schools, secondary schools, 

and postsecondary institutions, Title IX 

applies to numerous other recipients 

such as State education agencies, State 

vocational rehabilitation agencies, 

public libraries, museums, and a range 

of other entities that receive Federal 

financial assistance from the 

Department. There is wide variation in 

the number and population of students 

served, the number of employees, and 

the administrative structure within 

these additional categories of recipients, 

yet all are required to provide an 

education program or activity that is 

free from sex discrimination. The 

Department views the requirements for 

grievance procedures proposed under 

§ 106.45 as affording adequate flexibility 

while providing the minimal 

requirements to ensure an equitable 

grievance procedure with respect to all 

sex discrimination complaints at these 

types of recipients. 

All claims of sex discrimination. The 

Department also recognizes that the 

grievance procedure requirements in 

current § 106.45 do not apply to all 

types of sex discrimination complaints, 

and instead are limited to complaints of 

sexual harassment. As a result, 

stakeholders representing a range of 

recipients, including elementary schools 

and secondary schools, as well as 

postsecondary institutions and 

professional associations, reported to 

OCR that after the 2020 amendments, 

they lacked guidance on what grievance 

procedures are required for all other 

types of sex discrimination complaints, 

beyond the basic requirement that their 

grievance procedures must be prompt 

and equitable. See 34 CFR 106.8(c). OCR 

previously provided recipients 

subregulatory guidance on the basic 

elements of prompt and equitable 

grievance procedures; however, the 

Department rescinded that guidance and 

did not replace it with regulations. As 

noted in the discussion of stakeholders’ 

concerns in Feedback from Stakeholders 

Regarding the Grievance Procedures in 

Current § 106.45 (Section II.F.1.b), 

stakeholders requested the Department 

restore guidance on grievance 

procedures for all forms of sex 

discrimination to ensure that recipients 

know how to satisfy their obligations 

under Title IX and how to address sex 

discrimination complaints other than 

sex-based harassment complaints. The 

Department notes concerns identified 

through OCR’s enforcement experience 

that not all recipients apply prompt and 

equitable grievance procedures to 

address sex discrimination complaints 

at their schools outside the context of 

sex-based harassment. OCR also has 

observed that some recipients make ad 

hoc decisions about complaints of 

different treatment and retaliation under 

Title IX, often without incorporating 

appropriate legal standards or involving 

the recipient’s Title IX Coordinator, and 

thereby not ensuring that complainants 

and respondents are treated equitably. 

OCR has found in some cases that 

allegations of different treatment in 

grading were handled solely through 

application of a recipient’s grading 

policies and not analyzed as sex 

discrimination even when a 

complainant alleges that the grade they 

received was the result of sex 

discrimination. This failure to involve 

the Title IX Coordinator means that 

complainants alleging sex-based grade 

disparities may be subjected to 

inconsistent processes for resolution of 

their complaints, which may or may not 

include the recipient’s grievance 

procedures. It also may prevent the Title 

IX Coordinator from identifying and 

addressing a pattern of discrimination 

in the recipient’s education program or 

activity. The Department is also aware 

of situations through OCR’s enforcement 

efforts in which recipients did not apply 

grievance procedures that comply with 

Title IX to investigate complaints of sex 

discrimination in athletics, but rather 

applied general conduct codes 

promulgated by specific sports teams. 

Such codes do not focus on sex 

discrimination, do not provide for 

measures to preserve parties’ access to 

the recipient’s education program or 

activity or to protect against retaliation, 

and do not contain many of the 

requirements and safeguards of the Title 

IX grievance procedures, with the result 

that such cases were not promptly 

investigated and addressed. 

Proposed framework. In light of these 

considerations, including this feedback 

from stakeholders and OCR’s 

enforcement experience, a portion of 

which is described above, the 

Department reviewed the requirements 

in current § 106.45 to assess whether 

they are necessary to provide the parties 

with prompt and equitable grievance 

procedures that are designed to ensure 

a fair and reliable process. The 

Department also considered the need to 

adopt a framework for the grievance 

procedures that a recipient must follow 

when responding to all complaints of 

sex discrimination in light of the 

recipient’s obligations under Title IX to 

operate its education program or activity 

free from sex discrimination, not just 

sexual harassment. 

The Department explained in the 

preamble to the 2020 amendments that 

the nature of the protections needed ‘‘in 

the ‘particular situation’ of elementary 

and secondary schools may differ from 

protections necessitated by the 

‘particular situation’ of postsecondary 

institutions.’’ 85 FR 30052 (footnotes 

omitted). The Department maintains 

this view, and also currently believes 

that the specific procedures necessary to 

afford prompt and equitable grievance 

procedures that are designed to ensure 

a fair and reliable process for sex 

discrimination complaints will differ 

based on the nature of the allegations 

(e.g., sex-based harassment or other 

forms of sex discrimination, such as 

failure to provide equitable athletic 

opportunities or pregnancy 

discrimination) and the unique 

characteristics of the individuals 

involved (e.g., age, level of 

independence, relationship to the 

recipient). The Department reaffirms its 

commitment to promulgating 

regulations that provide clear 

requirements for prompt and equitable 

grievance procedures that afford a fair 

and reliable process consistent with 

principles of due process and the rights 

of all involved. The Department’s view 

is that clear requirements for grievance 

procedures for all complaints of sex 

discrimination, not only sexual 

harassment complaints, are needed to 

provide recipients necessary clarity on 

how to afford an equitable process to 

resolve all sex discrimination 

complaints. 

The Department proposes a 

comprehensive framework for grievance 

procedures that builds upon the 

grievance procedures required under the 

2020 amendments, with certain 

modifications to address the concerns 

noted above, including to make that 

framework easier to follow and 

implement and to preserve discretion 


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for recipients to meet their Title IX 

obligations through procedures that will 

be effective in their educational 

environment. Under the Department’s 

framework, proposed § 106.45 contains 

specific requirements for grievance 

procedures that would apply to all 

complaints of sex discrimination at any 

recipient and a new proposed § 106.46 

contains additional requirements that 

would apply only to complaints of sexbased harassment involving a student 

complainant or student respondent at a 

postsecondary institution. The 

provisions the Department proposes 

limiting to grievance procedures 

required under § 106.46 include several 

requirements from current § 106.45— 

live hearings (which would be optional), 

equitable access to an investigation 

report that summarizes the relevant and 

not otherwise impermissible evidence 

in advance of a live hearing if a hearing 

is provided, and cross-examination if a 

live hearing is conducted—that 

stakeholders reported were unworkable 

and unhelpful for elementary schools 

and secondary schools in light of the 

unique educational needs of students in 

that setting. The requirements the 

Department proposes under the new 

framework would seek to clarify basic 

elements that are essential to a reliable 

and equitable process for resolving 

complaints of sex discrimination. The 

benefit of specifying these elements is to 

ensure that all recipients have 

information about what is necessary to 

satisfy the regulations’ longstanding 

requirement of ‘‘prompt and equitable 

grievance procedures.’’ 

The proposed regulations at 

§§ 106.44, 106.45, and 106.46 would 

clarify the obligations of a recipient to 

respond promptly and effectively to 

information and complaints about sex 

discrimination in its education program 

or activity in a way that ensures full 

implementation of Title IX. The 

Department invites comments on 

whether there are additional 

requirements that should be included 

in, or removed from, the current and 

proposed regulations to assist recipients 

in meeting their obligation under Title 

IX to provide an educational 

environment free from discrimination 

based on sex. The Department also seeks 

comment on whether and how any of 

the proposed grievance procedures (or 

any proposed additions from 

commenters) should apply differently to 

various subgroups of complainants or 

respondents, such as students or 

employees, or students at varying 

educational levels. 

b. Proposed § 106.45 

The Department’s tentative view is 

that the provisions in proposed § 106.45 

would establish the basic elements of a 

fair process, set clear guideposts for 

prompt and equitable grievance 

procedures, and ensure transparent and 

reliable outcomes for recipients, 

students, employees, and others 

participating or attempting to 

participate in a recipient’s education 

program or activity. These grievance 

procedure requirements would apply to 

all complaints of sex discrimination, 

including sex-based harassment, at all 

recipients. The provisions in proposed 

§ 106.45(b) include basic requirements 

that are overarching and apply at all or 

multiple stages of a recipient’s grievance 

procedures. Some of these basic 

requirements are already included, in 

whole or in part, in current § 106.45, 

such as equitable treatment of 

complainants and respondents and a 

duty to ensure that any Title IX 

Coordinator, investigator, or 

decisionmaker involved in a recipient’s 

grievance procedures does not have a 

conflict of interest or bias for or against 

an individual complainant or 

respondent or against complainants or 

respondents generally. The Department 

also proposes requiring grievance 

procedures for all sex discrimination 

complaints to include provisions 

regarding notice to the parties of 

allegations of sex discrimination 

(proposed § 106.45(c)), reasonably 

prompt timeframes for the major stages 

of a recipient’s grievance procedures 

(proposed § 106.45(b)(4)), rules 

regarding what evidence is allowed in a 

recipient’s grievance procedures and 

how a decisionmaker must weigh and 

assess the evidence (proposed 

§ 106.45(b)(6) and (7), (h)(1)), and 

provisions to ensure an adequate, 

reliable, and impartial investigation of 

sex discrimination complaints 

(proposed § 106.45(f)). These provisions 

build on the requirements of current 

§ 106.45, which the Department 

explained included specific 

requirements to afford complainants 

and respondents in complaints of sexual 

harassment ‘‘clear, strong procedural 

rights and protections that foster a fair 

process leading to reliable outcomes,’’ 

and to provide ‘‘consistency, 

predictability, and transparency as to a 

recipient’s obligations.’’ Id. at 30213; see 

also id. at 30381 (‘‘[T]he Department has 

included in the § 106.45 grievance 

process those procedural protections the 

Department has determined necessary to 

serve the critical interests of creating a 

consistent, fair process promoting 

reliable outcomes.’’). The Department 

continues to believe that all parties and 

recipients require clear guidance for 

grievance procedures that lead to fair 

and reliable outcomes. The 

Department’s current view is that the 

requirements in proposed § 106.45, 

which it adopted under the 2020 

amendments to afford fair and reliable 

outcomes in sexual harassment 

complaints under current § 106.45, and 

which it proposes modifying in these 

proposed regulations, are also an 

effective means of ensuring that 

grievance procedures for all types of sex 

discrimination complaints are equitable 

and reliable for all parties. 

Through its enforcement work, OCR 

has also recognized that reasonably 

prompt timeframes and an adequate, 

reliable, impartial investigation, among 

other requirements in proposed 

§ 106.45, are essential to ensuring a 

prompt and equitable resolution for all 

sex discrimination complaints, 

including sex-based harassment. 

Because these requirements are 

fundamental to a fair process, the 

Department anticipates that many 

schools already incorporate them in 

their grievance procedures for sex 

discrimination complaints. 

c. Proposed § 106.46 

The Department’s current position is 

that the requirements in proposed 

§ 106.46, which are incorporated from 

current § 106.45 with modifications as 

explained in greater detail in the 

discussion of individual sections in 

§ 106.46, would apply only to 

complaints of sex-based harassment 

involving a student complainant or 

student respondent at a postsecondary 

institution. These requirements afford 

protections that are appropriate to the 

age, maturity, independence, needs, and 

context of students at postsecondary 

institutions. The Department limited 

some of the provisions in the 2020 

amendments to postsecondary 

institutions for similar reasons, noting 

that ‘‘postsecondary institutions present 

a different situation than elementary 

and secondary schools because, for 

instance, most students in elementary 

and secondary schools tend to be under 

the age of majority such that certain 

procedural rights generally cannot be 

exercised effectively (even by a parent 

acting on behalf of a minor).’’ Id. at 

30052 (footnotes omitted). Further, due 

to their age and independence from 

parents and guardians, postsecondary 

institutions generally expect students to 

self-advocate as part of their educational 

experience, including by participating 

independently of parents, guardians, or 

other authorized representatives in 

disciplinary proceedings. Consistent 


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with the 2020 amendments, the 

Department aims to adopt requirements 

for grievance procedures that 

‘‘accomplish the objective of a 

consistent, predictable Title IX 

grievance process while respecting the 

fact that elementary and secondary 

schools differ from postsecondary 

institutions.’’ Id. 

The Department also recognizes that 

postsecondary students are often newly 

independent and still learning to selfadvocate. To account for this, proposed 

§ 106.46 would retain certain provisions 

from current § 106.45 that afford 

postsecondary students greater 

protections. The Department’s tentative 

view is that the additional requirements 

in proposed § 106.46 are necessary for 

students at postsecondary institutions 

who would not be entitled to have a 

parent, guardian, or other authorized 

legal representative present at meetings 

or proceedings, unlike complainants 

and respondents in complaints of sexbased harassment at elementary schools 

and secondary schools. The Department 

further submits that any delay 

associated with implementing the 

additional requirements of proposed 

§ 106.46 would not limit a 

postsecondary student’s ability to 

understand the consequences of their 

behavior in the same manner as it could 

for elementary school and secondary 

school students. Such delays may limit 

an elementary school or secondary 

school’s ability to prevent the 

recurrence of sex discrimination 

consistent with Title IX, which is of 

particular concern in the context of fulltime, full-week school attendance 

requirements in elementary school and 

secondary school settings. 

The Department’s current view is that 

the additional requirements of proposed 

§ 106.46 are also not necessary for 

others, including employees and third 

parties, who, as noted in the discussion 

of concerns raised by stakeholders in 

Feedback from Stakeholders Regarding 

the Grievance Procedures in Current 

§ 106.45 (Section II.F.1.b), have different 

relationships with postsecondary 

institutions and in the case of 

employees, may be afforded additional 

rights or protections under Title VII or 

other laws, agreements, or commitments 

by the recipient. Affording additional 

procedural requirements for 

postsecondary students is also 

consistent with the Department’s 

understanding of due process as a 

‘‘ ‘flexible’ concept dictated by the 

demands of a ‘particular situation,’ ’’ 

which in the case of postsecondary 

institutions addressing complaints of 

sex-based harassment involving a 

student complainant or respondent 

‘‘may dictate different procedures than 

what might be appropriate in other 

situations.’’ Id. 

The Department also currently 

believes that the provisions in proposed 

§ 106.46 for sex-based harassment 

complaints involving students at the 

postsecondary level may not be 

necessary to ensure an equitable process 

for other types of sex discrimination 

complaints at the postsecondary level, 

and could have the unintended 

consequence of impeding effective 

enforcement of Title IX for such 

complaints by adding requirements that 

may unnecessarily delay a recipient’s 

prompt response to possible sex 

discrimination. At this time, the 

Department views these additional 

provisions as necessary to address sexbased harassment complaints, which 

allege conduct that is highly personal 

and often of a different nature than 

other types of alleged sex 

discrimination. Sex-based harassment 

complaints may require greater 

participation by a complainant and 

respondent in grievance procedures 

than other complaints of sex 

discrimination would require. In fact, 

not all sex discrimination complaints 

will involve two parties in a contested 

factual dispute where credibility 

determinations may play a critical role. 

In many sex discrimination complaints, 

such as complaints alleging unequal 

treatment of student athletes based on 

sex, there will not be two parties whose 

conduct and credibility are closely 

scrutinized. Instead, these cases, which 

are often highly contested, require 

analysis of available data and 

information regarding the specific 

factors that apply to equal opportunity 

in athletics. Similarly, alleged different 

treatment in grading or in providing 

opportunities to benefit from specific 

programs and activities, will require a 

close analysis of grading rubrics, 

opportunities offered, and other 

evidence, if any, of impermissible sexbased different treatment. Yet sex-based 

harassment complaints subject to the 

provisions of proposed § 106.46 could, 

and often would involve a student 

respondent who faces a potential 

disciplinary sanction as a consequence 

of the grievance procedures. The 

Department submits that the risk of 

disciplinary sanction of a student 

respondent necessitates affording 

additional procedural protections to 

ensure an equitable outcome. These 

additional provisions would not be 

necessary for other complaints of sex 

discrimination that often would not 

involve a student respondent facing 

similar consequences. 

To account for all of these differences, 

under the Department’s proposed 

framework, a postsecondary institution 

responding to complaints of sex-based 

harassment involving a student 

complainant or student respondent 

would apply the provisions in proposed 

§ 106.46 in addition to the provisions 

under proposed § 106.45. The additional 

requirements in proposed § 106.46 for 

complaints of sex-based harassment 

would address the specialized needs of 

postsecondary student complainants 

and postsecondary student respondents, 

and, when applied together with the 

requirements in proposed § 106.45, 

would afford such students equitable 

grievance procedures tailored to their 

circumstances. The Department also 

proposes several revisions to the 

provisions from current § 106.45 that are 

incorporated into proposed § 106.46 to 

address concerns raised by stakeholders; 

these changes are explained in greater 

detail in the discussion of individual 

sections in proposed § 106.46. 

The Department includes the 

following additional procedural 

protections for sex-based harassment 

complaints involving at least one 

student at a postsecondary institution in 

proposed § 106.46: 

• Provisions governing student 

employees (proposed § 106.46(b)); 

• Written notice requirements, 

including written notice of the 

allegations as well as written notice of 

information related to the parties’ 

specific rights under the recipient’s 

grievance procedures (proposed 

§ 106.46(c)); 

• Additional requirements for 

complaint dismissal (proposed 

§ 106.46(d)) and investigation (proposed 

§ 106.46(e)) such as the right to an 

advisor during the investigation 

(proposed § 106.46(e)(2)), discretion to 

allow expert witnesses (proposed 

§ 106.46(e)(4)), and equitable access to 

relevant and not otherwise 

impermissible evidence (proposed 

§ 106.46(e)(6)); 

• A process for evaluating allegations 

and assessing credibility, including a 

process for evaluating and limiting 

questions during any hearing (proposed 

§ 106.46(f)); 

• The option to provide for a live 

hearing (proposed § 106.46(g)); and 

• Written notice related to the parties’ 

rights and responsibilities in a 

recipient’s informal resolution process 

under proposed § 106.44(k), if one is 

offered (proposed § 106.46(j)). 

Several of the provisions proposed in 

§ 106.46 preserve the requirement that a 

postsecondary institution provide 

specified information to the parties in 

writing. These provisions would require 


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a postsecondary institution in 

complaints of sex-based harassment 

involving a student complainant or 

student respondent to provide written 

notice of the allegations and information 

about the recipient’s grievance 

procedures (proposed § 106.46(c)); 

obtain the complainant’s voluntary 

withdrawal of a complaint in writing 

before dismissing a complaint per the 

complainant’s request and provide the 

parties written notice of a dismissal and 

the basis for the dismissal (proposed 

§ 106.46(d)); provide written notice 

explaining any delay in the timeframe to 

investigate the complaint (proposed 

§ 106.46(e)(5)); provide a written 

determination of whether sex-based 

harassment occurred (proposed 

§ 106.46(h)); and comply with the 

requirements for appeals in writing 

(proposed § 106.46(i)(3)). It is the 

Department’s current view that 

preserving the requirement that a 

postsecondary institution comply with 

these provisions in writing is 

appropriate in light of the particular 

circumstances of postsecondary 

students, and will support 

postsecondary institutions’ fulfillment 

of their obligation under Title IX to 

provide an education program or 

activity free from sex discrimination. 

The Department notes that, as set out 

in proposed § 106.45(i), the proposed 

framework for all grievance procedures 

under proposed § 106.45 would allow a 

recipient to incorporate any of the 

additional provisions required in 

grievance procedures under proposed 

§ 106.46 to grievance procedures under 

proposed § 106.45, provided they apply 

equally to the parties. 

G. Grievance Procedures for the Prompt 

and Equitable Resolution of Complaints 

of Sex Discrimination 

Section 106.45 Grievance Procedures 

for the Prompt and Equitable Resolution 

of Complaints of Sex Discrimination 

Current regulations: Section 106.45 

addresses the required grievance 

procedures for formal complaints of 

sexual harassment. The specific 

requirements of current § 106.45 are 

explained in greater detail in the 

discussion of each subsection. 

Current § 106.8(c) requires a recipient 

to 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 the 

regulations and a grievance process that 

complies with current § 106.45 for 

‘‘formal complaints’’ as defined in 

current § 106.30. The current 

regulations do not include specific 

requirements for grievance procedures 

for complaints of sex discrimination 

other than formal complaints of sexual 

harassment. 

Proposed regulations: As explained in 

the discussion of the Framework for 

Grievance Procedures for Complaints of 

Sex Discrimination (Section II.F), 

proposed § 106.45 contains specific 

requirements for grievance procedures 

that would apply to all complaints of 

sex discrimination at any recipient and 

a new proposed § 106.46 contains 

additional requirements that would 

apply only to complaints of sex-based 

harassment involving a student 

complainant or student respondent at a 

postsecondary institution. 

Proposed § 106.45(a)(1) would clarify 

that for complaints of sex 

discrimination, a recipient must have 

prompt and equitable grievance 

procedures in writing, with provisions 

that incorporate the requirements of 

proposed § 106.45. Proposed 

§ 106.45(a)(2) would set out who can 

make a complaint of sex discrimination 

requesting that the recipient initiate its 

grievance procedures. Proposed 

§ 106.45(b) would provide a number of 

basic requirements that a recipient’s 

grievance procedures for complaints of 

sex discrimination under proposed 

§ 106.45 would have to include. In 

addition to the basic requirements, 

proposed § 106.45 would also include 

the following provisions: notice of 

allegations (proposed § 106.45(c)); 

dismissal of a complaint (proposed 

§ 106.45(d)); consolidation of 

complaints (proposed § 106.45(e)); 

complaint investigation (proposed 

§ 106.45(f)); evaluating allegations and 

assessing credibility (proposed 

§ 106.45(g)); and determination of 

whether sex discrimination occurred 

(proposed § 106.45(h)). Proposed 

§ 106.45(i) would also permit a recipient 

to adopt additional provisions, as long 

as they apply equally to the parties, and 

proposed § 106.45(j) would permit a 

recipient to resolve a complaint through 

its informal resolution process. Finally, 

proposed § 106.45(k) would provide 

that, for complaints alleging sex-based 

harassment, the grievance procedures 

must describe the range of supportive 

measure available and describe (or list) 

the possible disciplinary sanctions and 

remedies. 

Additional detailed explanation of the 

requirements of proposed § 106.45 is 

provided in the discussion of each 

subsection, including proposed changes 

from current § 106.45. 

Section 106.45(a) Discrimination on 

the basis of sex 

Current regulations: Section 106.45(a) 

states that a recipient’s treatment of a 

complainant or a respondent in 

response to a formal complaint of sexual 

harassment may constitute 

discrimination on the basis of sex under 

Title IX. 

Proposed regulations: The 

Department proposes removing this 

provision from the regulations in its 

entirety. 

Reasons: After reevaluating this issue, 

the Department proposes removing 

current § 106.45(a) as redundant 

because current § 106.31(a) and (b)(4) 

already prohibit different treatment 

based on sex, making this section 

unnecessary. In addition, it is 

appropriate to remove this provision 

because formal complaints would no 

longer be required under the proposed 

regulations. 

The Department explained in the 

preamble to the 2020 amendments that 

current § 106.45(a) merely declares that 

actions toward a complainant or 

respondent may constitute sex 

discrimination. 85 FR 30238–39. The 

Department also stated that this 

provision emphasizes that a recipient 

must not treat a party differently on the 

basis of sex and that the Department 

disagreed that the provision creates a 

new protected class of respondents 

because it provides protections from sex 

discrimination to all persons. Id. 

After considering the issue and 

reweighing the facts and circumstances, 

the Department’s tentative view is that 

§ 106.31(a), both in its current form and 

with the revisions included in the 

proposed regulations, and current 

§ 106.31(b)(4) are adequate to address 

the concerns that current § 106.45(a) 

was drafted to address. In particular, 

current § 106.31(a) and proposed 

§ 106.31(a)(1) prohibit sex 

‘‘discrimination under any academic, 

extracurricular, research, occupational 

training, or other education program or 

activity operated by a recipient,’’ 34 

CFR 106.31(a), and § 106.31(b)(4) 

prohibits a recipient from ‘‘subject[ing] 

any person to separate or different rules 

of behavior, sanctions, or other 

treatment’’ on the basis of sex. Id. at 

106.31(b)(4). The Department interprets 

these provisions to require a recipient to 

carry out its grievance procedures to 

address complaints of sex 

discrimination, including sex-based 

harassment, in a nondiscriminatory 

manner and to prohibit a recipient from 

treating any party differently based on 

sex. The Department maintains its view 

that discrimination based on sex against 

a party in the context of a grievance 

procedure would violate Title IX. 


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Section 106.45(a)(1) General 

Current regulations: Section 106.45(b) 

states that for the purpose of addressing 

formal complaints of sexual harassment, 

a recipient’s grievance process must 

comply with the requirements of this 

section. The current regulations do not 

contain a provision stating whether a 

recipient should be considered a 

respondent when the complaint alleges 

that the recipient’s policy or practice 

discriminates based on sex. 

Proposed regulations: Proposed 

§ 106.45(a)(1) would clarify that for 

purposes of addressing complaints of 

sex discrimination, a recipient’s prompt 

and equitable grievance procedures 

must be in writing and must include 

provisions that incorporate the 

requirements of proposed § 106.45. It 

would further clarify that the 

requirements in proposed § 106.45 

related to a respondent apply only to 

sex discrimination complaints alleging 

that a person violated the recipient’s 

prohibition on sex discrimination and 

explain that when a sex discrimination 

complaint alleges that a recipient’s 

policy or practice discriminates based 

on sex, the recipient is not considered 

a respondent. For additional 

requirements regarding the application 

of this provision in grievance 

procedures for sex-based harassment 

complaints involving postsecondary 

students, see the discussion of proposed 

§ 106.46(a). 

Reasons: Proposed § 106.45(a)(1) 

would maintain the general principle 

from current § 106.45(b) that a recipient 

must comply with the requirements in 

the grievance procedures for complaints 

but would broaden the provision to 

apply to complaints of all forms of sex 

discrimination, not just sexual 

harassment, to conform with other 

changes in the proposed regulations. 

The Department proposes removing 

references to formal complaints of 

sexual harassment and applying 

proposed § 106.45(a)(1) to all 

complaints of sex discrimination to 

account for other proposed changes to 

the regulations. 

The Department recognizes that not 

all complaints of sex discrimination 

involve active participation by a 

complainant and respondent in the 

grievance procedures and therefore, 

some provisions in proposed § 106.45 

would not be applicable for all 

complaints of sex discrimination. This 

is true for complaints alleging that the 

recipient’s own policy or procedures 

discriminate based on sex (e.g., when a 

complaint alleges that the recipient’s 

policies discriminate on the basis of sex 

in the provision of extracurricular 

activities). For example, the requirement 

to follow grievance procedures before 

imposing disciplinary sanctions on a 

respondent (proposed § 106.45(b)(11)) 

would not apply when the alleged sex 

discrimination involves a policy or 

practice of the recipient but does not 

allege sex discrimination by an 

individual student, employee, or thirdparty respondent. Similarly, a recipient 

would not be afforded the right to 

appeal the dismissal of a sex 

discrimination complaint against it 

(proposed § 106.45(d)(3)), nor would an 

informal resolution process be available 

in sex discrimination complaints that do 

not involve a student, employee, or 

third-party respondent (proposed 

§ 106.45(j)). The Department’s current 

view is that because the provisions in 

proposed § 106.45 related to a 

respondent would not apply to all 

complaints of sex discrimination, it is 

necessary to include language clarifying 

this in proposed § 106.45(a)(1). 

Clarifying that a recipient is not a 

respondent is also consistent with how 

the Department proposes defining a 

‘‘respondent’’ in proposed § 106.2 as a 

person alleged to have violated the 

recipient’s prohibition on sex 

discrimination. 

Section 106.45(a)(2) Complaint 

Current regulations: The current 

regulations do not contain a related 

provision but state in § 106.44(b) that all 

recipients must follow a grievance 

process that complies with § 106.45 in 

response to a formal complaint of sexual 

harassment. The current regulations 

define a ‘‘formal complaint’’ in 

§ 106.30(a) as a document filed by a 

complainant or signed by the Title IX 

Coordinator alleging sexual harassment 

against a respondent and requesting that 

the recipient investigate the allegation 

of sexual harassment. The current 

regulations also state that at the time of 

filing a formal complaint, a complainant 

must be participating in or attempting to 

participate in the education program or 

activity of the recipient with which the 

formal complaint is filed. In addition, 

the current regulations in § 106.8(c) 

require a recipient to adopt and publish 

grievance procedures that provide for 

the prompt and equitable resolution of 

student and employee complaints of sex 

discrimination. 

Proposed regulations: The 

Department proposes adding 

§ 106.45(a)(2), which would state that 

the following persons have a right to 

make a complaint of sex discrimination, 

including complaints of sex-based 

harassment, requesting that the 

recipient initiate its grievance 

procedures: (i) a complainant; (ii) a 

person who has a right to make a 

complaint on behalf of a complainant 

under § 106.6(g); or (iii) the Title IX 

Coordinator. In addition, any student or 

employee, or any third party 

participating or attempting to 

participate in the recipient’s education 

program or activity when the alleged sex 

discrimination occurred would have a 

right to make a complaint of sex 

discrimination other than sex-based 

harassment. 

Reasons: Any person seeking to 

request that a recipient initiate its 

grievance procedures under proposed 

§ 106.45, and if applicable proposed 

§ 106.46, must make a complaint of sex 

discrimination, including sex-based 

harassment. In light of the unique 

circumstances of sex-based harassment, 

the Department proposes different 

requirements for who may make a 

complaint of sex-based harassment and 

who may make a complaint of sex 

discrimination other than sex-based 

harassment. 

Proposed § 106.45(a)(2)(i) through (iii) 

would allow a ‘‘complainant,’’ defined 

in proposed § 106.2 as a person alleged 

to have been subjected to sex 

discrimination; anyone who has a right 

to make a complaint on a complainant’s 

behalf under proposed § 106.6(g); or the 

Title IX Coordinator to make a 

complaint of sex discrimination, 

including sex-based harassment. Under 

the proposed definition of 

‘‘complainant’’ in § 106.2, a third-party 

complainant who wants to make a 

complaint of sex discrimination, 

including sex-based harassment, must 

be participating or attempting to 

participate in the recipient’s education 

program or activity when the alleged sex 

discrimination occurred. For example, if 

a student enrolled in University A is 

taking a class at University B through an 

agreement between the universities and 

is subjected to sex-based harassment by 

a student enrolled in University B while 

attending class at University B, the 

student would be permitted to make a 

complaint of sex-based harassment 

through University B’s grievance 

procedures because the student is a 

third party participating in University 

B’s education program or activity when 

the sex-based harassment occurred. Or, 

for example, if a student who plays for 

School A’s basketball team is subjected 

to sex-based harassment by a student 

enrolled in School B while at School B 

to play in a basketball game, the student 

would be permitted to make a complaint 

of sex-based harassment through School 

B’s grievance procedures because the 

student is a third party participating in 

School B’s education program or 

activity when the sex-based harassment 


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occurred. The Department notes that 

Student A could also choose to make a 

complaint through School A’s grievance 

procedures because the basketball team 

is part of School A’s education program 

or activity, but School A would not 

necessarily have authority to require the 

respondent student from School B to 

participate in School A’s grievance 

procedures or to impose disciplinary 

sanctions on the respondent from 

School B. 

Proposed § 106.45(a)(2)(i) through (iii) 

would generally be consistent with the 

requirements under the current 

regulations regarding who can file a 

formal complaint of sexual harassment, 

with some minor revisions consistent 

with other proposed changes to the 

regulations. For additional information 

regarding these proposed changes see 

the discussion of the proposed 

definitions of ‘‘complaint’’ and 

‘‘complainant’’ (§ 106.2). 

Proposed § 106.45(a)(2)(i) through (iii) 

would allow a complainant, a person 

who has a right to make a complaint on 

behalf of a complainant under proposed 

§ 106.6(g), and the Title IX Coordinator 

to make a complaint of sex-based 

harassment. Under proposed 

§ 106.45(a)(2)(iv), however, the 

Department would limit the ability of 

non-complainants, including other 

students and employees, and third 

parties who are participating or 

attempting to participate in the 

recipient’s education program or 

activity to make complaints of sex-based 

harassment, while allowing them to 

make complaints of sex discrimination 

other than sex-based harassment. The 

Department proposes this limitation 

because it recognizes that sex-based 

harassment complaints may involve 

allegations about deeply personal 

aspects of the complainant’s life, and 

that a complainant should therefore 

have the opportunity to choose whether 

or not to request that the recipient 

initiate its grievance procedures, except 

in the limited circumstances in which a 

Title IX Coordinator would be obligated 

to initiate the recipient’s grievance 

procedures if the complainant chose not 

to, as explained in the discussion of 

proposed § 106.44(f)(5). During the June 

2021 Title IX Public Hearing, 

commenters requested that the 

Department provide flexibility to 

complainants to determine whether to 

participate in the recipient’s grievance 

procedures given these considerations. 

The Department’s proposed regulations 

recognize the importance of 

complainant autonomy and also the 

requirement under Title IX that a 

recipient operate an education program 

or activity free from sex discrimination, 

including sex-based harassment. 

Therefore, although the Department’s 

proposal would limit who can make a 

complaint of sex-based harassment to 

the individuals identified in proposed 

§ 106.45(a)(2)(i) through (iii), other 

individuals, including witnesses to sexbased harassment, may inform the Title 

IX Coordinator of any potential sexbased harassment. Upon receiving 

notification about conduct that may 

constitute sex-based harassment from 

someone other than the individuals 

identified in proposed § 106.45(a)(2)(i) 

through (iii), the recipient must require 

its Title IX Coordinator to take steps 

consistent with proposed § 106.44(f). 

The Department recognizes that in 

some instances, particularly in 

situations in which systemic sex 

discrimination is being alleged, the 

person who may have information 

regarding the discrimination may not 

themselves be subjected to the sex 

discrimination at issue. For example, 

the boys’ soccer coach may have 

information about disparities between 

boys’ and girls’ athletic facilities, 

including locker rooms, that the girls’ 

soccer coach may not be able to access. 

Allowing the boys’ soccer coach to make 

a complaint of sex discrimination brings 

this concern to the recipient’s attention 

and serves the recipient’s and 

Department’s interest in ensuring a 

nondiscriminatory educational 

environment based on sex. The 

Department’s proposed approach is 

informed by its interest in allowing 

students and employees to make a 

complaint about sex discrimination in 

the education program or activity to the 

recipient and in permitting the recipient 

to focus its resources on complaints 

made by persons who have a 

relationship with the recipient. The 

Department thus proposes to allow only 

those third parties who are participating 

or attempting to participate in a 

recipient’s education program or 

activity at the time of the alleged 

discrimination to make a complaint. 

This proposed limitation on third 

parties is generally consistent with the 

Department’s reasoning in the preamble 

to the 2020 amendments. 85 FR 30198 

(explaining that the requirement that the 

complainant must be participating or 

attempting to participate in the 

recipient’s education program or 

activity ‘‘prevents recipients from being 

legally obligated to investigate 

allegations made by complainants who 

have no relationship with the 

recipient’’). 

Section 106.45(b) Basic Requirements 

for Grievance Procedures 

Current regulations: Section 106.45(b) 

requires all recipients to use a grievance 

process for formal complaints of sexual 

harassment that complies with all of the 

requirements of § 106.45. It also states 

that any provisions, rules, or practices 

other than those required by this section 

that a recipient adopts as part of its 

grievance process for handling ‘‘formal 

complaints’’ of ‘‘sexual harassment’’ as 

defined in current § 106.30 must apply 

equally to both parties. 

Proposed regulations: Proposed 

§ 106.45(b) contains the introductory 

language to the basic requirements for 

the grievance procedures. The seven 

provisions in proposed § 106.45(b) 

would include basic requirements that 

are overarching and apply at all or 

multiple stages of a recipient’s grievance 

procedures. As explained in the 

individual discussions of proposed 

§ 106.45(b)(1) through (7), some of these 

basic requirements are already included, 

in whole or in part, in current § 106.45. 

The Department also proposes moving 

the language in current § 106.45(b) 

regarding additional provisions of a 

recipient’s grievance procedures to 

proposed § 106.45(i). 

Reasons: The Department’s proposed 

revisions are necessary to be consistent 

with other proposed changes to the 

regulations. 

Section 106.45(b)(1) Treat 

Complainants and Respondents 

Equitably 

Current regulations: Section 

106.45(b)(1)(i) requires a recipient to 

treat complainants and respondents 

equitably by providing remedies to a 

complainant when a determination of 

responsibility for sexual harassment has 

been made against the respondent, and 

by following a grievance process that 

complies with this section before the 

imposition of any disciplinary sanctions 

or other actions that are not ‘‘supportive 

measures’’ as defined in current 

§ 106.30, against a respondent. 

Remedies must be designed to restore or 

preserve a complainant’s or other 

person’s access to the recipient’s 

education program or activity. Remedies 

may include the same individualized 

services described in current § 106.30 as 

supportive measures; however, 

remedies need not be non-disciplinary 

or non-punitive and need not avoid 

burdening the respondent. 

Proposed regulations: The 

Department proposes maintaining the 

requirement in the current regulations 

to treat complainants and respondents 

equitably but moving it to proposed 


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§ 106.45(b)(1) and applying it to all 

complaints of sex discrimination, not 

just formal complaints of sexual 

harassment. The Department proposes 

moving the language regarding remedies 

for the complainant to proposed 

§ 106.45(h)(3) and the language 

regarding following grievance 

procedures that comply with this 

section before the imposition of any 

disciplinary sanctions against a 

respondent to proposed § 106.45(h)(4). 

In addition, the Department proposes 

moving the language describing what 

remedies may include to the definition 

of ‘‘remedies’’ in § 106.2. 

Reasons: The proposed revision to 

require a recipient to treat complainants 

and respondents equitably in its 

grievance procedures for complaints of 

sex discrimination as opposed to 

limiting this requirement only to 

grievance procedures for complaints of 

sexual harassment is necessary to 

effectuate Title IX and make the 

regulatory text consistent with other 

changes proposed by the Department 

regarding a recipient’s grievance 

procedures as explained in the 

discussion of the Framework for 

Grievance Procedures for Complaints of 

Sex Discrimination (Section II.F). The 

proposed addition of a definition of 

‘‘remedies’’ in proposed § 106.2 would 

render unnecessary certain portions of 

the explanation of remedies in current 

§ 106.45(b)(1)(i), including the examples 

of remedies in that provision. 

Although the Department continues to 

believe that a recipient must provide 

remedies to a complainant and follow 

grievance procedures that comply with 

the requirements in proposed § 106.45, 

and if applicable proposed § 106.46, 

before imposing disciplinary sanctions 

on a respondent, the Department 

proposes moving these requirements to 

different provisions rather than linking 

them to the requirement to treat 

complainants and respondents 

equitably. The purpose of this proposed 

change is to clarify that the requirement 

to treat complainants and respondents 

equitably is not limited to these two 

requirements. One factor for a recipient 

to consider in ensuring complainants 

and respondents are treated equitably is 

whether the parties, witnesses, and 

other participants can engage fully in 

the grievance procedures. In particular, 

to ensure equal opportunity for persons 

with disabilities, it may be necessary for 

a recipient to provide auxiliary aids and 

services for effective communication 

and make reasonable modifications to 

policies, practices, and procedures. In 

addition, it may be necessary for a 

recipient to provide language assistance 

services, such as translations or 

interpretation, for persons with limited 

English proficiency. 

Section 106.45(b)(2) Conflicts of 

Interest/Bias 

Current regulations: Section 

106.45(b)(1)(iii) prohibits a Title IX 

Coordinator, investigator, 

decisionmaker, or anyone who 

facilitates an informal resolution 

process from having a conflict of 

interest or bias for or against 

complainants or respondents generally 

or an individual complainant or 

respondent. Section 106.45(b)(1)(iii) 

also outlines several specific training 

requirements for persons filling those 

roles. Current § 106.45(b)(7)(i) states that 

the decisionmaker cannot be the same 

person as the Title IX Coordinator or the 

investigator(s). 

Proposed regulations: Consistent with 

the current regulations, proposed 

§ 106.45(b)(2) would require that any 

person designated as a Title IX 

Coordinator, investigator, or 

decisionmaker not have a conflict of 

interest or bias for or against 

complainants or respondents generally 

or an individual complainant or 

respondent. As further explained in the 

discussion of proposed § 106.44(k), the 

Department proposes moving the 

requirement that the facilitator of an 

informal resolution process not have a 

conflict of interest or bias from current 

§ 106.45(b)(1)(iii) to proposed 

§ 106.44(k), as part of the section of the 

proposed regulations that describes a 

recipient’s obligations related to 

informal resolution. 

As further explained in the discussion 

of proposed § 106.8(d), the Department 

also proposes revising and moving 

training requirements from current 

§ 106.45(b)(1)(iii) to a consolidated 

training provision at proposed 

§ 106.8(d). The Department also 

proposes eliminating the categorical 

prohibition on the same person serving 

as both decisionmaker and Title IX 

Coordinator or investigator. 

Reasons: To ensure that the grievance 

procedures are equitable, a recipient 

must ensure that the procedures are 

administered impartially. The 

Department therefore proposes 

retaining—in proposed § 106.45(b)(2)— 

the requirement that any person 

designated as a Title IX Coordinator, 

investigator, or decisionmaker must not 

have a conflict of interest or bias 

regarding complainants or respondents 

generally or regarding a particular 

complainant or respondent. 

The Department proposes moving the 

requirement that the facilitator of the 

informal resolution process be free from 

bias and conflict of interest from current 

§ 106.45(b)(1)(iii) to proposed 

§ 106.44(k). The Department proposes 

this technical change to align with the 

relocation of the informal resolution 

process from § 106.45(b)(9) in the 

current regulations to § 106.44(k) in the 

proposed regulations. 

The proposed regulations would 

continue to require the Title IX 

Coordinator, investigators, and 

decisionmakers to receive training; 

however, the Department proposes 

consolidating those training 

requirements in proposed § 106.8(d) 

rather than in the section on grievance 

procedures as the current regulations 

do. 

Proposed § 106.45(b)(2) would also 

eliminate the prohibition on the 

decisionmaker being the same person as 

the Title IX Coordinator or investigator. 

Before the 2020 amendments, some 

recipients implemented a singleinvestigator model in which one person 

or one team both investigated a 

complaint and made findings of fact as 

to whether a respondent violated the 

recipient’s prohibition on sexual 

harassment. This model, then in use by 

a variety of recipients across the 

country, was specifically prohibited 

under the 2020 amendments. In 2020, 

the Department said it was concerned 

that combining the investigative and 

adjudicative functions in a single entity 

raised an unnecessary risk of bias that 

unjustly impacts one or both parties in 

Title IX grievance procedures. 85 FR 

30367–69. Specifically, the Department 

stated that placing these varied 

responsibilities in the hands of a single 

individual or team risks those involved 

improperly relying on information 

gleaned during one role to affect 

decisions made while performing a 

different role, and that separating the 

roles of investigation from adjudication 

protects the parties by making it more 

likely that the fact-based determination 

regarding responsibility is based on an 

objective evaluation of relevant 

evidence. Id. at 30369–70. The 

Department stated any concern about 

decisionmakers not having the same 

level of training or expertise as 

investigators would be addressed by the 

regulation’s ‘‘robust training and 

impartiality requirements for all 

individuals serving as Title IX 

Coordinators, investigators, or decisionmakers,’’ that it would ‘‘effectively 

promote the reliability of fact-finding 

and the overall fairness and accuracy of 

the grievance process.’’ Id. at 30368 

Through listening sessions and the 

June 2021 Title IX Public Hearing, OCR 

learned that the requirement that a 

recipient have separate staff members to 

handle investigation and adjudication is 


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burdensome for some schools in a way 

that undermined these schools’ ability 

to ensure that their education programs 

or activities are free from sex 

discrimination under Title IX, 

particularly those that are underresourced or that do not have a large 

number of staff. Stakeholders also 

explained that having an additional staff 

member who is unfamiliar with the 

allegations and evidence serve as 

decisionmaker after the conclusion of an 

investigation results in a prolonged Title 

IX process, negatively impacting the 

students who are participating in that 

process. Conversely, these stakeholders 

argued that using the single-investigator 

model permitted recipients to 

investigate and resolve complaints 

expeditiously, drawing from a small 

pool of trained experts, and would 

allow a recipient to more easily and 

effectively deliver the highest level of 

expertise available for assessing 

allegations and evidence. In light of 

these comments, the Department is 

concerned that the prohibition on the 

single-investigator model sometimes 

worked to the detriment of the quality 

of recipients’ grievance procedures and 

their decisionmaking about the 

allegations and relevant facts. 

In addition, OCR learned through the 

June 2021 Title IX Public Hearing that 

prior to the 2020 amendments, 

employing a single investigator from 

outside the recipient’s community, 

under the guidance of the recipient’s 

Title IX Coordinator, enabled some 

postsecondary institutions to have a 

highly trained expert who could 

conduct an equitable investigative 

process without perceived institutional 

bias. Some recipients also expressed 

their belief that, through this model, 

they saw more students seeking 

institutional support and resolution of 

complaints. 

For small or under-resourced 

recipients, OCR also heard that 

permitting a single-investigator model 

would help ensure prompt and 

equitable grievance procedures while 

reducing the number of personnel a 

recipient would need for each 

investigation and resolution. If a 

recipient has a small school or campus 

community, a requirement that 

increases the number of employees 

involved in the grievance procedures 

also increases the likelihood of the 

parties having to interact with those 

employees in the regular course of their 

participation in the recipient’s 

education program or activity. OCR 

heard about students who had changed 

majors or avoided courses, clubs and 

organizations, and athletic opportunities 

to avoid interacting with employees in 

those areas who had also administered 

their grievance procedures related to 

sexual harassment allegations. 

Stakeholders who provided these 

comments explained that some students 

had found the procedures painful, and 

some had concerns about those 

employees knowing traumatic 

information about them. 

After reweighing the facts and 

circumstances, including but not 

limited to the feedback received through 

listening sessions and the June 2021 

Title IX Public Hearing, it is the 

Department’s current view that the 

single-investigator model, when 

implemented in conjunction with the 

other proposed measures designed to 

ensure equitable treatment of the parties 

as required throughout proposed 

§ 106.45, and if applicable proposed 

§ 106.46, can offer recipients an 

effective option for resolving complaints 

of sex discrimination in a way that 

ensures fair treatment of all parties and 

enables compliance with Title IX. In 

conducting an investigation and 

reaching a determination, the recipient’s 

responsibility is to gather and review 

evidence with neutrality and without 

bias or favor toward any party. That is, 

the recipient is not in the role of 

prosecutor seeking to prove a violation 

of its policy. Rather, the recipient’s role 

is to ensure that its education program 

or activity is free of unlawful sex 

discrimination, a role that does not 

create an inherent bias or conflict of 

interest in favor of one party or another. 

The Department’s earlier stated 

concerns about the reliability of factfinding and overall fairness and 

accuracy of the grievance procedures 

will still be effectively addressed by the 

other proposed requirements which 

clarify a recipient’s obligations and 

make it easier to achieve those 

obligations, and these protections would 

now apply to all complaints of sex 

discrimination, not just those that allege 

sex-based harassment. Among other 

obligations, a recipient must: treat the 

complainant and respondent equitably 

(proposed §§ 106.44(f)(1), 106.45(b)(1)); 

provide robust training and anti-bias 

requirements (proposed §§ 106.8(d), 

106.45(b)(2)); objectively evaluate all 

relevant evidence (proposed 

§ 106.45(b)(6)); review all evidence 

gathered to determine which evidence is 

relevant and what is impermissible 

(proposed § 106.45(f)(3)); provide each 

party with a description of evidence that 

is relevant and not otherwise 

impermissible (proposed § 106.45(f)(4)); 

provide the right to appeal a complaint 

dismissal (proposed § 106.45(d)); and, if 

additional provisions are adopted as 

part of its grievance procedures, apply 

those provisions equally to the parties 

(proposed § 106.45(i)). These provisions 

would reinforce each other in protecting 

the overall fairness and accuracy of the 

grievance procedures. 

In conducting an investigation and 

reaching a determination, the recipient’s 

responsibility is to gather and review 

evidence with neutrality and without 

bias or favor toward any party. That is, 

the recipient is not in the role of 

prosecutor seeking to prove a violation 

of its policy. Rather, the recipient’s role 

is to ensure that its education program 

or activity is free of unlawful sex 

discrimination, a role that does not 

create an inherent bias or conflict of 

interest in favor of one party or another. 

The Department is aware that, prior to 

August 2020, some recipients used a 

single investigator or team of 

investigators to investigate complaints 

of sex-based harassment and make 

determinations whether sex-based 

harassment occurred. The Department 

invites comments on recipients’ 

experiences using that model to comply 

with Title IX and the steps taken, if any, 

to ensure adequate, reliable, and 

impartial investigation and resolution of 

complaints, including equitable 

treatment of the parties and reliable 

grievance procedures that are free from 

bias. The Department also invites 

comments on these issues from persons 

who were parties or served as an advisor 

to a party to a complaint that was 

investigated and resolved by a recipient 

using a single investigator model. 

Section 106.45(b)(3) Presumption That 

the Respondent Is Not Responsible for 

the Alleged Conduct Until a 

Determination Is Made at the 

Conclusion of the Grievance Procedures 

Current regulations: Section 

106.45(b)(1)(iv) requires a recipient to 

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 for 

formal complaints of sexual harassment. 

Proposed regulations: The 

Department proposes maintaining this 

provision with minor revisions, 

including relocating the provision to 

proposed § 106.45(b)(3) and applying 

the provision to complaints of sex 

discrimination, not just sexual 

harassment. 

Reasons: The proposed revisions are 

necessary to make the regulatory text 

consistent with the Department’s 

proposed changes to apply the grievance 

procedures described in proposed 

§ 106.45 to all forms of sex 

discrimination, including sex-based 


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harassment, as explained in the 

discussion of the Overall Considerations 

and Framework (Section II.F.2.a). The 

Department also notes that proposed 

§ 106.45(b)(3) would not apply to a sex 

discrimination complaint that does not 

allege that a person violated the 

recipient’s prohibition on sex 

discrimination because in those 

complaints there would not be a 

respondent. Nevertheless, in such cases 

the Department would not presume that 

a recipient accused of sex 

discrimination through its policy or 

practice operated its program or activity 

in a discriminatory manner until a 

determination whether sex 

discrimination occurred is made at the 

conclusion of the recipient’s grievance 

procedures for complaints of sex 

discrimination. 

Section 106.45(b)(4) Timeframes 

Current regulations: Section 

§ 106.45(b)(1)(v) states that, with respect 

to a recipient’s grievance process for 

formal complaints of sexual harassment, 

the recipient must include reasonably 

prompt timeframes for conclusion of the 

grievance process, including reasonably 

prompt time frames for filing and 

resolving appeals and informal 

resolution processes if the recipient 

offers informal resolution processes, and 

a process that allows for the temporary 

delay of the grievance process or the 

limited extension of 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 a 

party, a party’s advisor, or a witness; 

concurrent law enforcement activity; or 

the need for language assistance or 

accommodation of disabilities. 

Proposed regulations: The 

Department proposes revising this 

provision to state that a recipient must 

establish reasonably prompt timeframes 

for the major stages of the grievance 

procedures, including a process that 

allows for the reasonable extension of 

timeframes on a case-by-case basis for 

good cause with notice to the parties 

that includes the reason for the delay. 

The Department also proposes 

providing examples of types of major 

stages and using ‘‘parties’’ instead of 

‘‘complainant’’ and ‘‘respondent.’’ The 

Department proposes removing the 

examples of good cause. Finally, the 

Department proposes moving the 

revised language of this provision to 

proposed § 106.45(b)(4). For additional 

requirements regarding the application 

of this provision in grievance 

procedures for sex-based harassment 

complaints involving postsecondary 

students, see the discussion of proposed 

§ 106.46(e)(5). 

Reasons: In the preamble to the 2020 

amendments, the Department explained 

that recipients should retain flexibility 

to designate time frames that are 

reasonably prompt, and stated that what 

is ‘‘reasonable’’ is a ‘‘decision made in 

the context of a recipient’s purpose of 

providing education programs or 

activities free from sex discrimination, 

thus requiring recipients to designate 

time frames taking into account the 

importance to students of resolving 

grievance processes so that students 

may focus their attention on 

participating in education programs or 

activities,’’ 85 FR 30272. The 

Department added that a recipient must 

balance this consideration ‘‘with the 

need for recipients to conduct grievance 

processes fairly in a manner that reaches 

reliable outcomes, meeting the 

requirements of § 106.45, in deciding 

what time frames to include as 

‘reasonably prompt’ in a recipient’s 

grievance process for formal complaints 

of sexual harassment under Title IX.’’ 

Id. Although the Department supports 

the rationale of current § 106.45(b)(1)(v), 

it proposes making minor revisions to 

the provision to simplify the regulatory 

language and better align it with other 

sections of the Title IX regulations and 

the Department’s Clery Act regulations. 

In particular, the Clery Act regulations 

at 34 CFR 668.46(k)(3)(i)(A) require a 

proceeding that both is ‘‘[c]ompleted 

within reasonably prompt timeframes’’ 

designated by the postsecondary 

institution’s policy and includes ‘‘a 

process that allows for the extension of 

timeframes for good cause with written 

notice to the accuser and the accused of 

the delay and the reason for the delay.’’ 

Proposed § 106.45(b)(4) uses similar 

language. Allowing a recipient to use 

the same standard for different types of 

Title IX grievance procedures, and a 

standard that is largely similar to that 

required for postsecondary institutions 

under the Clery Act, would reduce 

administrative burden for all recipients 

and, in particular, postsecondary 

institutions. 

To increase clarity, proposed 

§ 106.45(b)(4) would require a recipient 

to establish timeframes for the major 

stages of the grievance procedures rather 

than only for the conclusion of the 

grievance process as in the current 

provision. Requiring a recipient to 

establish timeframes for the major stages 

of its grievance procedures would help 

parties understand the approximate 

length of each stage of the recipient’s 

process, while the current provision 

requires only that a recipient alert 

parties to a timeframe for the 

completion of the overall process. Also, 

to assist recipients in understanding 

what a major stage is, the Department 

proposes providing examples in 

§ 106.45(b)(4) such as evaluation (i.e., 

the recipient’s determination of whether 

to dismiss or investigate a complaint of 

sex discrimination), investigation, 

determination, and appeal, if any. 

The Department also proposes 

deleting the examples of good cause for 

extending the recipient’s timeframe and 

adding a requirement to consider 

extensions on a case-by-case basis. After 

reviewing these examples, the 

Department is concerned that their 

inclusion in the regulations may have 

inadvertently suggested to recipients 

that extensions were mandatory in each 

of those situations—regardless of 

whether they were requested by the 

parties or whether extensions were 

warranted in the particular situation— 

which may have slowed down overall 

investigation and resolution of 

complaints. The Department continues 

to believe that good cause may include, 

for example, considerations such as the 

absence of a party, a party’s advisor, or 

a witness, or a variety of other 

situations. In proposed § 106.45(b)(4), 

the Department would remove the 

examples from the regulatory text to 

help clarify that the need to extend 

timeframes must be considered on a 

case-by-case basis. Recipients may be 

able to address many of these 

circumstances in a way that can avoid 

the need for an extension. For example, 

a witness who is unavailable in person 

may nevertheless be available through 

videoconference. Likewise, a recipient 

may require a party to choose an advisor 

who has appropriate availability, or to 

select another advisor with sufficient 

availability if their current advisor’s 

availability is very limited, to enable the 

grievance procedures to proceed 

promptly and equitably. With respect to 

the need for language assistance or 

reasonable modifications, the 

Department anticipates that a recipient 

should ordinarily be expected to 

address these needs within its 

established timeframes. For example, a 

recipient should be prepared to provide 

a sign language or foreign language 

interpreter from the outset if needed for 

a party or witness to participate in the 

grievance procedures. However, when 

the reasonable modification a party 

requests is itself an extension of time 

(for example, additional time for an 

individual with ADHD who requires 

additional time to review or respond to 

allegations), it may be appropriate for 

the recipient to extend time on this 

basis. In any event, a recipient should 


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bear in mind that although proposed 

§ 106.45(b)(4) would provide flexibility 

to accommodate the need for 

extensions, the recipient remains 

obligated to ensure that its overall 

grievance procedures are prompt and 

equitable to comply with proposed 

§ 106.45, and if applicable proposed 

§ 106.46. 

In addition, the Department proposes 

revising § 106.45(b)(4) to state that a 

recipient must provide notice of an 

extension to the parties rather than to 

‘‘the complainant and the respondent.’’ 

This change would make clear that in 

cases in which there are multiple 

complainants or respondents (for 

example, if several complaints are 

consolidated), a recipient must provide 

notice of extensions to all parties. The 

Department also proposes changing the 

term ‘‘grievance process’’ to the term 

‘‘grievance procedures’’ to be consistent 

with language used throughout 

proposed §§ 106.44, 106.45, and 106.46, 

including the heading of this subpart. 

Section 106.45(b)(5) Reasonable 

Limitations on Sharing of Information 

Current regulations: Section 

106.45(b)(5)(iii) prohibits a recipient 

from restricting the ability of either 

party to discuss the allegations under 

investigation or to gather and present 

relevant evidence. 

Proposed regulations: Proposed 

§ 106.45(b)(5) states that a recipient 

must take reasonable steps to protect the 

privacy of the parties and witnesses 

during the pendency of a recipient’s 

grievance procedures. These steps to 

protect privacy must not restrict the 

parties’ ability to obtain and present 

evidence, including by speaking to 

witnesses, subject to proposed § 106.71; 

to consult with a family member, 

confidential resource, or advisor; to 

prepare for a hearing, if one is offered; 

or otherwise to defend their interests. 

For additional requirements regarding 

the application of this provision in 

grievance procedures for sex-based 

harassment complaints involving 

postsecondary students, see the 

discussion of proposed 

§ 106.46(e)(6)(iii). 

Reasons: The current regulations, at 

§ 106.45(b)(5)(iii), state that a recipient 

must not restrict either party’s ability to 

discuss the allegations under 

investigation or to gather and present 

relevant evidence. The Department 

proposes moving this requirement to 

proposed § 106.45(b)(5) and modifying 

this provision in several ways. Under 

proposed § 106.45(b)(5), the Department 

would require a recipient to take 

reasonable steps—within specified 

limits—to protect the privacy of the 

parties and witnesses while the 

grievance procedures are ongoing. 

First, the Department proposes 

revising the current regulations that 

prohibit a recipient from restricting in 

any way the parties’ ability to discuss 

the allegations under investigation. 

Proposed § 106.45(b)(5) would instead 

require a recipient to take reasonable 

steps to protect privacy; however, 

proposed § 106.45(b)(5) would also 

continue to protect the parties’ ability to 

discuss the allegations by imposing 

limitations on the types of reasonable 

steps that a recipient would be able to 

take to protect privacy. Under proposed 

§ 106.45(b)(5), a recipient would not be 

permitted to restrict the parties’ ability 

to obtain and present evidence, 

including by speaking to witnesses. 

Likewise, a recipient would not be 

permitted to restrict the parties’ ability 

to speak with a family member, 

confidential resource, or advisor. A 

recipient would also not be permitted to 

take steps to protect privacy that would 

restrict the parties’ ability to prepare for 

a hearing (if one is offered) or to 

otherwise defend their interests (e.g., 

restricting the parties’ ability to speak 

with providers of disability-related 

services or language access services). 

In the preamble to the 2020 

amendments, the Department concluded 

that a recipient should not restrict the 

right of its students and employees to 

discuss the allegations under 

investigation. In reaching this 

conclusion, the Department highlighted 

the importance of allowing parties ‘‘to 

seek advice and support outside the 

recipient’s provision of supportive 

measures,’’ and the ‘‘ability to discuss 

the allegation under investigation where 

the party intends to, for example, 

criticize the recipient’s handling of the 

investigation or approach to Title IX 

generally.’’ 85 FR 30295. The 

Department determined that a fair 

grievance process required that ‘‘both 

parties have every opportunity to fully, 

meaningfully participate by locating 

evidence that furthers the party’s 

interests and by confiding in others to 

receive emotional support and for other 

personally expressive purposes,’’ and 

that such benefits outweighed the risks 

of harm identified by stakeholders. Id. at 

30296. 

During the June 2021 Title IX Public 

Hearing, stakeholders expressed 

concerns regarding the Department’s 

prohibition on any restrictions on the 

parties’ ability to discuss the allegations 

and to gather relevant evidence, 

emphasizing that parties need 

protection from slander and social 

retaliation, that some students use social 

media to harass and shame the parties, 

and that the potential consequences of 

harassment based on students’ 

participation in the recipient’s Title IX 

process and related allegations are 

serious, including attempted suicide. 

One commenter expressed during the 

June 2021 Title IX Public Hearing that 

schools should not prohibit parties from 

discussing their cases with others since 

such discussions may be necessary for 

gathering evidence, but schools should 

stop that information from being used to 

retaliate. A group of stakeholders urged 

the Department through a listening 

session to permit reasonable limitations 

on the sharing of information to protect 

students and prevent the spread of 

sensitive information that would 

undermine fair proceedings, as long as 

these limitations do not prejudice the 

ability of the parties to collect evidence, 

speak to witnesses, consult with an 

advisor, or prepare for a hearing. These 

stakeholders asked the Department to 

make clear that it will not sanction 

schools that take reasonable steps to 

protect privacy or require parties to 

keep information confidential. 

Upon considering the issue and 

reweighing the facts and circumstances, 

including views expressed by a wide 

array of stakeholders in listening 

sessions and in connection with the 

June 2021 Title IX Public Hearing, the 

Department proposes modifying the 

current regulations to better address 

these concerns. Through proposed 

§ 106.45(b)(5), the Department would 

take account of both the parties’ need to 

disclose information to certain 

individuals and the harms of overbroad 

disclosure. Proposed § 106.45(b)(5) 

would enable a recipient to take steps to 

prevent the harms repeatedly raised by 

stakeholders, while also respecting the 

Department’s objectives as discussed in 

the preamble to the 2020 amendments. 

Proposed § 106.45(b)(5) would protect 

the ability of the parties to gather 

evidence and to confide in others and 

would address concerns about the 

chilling effect on reporting and potential 

interference with the integrity of the 

grievance procedures associated with 

widespread information sharing. Under 

proposed § 106.45(b)(5), the Department 

would require a recipient to take 

reasonable steps to protect the privacy 

of the parties and witnesses during the 

pendency of the grievance procedures. 

In doing so, proposed § 106.45(b)(5) 

would fulfill the purpose of enabling a 

recipient to take steps that are 

responsive to its educational 

environment and its interest in 

preserving the fairness and integrity of 

its grievance procedures. Unrestricted 

disclosures of sensitive information 

could threaten the fairness of the 


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process by deterring parties or witnesses 

from participating, negatively affecting 

the reliability of witness testimony, 

facilitating retaliatory harassment, and 

other potential harms. Even if the 

parties, witnesses, and others 

participating do not disclose sensitive 

information, the fear that such 

information might be disclosed could 

affect those individuals’ willingness to 

participate fully in the process. 

Proposed § 106.45(b)(5) would not 

permit a recipient to prohibit parties 

from criticizing the recipient’s handling 

of the grievance procedures; however, 

the provision would allow a recipient to 

take reasonable steps to protect the 

privacy of the parties and witnesses 

during the pendency of the grievance 

procedures. 

The proposed regulations would also 

include protections against witness 

intimidation and retaliatory disclosures 

of information as part of the general 

prohibition on retaliation under current 

and proposed § 106.71. Proposed 

§ 106.45(b)(5) would also further protect 

against the harmful effects of improper 

disclosures by requiring a recipient to 

take proactive steps to protect privacy 

while the grievance procedures are 

ongoing. A party’s intimidation of a 

witness or a party’s improper disclosure 

of information to a witness could 

compromise the fairness of the 

grievance procedures. Whereas current 

and proposed § 106.71 would allow, as 

appropriate, subsequent disciplinary 

action for a party who engages in this 

type of retaliatory conduct, proposed 

§ 106.45(b)(5) would focus on the 

preventive steps that a recipient would 

need to take as a means of safeguarding 

the fairness of the process and the 

reliability of the outcome. In addition, 

proposed § 106.45(b)(5) would not apply 

after the conclusion of the grievance 

procedures, yet the protections of 

current and proposed § 106.71 would 

remain in effect. 

Proposed § 106.45(b)(5) would cabin 

the discretion that a recipient has in 

taking these reasonable steps to protect 

privacy, however, including by 

clarifying that any steps must not 

restrict the parties’ ability to obtain and 

present evidence. Similarly, to ensure 

the fairness of the process, proposed 

§ 106.45(b)(5) would prohibit the 

recipient from taking any steps to 

protect privacy that restrict the parties’ 

ability to consult with an advisor, 

prepare for a hearing, or otherwise 

defend their interests consistent with 

current § 106.45(b)(5)(iv) and (6). In 

addition, consistent with the 

Department’s previous acknowledgment 

that the grievance process is 

‘‘challenging, difficult, and stressful to 

navigate,’’ 85 FR 30305, proposed 

§ 106.45(b)(5) would protect the parties’ 

ability to speak with family members or 

confidential resources about the 

process. Moreover, nothing in proposed 

§ 106.45(b)(5) would prohibit a recipient 

from allowing the parties to consult 

with individuals beyond those listed in 

§ 106.45(b)(5). Finally, proposed 

§ 106.45(b)(5) would protect the parties’ 

ability to speak with witnesses, subject 

to the requirement in proposed § 106.71 

that a recipient prohibit intimidation, 

threats, coercion, or discrimination 

against any individual, including 

witnesses, for the purpose of interfering 

with any right under Title IX. A 

recipient’s obligations under proposed 

§ 106.71 are explained in more detail in 

the discussion of that proposed 

provision. 

The Department reiterates that 

students, employees, and third parties 

retain their First Amendment rights, and 

the Department’s proposed regulations 

would not infringe on these rights. The 

Department further notes that current 

§ 106.6(d), to which the Department is 

not proposing any changes, states that 

nothing in the Title IX regulations 

‘‘requires a recipient to . . . [r]estrict 

any rights that would otherwise be 

protected from government action by 

the First Amendment of the U.S. 

Constitution.’’ 34 CFR 106.6(d). 

Accordingly, when taking reasonable 

steps to protect the privacy of the 

parties and witnesses, a recipient must 

be mindful of the rights protected by the 

First Amendment, when relevant. 

Section 106.45(b)(6) Objective 

Evaluation of All Relevant Evidence and 

106.45(B)(7) Exclusion of Impermissible 

Evidence 

Current regulations: Section 

106.45(b)(1)(ii) requires a recipient to 

objectively evaluate all relevant 

evidence, including both inculpatory 

and exculpatory evidence. In addition, 

current § 106.45(b)(1)(ii) prohibits 

recipients from making credibility 

determinations based on a person’s 

status as a complainant, respondent, or 

witness. 

The current regulations also address 

in several different provisions certain 

types of evidence that cannot be used or 

are not relevant in the grievance 

procedures. Current § 106.45(b)(1)(x) 

prohibits the use of questions or 

evidence that constitute, or seek 

disclosure of, information protected 

under a legally recognized privilege 

unless that privilege has been waived by 

the person holding the privilege. In 

addition, current § 106.45(b)(5)(i) 

prohibits a recipient from accessing, 

considering, disclosing, or otherwise 

using a party’s treatment records made 

or maintained by recognized 

professionals, paraprofessionals, or 

assistants to those professionals acting 

in those specified capacities unless the 

recipient obtains voluntary, written 

consent of that party for use in the 

recipient’s grievance procedures as 

defined in current § 106.45. Further, 

current § 106.45(b)(6)(i) and (ii) state 

that ‘‘[q]uestions and evidence about the 

complainant’s sexual predisposition or 

prior sexual behavior are not relevant’’ 

unless questions and evidence about the 

complainant’s prior sexual behavior are 

offered to prove that someone other than 

the respondent committed the alleged 

conduct or to prove consent, if the 

questions and evidence pertain to 

specific incidents of the complainant’s 

prior sexual behavior. 

Proposed regulations: In proposed 

§ 106.45(b)(6), the Department would 

retain the requirement that a recipient 

objectively evaluate all relevant 

evidence, including both inculpatory 

and exculpatory evidence, and the 

requirement that credibility 

determinations must not be based on a 

person’s status as a complainant, 

respondent, or witness. The Department 

proposes making a minor change to this 

provision by incorporating a crossreference to the definition of ‘‘relevant’’ 

in proposed § 106.2. The Department 

also proposes moving and clarifying the 

three categories of impermissible 

evidence, which appear in various 

provisions in the current regulations, to 

proposed § 106.45(b)(7). Under 

proposed § 106.45(b)(7), a recipient 

must exclude these three types of 

evidence, and questions seeking these 

types of evidence, as impermissible (i.e., 

must not be accessed, considered, 

disclosed, or otherwise used), regardless 

of whether they are relevant—except as 

specified in proposed § 106.45(b)(7). 

The requirement that evidence must 

be relevant and the prohibition on the 

use of three types of evidence (except as 

specified in proposed § 106.45(b)(7)) 

would apply to the grievance 

procedures under proposed § 106.45, 

and if applicable proposed § 106.46. 

Thus, the prohibitions on the use of 

evidence, and questions seeking that 

evidence, would apply to all recipients 

in all sex discrimination grievance 

procedures. 

Under the first category in proposed 

§ 106.45(b)(7)(i), a recipient could not 

access, consider, disclose, or otherwise 

use in its grievance procedures evidence 

that is protected under a privilege as 

recognized by Federal or State law (e.g., 

attorney-client privilege)—unless the 

person holding the privilege has waived 

it voluntarily in a manner that is 


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permitted in the recipient’s jurisdiction. 

In light of this proposed addition, the 

Department proposes removing current 

§ 106.45(b)(1)(x), which similarly 

prohibits the use of evidence or 

questions that seek evidence protected 

under a legally recognized privilege. 

Under the second category in 

proposed § 106.45(b)(7)(ii), a party’s 

records that are made or maintained by 

a physician, psychologist, or other 

recognized professional or 

paraprofessional in connection with the 

provision of treatment to the party must 

not be accessed, considered, disclosed, 

or otherwise used in the grievance 

procedures without that party’s consent 

for the records to be used in the 

recipient’s grievance procedures. Any 

consent must be voluntary and in 

writing. Current § 106.45(b)(5)(i) 

prohibits a recipient from accessing, 

considering, disclosing, or otherwise 

using these treatment records. The 

proposed regulations would move this 

prohibition to proposed 

§ 106.45(b)(7)(ii). 

Under the third category in proposed 

§ 106.45(b)(7)(iii), evidence related to 

the complainant’s prior sexual conduct 

must not be accessed, considered, 

disclosed, or otherwise used in a 

recipient’s grievance procedures unless 

it is offered to prove that someone other 

than the respondent committed the 

alleged conduct or to prove consent 

with evidence concerning specific 

incidents of the complainant’s prior 

sexual conduct with the respondent. 

The proposed regulations would clarify 

that the fact that prior consensual sexual 

conduct between the complainant and 

respondent has occurred does not 

demonstrate or imply the complainant’s 

consent to the alleged sex-based 

harassment or preclude a determination 

that sex-based harassment occurred. The 

consideration of evidence related to the 

complainant’s sexual interests would 

also be impermissible. Because the 

proposed regulations incorporate these 

prohibitions into proposed 

§ 106.45(b)(7)(iii), the Department 

proposes removing descriptions of these 

same prohibitions from current 

§ 106.45(b)(6)(i) and (ii), which address 

hearings and written questions. Instead, 

the Department proposes including 

cross-references to proposed 

§ 106.45(b)(7) within proposed 

§ 106.46(f), which would address 

credibility assessments and hearings. 

Reasons: In proposed § 106.45(b)(6), 

the Department proposes inserting a 

cross-reference to proposed § 106.2 to 

make clear that a recipient should apply 

the regulatory definition of ‘‘relevant’’ at 

proposed § 106.2 when evaluating the 

relevance of evidence. As noted in the 

discussion of the definition of 

‘‘relevant’’ in proposed § 106.2, the 

Department proposes adding this 

definition to assist recipients in 

determining which evidence is relevant 

and to help parties understand these 

determinations. 

Proposed § 106.45(b)(7) identifies 

three categories of evidence that a 

recipient must not access, consider, 

disclose, or otherwise use, or permit 

questions seeking, in a recipient’s 

grievance procedures required by the 

proposed regulations regardless of 

whether evidence in these categories is 

relevant. The current regulations create 

similar protections against any use of 

this evidence but do so in several 

different provisions. The Department 

proposes moving these provisions to 

§ 106.45(b)(7) for ease of reference and 

to make clear to recipients and others 

that these types of evidence would be 

excluded from the general requirement 

that the recipient conduct an objective 

evaluation of all relevant evidence. The 

Department is also proposing minor 

changes to the three categories of 

evidence that may not be used 

regardless of relevance. 

Under the first category, the 

Department proposes prohibiting any 

use of evidence or questions seeking 

evidence that is protected under a 

privilege as recognized by Federal or 

State law. Current § 106.45(b)(1)(x) 

prohibits the use of questions or 

evidence protected under a legally 

recognized privilege unless that 

privilege has been waived by the person 

holding the privilege. The Department 

remains committed to protecting this 

information, and proposes moving this 

protection of privileged information to 

§ 106.45(b)(7)(i), without changing the 

nature or scope of this protection. 

Current § 106.45(b)(1)(x) prohibits a 

recipient from using information 

protected by a legally recognized 

privilege without specifying the 

source(s) for this privilege. To avoid any 

confusion, the Department proposes 

clarifying that the source of that legally 

recognized privilege would be a 

privilege that arises under Federal or 

State law. In the proposed regulations, 

the Department would clarify that this 

evidence may be used in the recipient’s 

grievance procedures only if the person 

holding the privilege has waived the 

privilege voluntarily and in a manner 

permitted in the recipient’s jurisdiction. 

Consequently, the Department proposes 

removing current § 106.45(b)(1)(x), 

which prohibits the use of evidence or 

questions that seek evidence protected 

under a legally recognized privilege, as 

duplicative of proposed 

§ 106.45(b)(7)(i). 

Under the second category, the 

Department proposes prohibiting any 

use of, or questions seeking, a party’s 

records that are made or maintained by 

a physician, psychologist, or other 

recognized professional or 

paraprofessional in connection with the 

provision of treatment to the party 

absent the party’s voluntary, written 

consent. The current regulations 

prohibit the use of these records at 

§ 106.45(b)(5)(i). The Department 

proposes reaffirming the protection of 

treatment records by moving it to the 

list of impermissible types of evidence 

at § 106.45(b)(7)(ii). 

The Department also proposes 

technical edits to this provision. 

Specifically, the Department proposes 

removing the term ‘‘psychiatrist’’ from 

the list of professions because a 

psychiatrist is covered by the term 

‘‘physician.’’ The Department also 

proposes removing the phrase 

‘‘requiring the professional or 

paraprofessional to be acting or assisting 

in the professional or paraprofessional’s 

capacity’’ because this is covered by the 

requirement that the records be made in 

connection with the provision of 

treatment. The protection of treatment 

records under proposed 

§ 106.45(b)(7)(ii) would encompass 

treatment records that are made and 

maintained by the recipient (such as 

when a physician is employed by the 

recipient), as well as treatment records 

that are made and maintained by 

external providers. Even when a party 

affirmatively provides treatment records 

to the recipient, proposed 

§ 106.45(b)(7)(ii) would still require the 

recipient to obtain voluntary, written 

consent to use those records in the 

recipient’s grievance procedures. 

Current § 106.45(b)(5)(i) references the 

FERPA regulations, at 34 CFR 99.3, and 

requires the recipient to obtain consent 

of a parent related to the party’s records 

for a party that is not an eligible student 

under those regulations. The FERPA 

regulations define an eligible student as 

‘‘a student who has reached 18 years of 

age or is attending an institution of 

postsecondary education.’’ 34 CFR 99.3. 

The Department proposes removing this 

reference because the proposed 

regulations would make clear, in 

proposed § 106.6(g), that nothing in 

these regulations would limit the rights 

of a parent, guardian, or otherwise 

authorized legal representative to act on 

behalf of their child, including in a 

recipient’s grievance procedures. When 

evaluating evidence that is relevant but 

may be impermissible, the Department 

expects recipients to be mindful of the 

rights of parents, guardians, and other 

authorized legal representatives under 


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proposed § 106.6(g). These rights may 

include the authority to provide consent 

on behalf of a minor student for the use 

of such evidence. 

Under the third category, the 

Department proposes clarifying in 

§ 106.45(b)(7)(iii) that evidence, or 

questions seeking evidence, about the 

complainant’s sexual interests and prior 

sexual conduct would be impermissible 

and a recipient must not rely upon such 

evidence regardless of relevance other 

than in either of two narrow exceptions: 

(1) when evidence of the complainant’s 

prior sexual conduct is offered to prove 

that someone other than the respondent 

committed the alleged conduct; or (2) 

when evidence concerning specific 

incidents of the complainant’s prior 

sexual conduct with the respondent is 

offered to prove consent. This provision 

is substantially similar to the 

corresponding prohibition in the current 

regulations, at § 106.45(b)(6)(i) and (ii), 

on questions and evidence about the 

complainant’s sexual predisposition and 

prior sexual behavior. In the preamble 

to the 2020 amendments, the 

Department noted that these 

prohibitions ‘‘mirror[ ] rape shield 

protections applied in Federal courts,’’ 

85 FR 30103, and that ‘‘rape shield 

protections serve a critically important 

purpose in a Title IX sexual harassment 

grievance process: Protecting 

complainants from being asked about or 

having evidence considered regarding 

sexual behavior, with two limited 

exceptions,’’ id. at 30351. Although the 

current regulations deem these types of 

questions and evidence not to be 

relevant, see id. at 30353, the proposed 

regulations would clarify that these 

types of questions and use of these types 

of evidence would be impermissible 

regardless of relevance. 

In addition, the Department proposes 

adding language concerning the 

exception for specific incidents of prior 

sexual conduct between the 

complainant and the respondent to 

clarify the narrow scope of this 

exception. Proposed § 106.45(b)(7)(iii) 

would explain that although evidence 

concerning specific incidents of a 

complainant’s prior sexual conduct with 

the respondent may be permissible 

when offered to prove consent, the mere 

fact that prior consensual sexual 

conduct between the complainant and 

respondent occurred or that there are 

similarities in the types of 

communications related to consent does 

not itself demonstrate or imply the 

complainant’s consent to the alleged 

sex-based harassment and does not 

preclude a determination that sex-based 

harassment occurred. 

The Department also proposes 

modifying two terms in 

§ 106.45(b)(7)(iii), though the proposed 

provision would exclude the same 

universe of questions and evidence as 

the current provision. The Department 

proposes replacing references to the 

complainant’s ‘‘prior sexual behavior’’ 

with ‘‘prior sexual conduct.’’ The 

Department tentatively views the term 

‘‘prior sexual conduct’’ as more precise 

because the proposed regulations 

repeatedly use the term ‘‘conduct,’’ 

including within this provision to refer 

to an exception for evidence that would 

be offered to prove who engaged in the 

alleged conduct. 

In addition, the Department proposes 

replacing the term ‘‘sexual 

predisposition’’ with the term ‘‘sexual 

interests.’’ In the preamble to the 2020 

amendments, the Department stated that 

its ‘‘use of the phrase ‘sexual 

predisposition’ is mirrored in Fed. R. 

Evid. 412.’’ Id. In response to the 2018 

NPRM, the Department received 

comments that the phrase ‘‘ ‘sexual 

predisposition’ . . . harkens back to the 

past and puts on trial the sexual 

practices and identity of the 

complainant, which have no relevance 

to the adjudication of particular 

allegations.’’ Id. at 30351. The 

Department sought to clarify in the 

preamble to the 2020 amendments that 

‘‘far from indicating intent to harken 

back to the past where sexual practices 

of a complainant were used against a 

complainant, the final regulations take a 

strong position that questions or 

evidence of a complainant’s ‘sexual 

predisposition’ are simply irrelevant, 

without exception.’’ Id. at 30353. The 

Department would maintain its position 

that questions seeking this evidence are 

not permitted and that this evidence 

must not be relied upon; however, the 

Department would seek to convey this 

prohibition without using an outdated 

phrase that may conjure the type of 

assumptions that the Department seeks 

to prohibit. Evidence related to sexual 

predisposition that is prohibited under 

the current regulations would continue 

to be prohibited as evidence related to 

sexual interests under the proposed 

regulations. 

The Department proposes moving the 

protection just described from current 

§ 106.45(b)(6)(i) and (ii) to proposed 

§ 106.45(b)(7)(iii). In the current 

regulations, the prohibition on 

questions and evidence about the 

complainant’s sexual predisposition and 

prior sexual behavior appears in the 

section about hearings but does not 

provide protection when the same 

evidence is presented in connection 

with an investigation. Instead, under the 

current regulations, when evidence 

related to a party’s sexual predisposition 

or prior sexual behavior is directly 

related to the allegations, the 

Department stated that ‘‘the recipient 

should allow both parties an equal 

opportunity to inspect and review such 

evidence to be able to prepare to 

respond to it or object to its introduction 

in the investigative report or at the 

hearing.’’ Id. at 30428. The Department 

is concerned that permitting the parties 

to review these types of evidence 

undermines the purpose of this 

protection. Disclosing evidence of a 

complainant’s prior sexual conduct 

(beyond the narrow exceptions) or 

sexual interests could unnecessarily 

harm complainants and chill reporting 

even if questioning about that evidence 

is ultimately prohibited at a hearing. 

Consequently, the Department proposes 

moving the prohibition on questions 

and evidence about sexual interests and 

prior sexual conduct to 

§ 106.45(b)(7)(iii), where it would apply 

to the entirety of the grievance 

procedures under § 106.45, and if 

applicable § 106.46. 

Section 106.45(c) Notice of Allegations 

Current regulations: Current 

§ 106.45(b)(2) requires a recipient to 

provide parties who are known to the 

recipient with written notice of the 

allegations of sexual harassment and of 

the recipient’s grievance process, 

including any informal resolution 

process. Sufficient detail must be 

provided in this notice, including the 

conduct allegedly constituting sexual 

harassment, the identities of the parties 

involved in the alleged incident, and the 

date and location of the alleged 

incident. 

In addition, current § 106.45(b)(2) 

requires that the notice inform the 

parties that they may have an advisor of 

their choice, who may be an attorney, 

that they have a right to inspect and 

review certain evidence, and 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. Current § 106.45(b)(2) 

also provides that if, in the course of an 

investigation, the recipient decides to 

investigate allegations about the 

complainant or respondent that are not 

included in the notice provided above, 

the recipient must provide notice of the 

additional allegations to the parties 

whose identities are known. 

The current regulations do not 

include specific requirements for a 

written notice of allegations for 

complaints of sex discrimination other 


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than formal complaints of sexual 

harassment. 

Proposed regulations: The 

Department proposes maintaining some 

components of current § 106.45(b)(2), 

eliminating or clarifying others, and 

extending the requirement for a 

recipient to provide the parties with 

notice of allegations in its resolution of 

any complaints of sex discrimination, 

rather than only for sexual harassment. 

The Department proposes a more 

detailed written notice of allegations for 

complaints of sex-based harassment 

involving students at postsecondary 

institutions in proposed § 106.46(c). 

Because the proposed regulations do 

not include a formal complaint 

requirement, the Department would 

clarify that the notice of allegations 

must be provided upon initiation of the 

recipient’s grievance procedures as 

described in proposed § 106.45 and any 

informal resolution process under 

proposed § 106.44(k). 

Proposed § 106.45(c) would preserve 

the current requirements that the 

recipient notify the parties of the 

applicable grievance procedures and 

provide sufficient information available 

at the time to allow the parties to 

respond to the allegations, including the 

identities of the parties involved in the 

incident, the conduct alleged to 

constitute sex discrimination under 

Title IX, and the date and location of the 

alleged incident, to the extent that 

information is available to the recipient. 

The Department proposes requiring the 

notice to also include a statement that 

retaliation is prohibited. 

Proposed § 106.45(c) would preserve, 

with some additional clarification, the 

requirement in the current regulations 

that a recipient provide notice of 

additional allegations to the parties if, in 

the course of an investigation, the 

recipient decides to investigate 

additional allegations about the 

respondent, if applicable, that were not 

included in the initial notice. 

The Department proposes giving 

recipients flexibility to provide the 

notice that would be required under 

proposed § 106.45(c) either orally or in 

writing. 

For additional requirements regarding 

the application of this provision in 

grievance procedures for sex-based 

harassment complaints involving 

postsecondary students, see the 

discussion of proposed § 106.46(c). 

Reasons: Consistent with the 

requirement to provide adequate, 

reliable, and impartial investigations, 

proposed § 106.45(c) would require a 

recipient to provide the parties with 

notice of the allegations. The Supreme 

Court, in the context of a due process 

case concerning the rights of public 

school students facing temporary 

disciplinary suspension, reinforced the 

importance of this opportunity, stating 

that students in that context are entitled 

to notice of the charges and an 

explanation of the evidence against 

them. Goss, 419 U.S. at 581. The 

Department therefore proposes applying 

this principle to a recipient’s initiation 

of grievance procedures for any 

complaint of sex discrimination. 

Proposed § 106.45(c) would require a 

recipient to provide notice of the 

applicable grievance procedures, any 

informal resolution process, the 

identities of the parties involved in the 

incident, the conduct alleged to 

constitute sex discrimination under 

Title IX, and the date and location of the 

alleged incident, to the extent that 

information is available to the recipient. 

The Department also proposes 

requiring a recipient to notify the parties 

that retaliation is prohibited in 

proposed § 106.45(c). This proposed 

change responds to comments OCR 

received in the June 2021 Title IX Public 

Hearing and in listening sessions that 

complainants sometimes experience 

retaliation after complaining of sex 

discrimination. Requiring a recipient to 

remind the parties early in the grievance 

procedures that retaliation for making a 

complaint or otherwise participating in 

the grievance procedures is prohibited 

would help prevent efforts to retaliate 

and would ensure that parties know to 

report it if it happens. 

Proposed § 106.45(c) would preserve 

the requirement in current 

§ 106.45(b)(2)(ii) that a recipient provide 

notice of additional allegations to the 

parties if, in the course of an 

investigation, the recipient decides to 

investigate additional allegations that 

were not included in the initial notice. 

This requirement is important for 

ensuring that parties have sufficient 

information about the allegations at 

issue with sufficient time as set out in 

the recipient’s grievance procedures to 

identify or provide evidence relevant to 

those allegations. Consistent with the 

scope of the grievance procedures under 

proposed § 106.45, the Department 

proposes changing this requirement to 

cover any additional allegations of sex 

discrimination. The Department 

proposes a minor change to provide 

better guidance about the circumstances 

that would trigger this requirement. The 

proposed addition would specify that 

the additional allegations requiring 

notice are about: (1) the respondent’s 

conduct toward the complainant, if 

applicable; or (2) conduct alleged in a 

new complaint that has been 

consolidated with the original 

complaint. 

As further explained in the discussion 

of proposed § 106.46(c), the Department 

proposes requiring a more detailed and 

formal notice of allegations for 

complaints of sex-based harassment 

involving student parties at 

postsecondary institutions. The 

Department proposes that complaints of 

sex discrimination but not sex-based 

harassment involving postsecondary 

student parties be resolved under the 

more flexible and streamlined 

requirements of proposed § 106.45(c). 

Proposed § 106.45(c) would not 

prescribe whether notice of the 

allegations must be in writing; a 

recipient would be able exercise its 

discretion regarding whether to provide 

the required notice in writing. In some 

cases, it may be important to provide 

written notice of the allegations, 

particularly in cases involving more 

serious conduct and more serious 

consequences. Written notice may also 

sometimes be required under State or 

local law or recipient policy where 

suspension or other serious disciplinary 

consequences may apply. In all cases, 

proposed § 106.8(f) would require the 

recipient to maintain records 

documenting its response to complaints 

of sex discrimination, including the 

notice of allegations. However, the 

Department does not propose to require 

notice of the allegations to be in writing 

in all cases because doing so may limit 

a recipient’s ability to respond promptly 

and in an age- and developmentally 

appropriate way when a student 

complains of sex discrimination. For 

example, in the elementary school or 

secondary school context, a requirement 

that a recipient always provide written 

notice of allegations would limit a 

recipient’s ability to respond to an 

incident when it occurs, even though 

such a prompt response can be a 

valuable teaching moment, particularly 

with younger students. And with 

respect to many sex discrimination 

complaints that do not allege sex-based 

harassment, there may be no respondent 

and therefore no need to provide notice 

of the allegations because the 

complainant will already have 

information about the alleged sex 

discrimination. In all cases, however, 

the proposed regulations would require 

the notice of the allegations to be clear 

so that a respondent and complainant 

both understand the alleged conduct the 

recipient intends to investigate. Clear 

notice affords each party the 

opportunity to present their account of 

what happened, including providing 

relevant evidence and witnesses in 

support of their account. When notice is 


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inadequate, it would not meet the 

requirements of proposed § 106.45(c). 

In addition, proposed § 106.45(c) 

would not include an express provision 

permitting a recipient to delay 

providing notice of the allegations to the 

parties in circumstances when the 

recipient has legitimate concerns for the 

safety of any person as a result of 

providing notice. The Department’s 

current view is that it is not necessary 

to include an express provision 

authorizing a recipient to delay 

providing notice of the allegations in 

order to address safety concerns because 

‘‘upon initiation of grievance 

procedures’’ in proposed § 106.45(c) 

should be understood to permit a 

recipient to delay notice to the parties 

in order to address safety concerns. 

Consistent with proposed § 106.46(c)(3), 

a recipient’s legitimate safety concerns 

must be based on individualized safety 

and risk analysis and not on mere 

speculation or stereotypes. 

Similarly, proposed § 106.45(c) would 

not require the notice of allegations to 

include specific statements that the 

respondent is presumed not responsible, 

that a determination regarding 

responsibility is made at the conclusion 

of the grievance process, that parties 

may have an advisor of their choice, that 

they can review evidence, or whether 

the recipient’s code of conduct prohibits 

knowingly making false statements or 

knowingly submitting false information, 

though a recipient may include such 

statements in its notice of allegations if 

it determines that doing so is 

appropriate. As with the question of 

whether the notice of allegations should 

be reduced to writing, providing the 

parties notice of this information may be 

appropriate and helpful in some cases, 

particularly in cases involving more 

serious conduct and more serious 

consequences, but the Department’s 

tentative view is that requiring it in all 

cases may prevent a recipient from 

responding promptly and appropriately 

to all forms of sex discrimination in the 

educational environment. As explained 

in more detail in the discussion of 

proposed § 106.46(c), a postsecondary 

institution would be required to 

communicate these points in writing 

when implementing grievance 

procedures for complaints of sex-based 

harassment involving postsecondary 

students in light of the unique 

circumstances of those students. 

Section 106.45(d) Dismissal of a 

Complaint 

Current regulations: Section 

106.45(b)(3)(i) states that a recipient 

must investigate allegations in a formal 

complaint unless the conduct alleged in 

the formal complaint would not 

constitute ‘‘sexual harassment’’ as 

defined in current § 106.30 if proved, 

did not occur in the recipient’s 

education program or activity, or did 

not occur against a person in the United 

States. In such cases, the recipient must 

dismiss the complaint with respect to 

that conduct for purposes of sexual 

harassment. Section 106.45(b)(3)(i) 

further states that such dismissals do 

not preclude the recipient from taking 

action under a different provision of its 

code of conduct. 

Current section 106.45(b)(3)(ii) 

permits a recipient to dismiss a formal 

complaint or any of the allegations 

raised in a formal complaint if at any 

time during the investigation or hearing, 

the complainant notifies the Title IX 

Coordinator in writing that the 

complainant would like to withdraw the 

complaint or any of the allegations in 

the complaint, the respondent is no 

longer enrolled or employed by the 

recipient, or specific circumstances 

prevent the recipient from gathering 

sufficient evidence to make a 

determination on the complaint or any 

of the complaint allegations. 

When a recipient dismisses a 

complaint for any of these reasons, 

current § 106.45(b)(3)(iii) requires the 

recipient to promptly and 

simultaneously send written notice of 

the dismissal and the reasons for it to 

the parties. 

Proposed regulations: The 

Department proposes revising 

§ 106.45(b)(3) to permit, but not require, 

a recipient to dismiss allegations in a 

complaint of sex discrimination in 

certain circumstances. Proposed 

§ 106.45(d)(4) would further require a 

recipient that dismisses a complaint to 

comply with the requirements of 

proposed § 106.44 by, at a minimum: (1) 

offering supportive measures to the 

complainant as appropriate under 

proposed § 106.44(g); (2) offering 

supportive measures to the respondent 

as appropriate, under proposed 

§ 106.44(g), for dismissals under 

§ 106.45(d)(1)(iii) or (iv) in which the 

respondent has been notified of the 

allegations; and (3) requiring its Title IX 

coordinator to take other appropriate 

prompt and effective steps to ensure 

that sex discrimination does not 

continue or recur within the recipient’s 

education program or activity under 

proposed § 106.44(f)(6), in addition to 

remedies provided to an individual 

complainant. 

The Department proposes adding 

§ 106.45(d)(1)(i) to provide that a 

recipient may dismiss a complaint when 

it is unable to identify the respondent 

after taking reasonable steps to do so. 

The Department also proposes changing 

current § 106.45(b)(3)(ii) to state in 

proposed § 106.45(d)(1)(ii) that a 

recipient may dismiss a complaint if the 

respondent is not participating in the 

recipient’s education program or 

activity or not employed by the 

recipient, rather than allowing dismissal 

only if the respondent is no longer 

enrolled in the recipient’s education 

program or activity or no longer 

employed by the recipient. The 

Department proposes maintaining, in 

proposed § 106.45(d)(1)(iii), the part of 

current § 106.45(b)(3)(ii) that permits a 

recipient to dismiss a complaint or 

complaint allegations when a 

complainant withdraws them. The 

Department proposes revising this 

provision by eliminating the 

requirement that the complainant notify 

the Title IX Coordinator in writing of 

the withdrawal (except in 

postsecondary complaints of sex-based 

harassment involving a student party, as 

explained in greater detail in the 

discussion of proposed § 106.46(d)). In 

addition, the Department would add 

proposed § 106.45(d)(1)(iv), which 

would permit but not require a recipient 

to dismiss a complaint of sex 

discrimination or some of its allegations 

when, after making reasonable efforts to 

clarify the allegations with the 

complainant, the recipient determines 

that the conduct alleged, even if proven, 

would not constitute sex discrimination 

under Title IX. The Department also 

proposes removing the requirement that 

a recipient dismiss a complaint when 

the conduct alleged did not occur in the 

recipient’s education program or 

activity or against a person in the 

United States. In addition, the 

Department proposes removing 

language from current § 106.45(b)(3)(i) 

that a dismissal under that paragraph 

does not preclude action under another 

provision of the recipient’s code of 

conduct. Finally, the Department 

proposes eliminating from current 

§ 106.45(b)(3)(ii) the provision that 

permits a recipient to dismiss a 

complaint when ‘‘specific 

circumstances’’ prevent the recipient 

from gathering evidence sufficient to 

reach a determination as to the formal 

complaint or allegations therein. 

The Department proposes clarifying 

in § 106.45(d)(2) that upon dismissal, a 

recipient must promptly notify the 

complainant of the dismissal and the 

reasons for it, and, if a respondent has 

already been notified of the allegations, 

then the recipient must also notify the 

respondent of the dismissal and the 

basis for the dismissal promptly 

following notification to the 


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complainant, or simultaneously if 

notification is in writing. The 

Department also proposes incorporating 

current § 106.45(b)(8), which grants 

parties a right to appeal dismissals, into 

proposed § 106.45(d)(3). Proposed 

§ 106.45(d)(3) would provide that when 

a complaint is dismissed, the recipient 

must notify all parties that a dismissal 

may be appealed, and in an appeal of a 

complaint dismissal, a recipient must: 

(i) notify the parties when an appeal is 

filed and implement appeal procedures 

equally for the parties; (ii) ensure that 

the decisionmaker for the appeal did not 

take part in an investigation of the 

allegations or dismissal of the 

complaint; (iii) ensure that the 

decisionmaker for the appeal has been 

trained as set out in proposed 

§ 106.8(d)(2); (iv) provide the parties a 

reasonable and equivalent opportunity 

to make a statement in support of, or 

challenging, the outcome; and (v) notify 

all parties of the result of the appeal and 

the rationale for the result. For 

additional requirements regarding the 

application of this provision in 

grievance procedures for sex-based 

harassment complaints involving 

postsecondary students, see the 

discussion of proposed § 106.46(d). 

Reasons: Eliminating mandatory 

dismissals and permitting dismissals in 

certain circumstances. To ensure a 

nondiscriminatory educational 

environment as required by Title IX, 

OCR has long interpreted Title IX to 

require that a recipient must respond to 

notice of possible sexual harassment by 

determining what occurred and 

resolving any sexual harassment. Prior 

to 2020, the Department had not 

addressed whether a recipient could 

dismiss complaints of sexual 

harassment (i.e., decline to investigate 

or decline to complete an investigation) 

and if so, under what circumstances. 

Section 106.45(b)(3) of the 2020 

amendments includes a mandatory 

dismissal provision, which requires an 

initial assessment of whether alleged 

conduct constitutes sexual harassment 

in a recipient’s education program or 

activity. 85 FR 30289. Since the 2020 

amendments went into effect, however, 

OCR has received feedback objecting to 

§ 106.45(b)(3)(i), including from 

recipients, through the June 2021 Title 

IX Public Hearing and numerous 

listening sessions with stakeholders, 

and the Department received additional 

feedback in 2022 meetings held under 

Executive Order 12866. Some 

stakeholders expressed concern that 

requiring the dismissal of complaints 

without completing an investigation 

deprives a recipient of the opportunity 

to afford students the full protections of 

Title IX’s nondiscrimination mandate. 

Others raised practical concerns, 

including concerns about the timing of 

such dismissals, asking how a recipient 

can effectively judge at the outset 

whether an allegation meets the 

definition of sexual harassment, noting 

that such a rule creates uncertainty for 

all parties and exposes a recipient to 

potential liability if either party 

challenges the dismissal. 

The Department’s current view is that 

a recipient should not be required to 

determine whether the conduct alleged 

meets the definition of sex 

discrimination at the outset of a 

complaint. Based on the feedback 

described, the Department recognizes 

that in most cases, it will not be clear 

whether alleged conduct could 

constitute sex discrimination under 

Title IX and, therefore, a recipient 

would be required to take additional 

steps to comply with its obligation 

under Title IX to have its education 

program or activity free from sex 

discrimination. In these cases, the 

proposed grievance procedures would 

guide the recipient’s investigation and 

determination to ensure that both are 

prompt and equitable. The Department 

recognizes, however, that making such a 

determination may be appropriate in a 

limited set of circumstances, when it is 

clear from the allegations alone that the 

conduct alleged, even if proven, would 

not constitute sex discrimination under 

Title IX. In those cases, the 

Department’s current view is that a 

recipient should have the discretion to 

dismiss the complaint and avoid 

conducting an unnecessary 

investigation. 

Having reconsidered the issues in 

light of the facts and circumstances, 

including but not limited to stakeholder 

concerns, the Department proposes 

amending § 106.45(b)(3) to permit but 

not require a recipient to dismiss a 

complaint for any of the following 

reasons: (i) the recipient is unable to 

identify the respondent after taking 

reasonable steps to do so (proposed 

§ 106.45(d)(1)(i)); (ii) the respondent is 

not participating in the recipient’s 

education program or activity and is not 

employed by the recipient (proposed 

§ 106.45(d)(1)(ii)); (iii) the complainant 

voluntarily withdraws any or all of the 

allegations in the complaint and the 

recipient determines that without the 

complainant’s withdrawn allegations, 

the conduct that remains in the 

complaint, even if proven, would not 

constitute sex discrimination under 

Title IX (proposed § 106.45(d)(1)(iii)); 

and (iv) the recipient determines the 

conduct alleged in the complaint, even 

if proven, would not constitute sex 

discrimination under Title IX (proposed 

§ 106.45(d)(1)(iv)). 

The Department recognizes that for 

many sex discrimination complaints, 

there will not be a ‘‘respondent’’ as that 

term is understood in the context of sexbased harassment complaints; rather, 

the claim will be that the school’s 

policies or practices deprived students 

of an equal educational opportunity 

based on sex in violation of Title IX. In 

such cases, a recipient would still be 

able to dismiss a complaint based on 

one of the two dismissal bases that are 

not tied to a particular respondent: 

proposed § 106.45(d)(1)(iii), when the 

complainant withdraws some or all of 

the allegations of the complaint and the 

remaining allegations, even if true, 

would not constitute sex discrimination 

under Title IX; and proposed 

§ 106.45(d)(1)(iv), when the conduct 

alleged in the complaint, even if proven, 

would not constitute sex discrimination 

under Title IX. 

Proposed § 106.45(d)(4) would further 

require a recipient that dismisses a 

complaint to comply with the 

requirements of proposed § 106.44(f) 

and (g) by, at a minimum: (1) offering 

supportive measures to the complainant 

as appropriate under proposed 

§ 106.44(g); (2) offering supportive 

measures to the respondent as 

appropriate under proposed § 106.44(g) 

for dismissals under § 106.45(d)(1)(iii) 

or (iv) in which the respondent has been 

notified of the allegations; and (3) 

require its Title IX Coordinator to take 

other appropriate prompt and effective 

steps to ensure that sex discrimination 

related to any of the allegations or 

information contained in the complaint 

does not continue or recur within the 

recipient’s education program or 

activity under proposed § 106.44(f). 

These steps are necessary because 

dismissal of a complaint of sex 

discrimination occurs before a recipient 

determines whether sex discrimination 

occurred. Therefore, although a 

recipient would not be required to 

comply with the requirements of its sex 

discrimination grievance procedures 

after dismissing a complaint, it would 

nevertheless be required to take steps to 

ensure that the complainant and 

respondent are offered supportive 

measures as appropriate and that its 

education program or activity operates 

free from sex discrimination. 

Finally, the Department proposes 

deleting the statement that a dismissal 

under current § 106.45(b)(3)(i) does not 

preclude action under another provision 

of the recipient’s code of conduct. The 

preamble to the 2020 amendments 

explained that this statement was 


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included in response to concerns raised 

by commenters that a recipient would 

no longer be able to use its own 

grievance procedures to investigate and 

resolve allegations that did not meet the 

current regulations’ definition of 

‘‘sexual harassment.’’ 85 FR 30288. This 

provision would no longer be necessary 

because proposed § 106.45(d) would not 

require a recipient to dismiss 

allegations. This change would address 

recipients’ concerns that the 2020 

amendments excluded from the 

grievance procedures conduct that 

should be within their scope. Moreover, 

although the Department does not 

consider it necessary to refer to the 

other tools a recipient may employ to 

address alleged misconduct, a recipient 

has always been and would continue to 

be free to use other available 

procedures, and nothing in proposed 

§ 106.45(d) would preclude a recipient 

from doing so. 

When the recipient is unable to 

identify the respondent. The 

Department proposes amending current 

§ 106.45(b)(3) to permit a recipient to 

dismiss a complaint when, after taking 

reasonable steps to identify the 

respondent, the recipient is unable to do 

so. Reasonable steps may include but 

are not limited to interviewing the 

complainant, interviewing potential 

witnesses, and reviewing 

contemporaneous records such as video 

footage and visitor logs if relevant. The 

Department’s position is that it is 

appropriate to allow such dismissals at 

a recipient’s discretion when reasonable 

efforts to identify the respondent are not 

successful. 

In deciding whether dismissal may be 

appropriate when the respondent is 

unknown, a recipient should consider 

whether there are good reasons to 

proceed with grievance procedures 

without a respondent. In some cases, the 

specific steps set out in proposed 

§ 106.45 will not be effective without a 

respondent. Although proposed 

§ 106.45(d)(1)(i) allows a recipient to 

dismiss a complaint for which a 

respondent cannot be identified, a 

recipient that chooses to do so must 

nevertheless comply with the 

requirements of proposed § 106.44(f) 

and (g) by offering supportive measures 

and requiring its Title IX Coordinator to 

take other appropriate prompt and 

effective steps to ensure that sex 

discrimination does not continue or 

recur within the recipient’s education 

program or activity (proposed 

§ 106.45(d)(4)). 

In cases in which a recipient 

identifies a respondent after dismissing 

a complaint, either while taking 

necessary steps under proposed 

§ 106.44(f) to ensure equal access to its 

education program or activity or 

through other means, it would be 

permitted to reinstate a dismissed 

complaint and complete its grievance 

procedures at that time. A recipient 

would not need to reinstate its grievance 

procedures in every case. Factors a 

recipient may consider in deciding 

whether to reinstate its grievance 

procedures would include but are not 

limited to whether the complainant or 

the respondent still participates or is 

attempting to participate in the 

recipient’s education program or 

activity, whether the alleged conduct 

has been addressed fully through the 

other steps taken under proposed 

§ 106.44(f) and (g), and whether there is 

a risk of continued sex discrimination or 

a concern regarding safety of the broader 

community. 

When the respondent is not 

participating in the recipient’s 

education program or activity and is not 

employed by the recipient. The 

Department proposes clarifying in 

§ 106.45(d)(1)(ii) that a recipient may 

dismiss a complaint when the 

respondent is not participating in the 

recipient’s education program or 

activity and is not employed by the 

recipient. In such circumstances, 

proposed § 106.45(d)(4) would require 

the recipient to comply with the 

requirements of proposed § 106.44(f) 

and (g) by offering the complainant 

supportive measures and requiring its 

Title IX Coordinator to take other 

appropriate prompt and effective steps 

to ensure that sex discrimination does 

not continue or recur within the 

recipient’s education program or 

activity. 

The current regulations permit 

dismissal when a respondent is no 

longer enrolled in or employed by the 

recipient. The proposed modification— 

changing the term ‘‘enrolled in’’ to the 

term ‘‘participating in’’—would 

recognize that some student 

respondents may continue to participate 

in a recipient’s education program or 

activity even though they are not 

enrolled and that their participation 

could affect the complainant’s access to 

the recipient’s education program or 

activity. Such continued participation 

could include serving in an alumni 

organization, as a volunteer, or 

attending school-related events. In 

addition, a student who is on an 

approved leave from a postsecondary 

institution typically plans to return to 

the campus community and thus 

remains part of, and therefore a 

participant in, the recipient’s education 

program or activity, even if from a 

distance. A recipient would have the 

discretion to restrict such an 

individual’s ability to continue 

participating in its education program or 

activity, either under proposed 

§ 106.44(g) as a supportive measure to 

the extent necessary to restore or 

preserve the complainant’s equal access 

to its education program or activity, or 

under proposed § 106.45, and if 

applicable proposed § 106.46, as a 

disciplinary action at the conclusion of 

its grievance procedures. Finally, 

proposed § 106.45(d)(1)(ii) would 

encompass complaints against a 

respondent who was never enrolled in 

or employed by a recipient, and permits 

dismissal of those complaints as well. 

As explained in the discussion of the 

proposed definition of a ‘‘respondent’’ 

(§ 106.2), a third party may be a 

respondent to a complaint of sex 

discrimination. 

By proposing to permit a recipient to 

dismiss a complaint of sex 

discrimination because the respondent 

is not a student or an employee of the 

institution or is a former student or 

employee, the Department does not 

suggest that a recipient lacks an 

obligation under Title IX to address sex 

discrimination by such respondents. 

Rather, consistent with the 

Department’s explanation in the 

preamble to the 2020 amendments, a 

recipient must respond to notice of 

sexual harassment in its education 

program or activity ‘‘regardless of 

whether the complainant or respondent 

is an enrolled student or an employee of 

the recipient.’’ See 85 FR 30488. As 

explained in greater detail in the 

discussion of proposed § 106.44(a), the 

proposed regulations would affirm a 

recipient’s obligation to take action to 

end any sex discrimination that has 

occurred in its education program or 

activity, even by third parties. 

Dismissal of a Title IX complaint 

against a third-party respondent or a 

respondent who is a former student or 

former employee is nevertheless 

permitted when, for example, a 

recipient determines that its lack of 

control over the respondent or other 

factors would prevent it from 

completing its grievance procedures. In 

such cases, proposed § 106.45(d)(4)) 

would apply. Under the proposed 

regulations, the recipient would be 

required, at a minimum, to comply with 

the requirements of proposed § 106.44(f) 

and (g) by offering the complainant 

supportive measures and requiring its 

Title IX Coordinator to take other 

appropriate prompt and effective steps 

to ensure that sex discrimination does 

not continue or recur within the 

recipient’s education program or 

activity. In some cases, ensuring equal 


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access may warrant noting in a student’s 

academic records that the student 

withdrew with a disciplinary action 

pending and is ineligible to re-enroll 

without reinstatement of the grievance 

procedures, or noting in a former 

employee’s personnel file that the 

employee is ineligible for rehire 

pending completion of the grievance 

procedures. In other cases, to ensure 

equal access to its education program or 

activity for the complainant, a recipient 

may need to impose restrictions on a 

respondent who has no relationship to 

the recipient, such as barring the 

respondent from accessing the 

recipient’s facilities or participating in 

activities that are otherwise open to 

members of the public. 

When the complainant voluntarily 

withdraws any or all of the allegations 

in the complaint. The Department 

proposes maintaining current 

§ 106.45(b)(3)(ii), which permits a 

recipient to dismiss a complaint or any 

of the allegations raised in a complaint 

upon request of the complainant. The 

Department proposes revising this 

dismissal basis in proposed 

§ 106.45(d)(1)(iii) to clarify that such 

dismissals are permitted when the 

complainant voluntarily withdraws any 

or all of the allegations in the complaint. 

Requiring a recipient to determine that 

the complainant’s withdrawal is 

voluntary would guard against 

situations in which a complainant is 

coerced or pressured to withdraw a 

complaint but does not do so 

voluntarily or knowingly. For recipients 

and complaints subject only to the Title 

IX grievance procedures in proposed 

§ 106.45, the Department proposes 

eliminating the requirement that a 

complainant request dismissal of a 

complaint or complaint allegations in 

writing to the Title IX Coordinator, 

although a complainant is not precluded 

from making a request in that manner. 

The Department recognizes that through 

discussions between a complainant and 

a Title IX Coordinator or others during 

the course of grievance procedures, a 

complainant may withdraw some or all 

complaint allegations. As explained in 

the discussion of the proposed 

definition of a ‘‘complaint’’ (§ 106.2), 

which the Department proposes would 

not have to be made in writing, OCR 

heard from stakeholders during the June 

2021 Title IX Public Hearing that 

requirements from the 2020 

amendments that a formal complaint be 

written and indicate that the 

complainant is the person filing, such as 

by including the complainant’s physical 

or digital signature, created an 

unnecessarily burdensome process and 

discouraged some individuals from 

making complaints. Based on the 

information received from stakeholders 

and after reconsidering the issue, the 

Department’s current position is that 

requiring a written withdrawal request 

for purposes of complying with Title IX 

may be overly prescriptive and impose 

unnecessary requirements on 

complainants and recipients in those 

circumstances and possibly imposes 

unnecessary burdens on respondents 

(except in postsecondary complaints of 

sex-based harassment involving a 

student party, which is explained in 

greater detail in the discussion of 

proposed § 106.46(d)(1)). 

In cases in which a complainant 

withdraws some or all of the allegations 

and informs the recipient that they do 

not want an investigation to proceed, 

the Department’s current view is that a 

recipient should override a student’s 

request that an investigation not 

proceed only in limited instances in 

which the recipient determines that the 

potential harm from ongoing sex 

discrimination outweighs the 

complainant’s interest in not initiating 

the grievance procedures, including 

consideration of any potential harms the 

complainant identifies that may follow 

from initiation of the recipient’s 

grievance procedures. This position is 

reflected in the preamble to the 2020 

amendments, which noted that a Title 

IX Coordinator might initiate a 

grievance process when a complainant 

chooses not to file a formal complaint to 

prevent a respondent from continuing to 

engage in sexual harassment. 85 FR 

30131. Consistent with OCR’s 

longstanding position regarding when a 

recipient should override a 

complainant’s request for 

confidentiality or not take action in 

response to a report of sexual 

harassment, the recipient must, prior to 

dismissing a complaint withdrawn by a 

complainant, determine whether it can 

honor such a request and still provide 

a safe and nondiscriminatory 

environment for all students. See, e.g., 

2014 Q&A on Sexual Violence at 20; see 

also 2001 Revised Sexual Harassment 

Guidance at 17 (a recipient should 

honor a complainant’s request for 

confidentiality ‘‘as long as doing so does 

not prevent the school from responding 

effectively to the harassment and 

preventing harassment of other 

students’’). 

In addition, the Department proposes 

including a safeguard in 

§ 106.45(d)(1)(iii)—that the recipient 

may dismiss the complaint only if it 

determines that without the withdrawn 

allegations, the conduct alleged in the 

complaint would not constitute sex 

discrimination under Title IX if 

proven—to balance a complainant’s 

request not to proceed with a complaint 

of sex discrimination against a 

recipient’s obligation to ensure its 

education program or activity operates 

free from sex discrimination. In some 

cases, a complainant’s withdrawal of 

allegations would leave no remaining 

allegations for a recipient to address 

through its grievance procedures. 

Dismissal would then be permitted 

under proposed § 106.45(d)(1)(iii). In 

other cases in which a complainant 

withdraws some or all of the allegations 

in a complaint, there may be remaining 

allegations that would independently 

constitute sex discrimination under 

Title IX. This might occur in a 

complaint that involves multiple 

complainants, allegations against 

several respondents, or alleged 

discrimination that occurred on more 

than one occasion. Before dismissing 

the complaint under proposed 

§ 106.45(d)(1)(iii), the recipient must 

consider whether other factors, 

including its obligation to afford equal 

access to its education program or 

activity, warrant initiating grievance 

procedures. In making this 

determination, a recipient may consider 

the seriousness of the sex 

discrimination, whether circumstances 

suggest an increased risk of additional 

acts of sex discrimination by the 

respondent or others, and whether the 

recipient has other means to obtain 

relevant evidence to determine whether 

sex discrimination occurred. These 

considerations may similarly guide a 

Title IX Coordinator in determining 

whether to initiate sex discrimination 

grievance procedures in response to 

information about conduct that may 

constitute sex discrimination under 

Title IX but where there is no complaint 

or the complainant requests that the 

grievance procedures not be initiated, as 

explained in the discussion of proposed 

§ 106.44(f)(5). Proposed 

§ 106.45(d)(1)(iii) would leave to the 

discretion of the recipient to determine 

whether any alleged conduct that 

remains could, if proven, constitute sex 

discrimination under Title IX. 

Dismissal of allegations involving 

conduct that if proven would not 

constitute sex discrimination under 

Title IX. Proposed § 106.45(d)(1)(iv) 

would permit, but not require, a 

recipient to dismiss a complaint when, 

prior to completing its grievance 

procedures, the recipient determines 

that the conduct alleged would not 

constitute sex discrimination under 

Title IX even if proven. The procedures 

in proposed § 106.45 are designed to 


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elicit sufficient information to enable a 

recipient to make an informed decision 

as to whether sex discrimination 

occurred. Prohibiting a recipient from 

continuing its grievance procedures, as 

the mandatory dismissal provision of 

the current 2020 amendments does, may 

require a recipient to make a hasty 

judgment call at the outset of the 

complaint about whether the 

allegations, if proven, would constitute 

sex discrimination under Title IX. 

However, in the early stages of the 

complaint process, gathering more 

information may help to confirm 

whether the allegations, if true, would 

amount to sex discrimination. For 

instance, in cases of sex-based 

harassment in which one or more of the 

parties may have been incapacitated 

during the alleged incident, a recipient 

may gain additional information to 

establish what occurred through witness 

interviews conducted as part of its 

investigation under its grievance 

procedures. In other cases, a 

complainant may report an allegation of 

sex-based harassment but lack 

information about severity or 

pervasiveness, for example, that a 

recipient might receive through 

evidence gathering under its grievance 

procedures. Requiring dismissal of all 

such complaints would prevent a 

recipient from using its grievance 

procedures to address possible sexbased harassment in its education 

program or activity. The Department 

recognized this in the preamble to the 

2020 amendments when, in response to 

comments, the Department declined to 

permit dismissal of ‘‘frivolous 

complaints’’ because ‘‘the point of the 

§ 106.45 grievance process is to require 

the recipient to gather and objectively 

evaluate relevant evidence before 

reaching conclusions about the merits of 

the allegations.’’ 85 FR 30290. 

The Department proposes revising the 

regulations to ensure it is clear that a 

recipient has the discretion to dismiss 

allegations that, if proven, would 

establish that the alleged conduct was 

not based on sex or did not subject a 

person to sex discrimination in a 

recipient’s education program or 

activity in the United States, as set out 

in proposed § 106.11. Proposed 

§ 106.45(d)(1)(iv) would require a 

recipient to make reasonable efforts to 

clarify the allegations with the 

complainant prior to dismissal. In cases 

of sex-based harassment, this would 

require a recipient to clarify with the 

complainant, when relevant, whether 

the complainant is experiencing a 

hostile environment within the 

recipient’s education program or 

activity in the United States stemming 

from conduct that occurred outside the 

education program or activity or outside 

the United States. Although a recipient 

has discretion under proposed 

§ 106.45(d)(1)(iv) to distinguish between 

allegations that implicate Title IX and 

those that do not, the Department 

reiterates that a recipient must not 

exercise its discretion in a manner that 

predetermines witness credibility or the 

sufficiency of evidence nor would the 

recipient be permitted to dismiss 

complaints to avoid a complicated or 

contested investigation. 

Specific circumstances. The 

Department proposes removing 

language from § 106.45(b)(3)(ii) that 

permits a recipient to dismiss a 

complaint when specific circumstances 

prevent the recipient from gathering 

evidence sufficient to reach a 

determination as to the formal 

complaint or allegations therein. In the 

preamble to the 2020 amendments, the 

Department explained that this 

provision ‘‘is intended to apply 

narrowly to situations where specific 

circumstances prevent the recipient 

from meeting its burden in 

§ 106.45(b)(5)(i) to gather sufficient 

evidence to reach a determination.’’ Id. 

The 2020 amendments did not define 

‘‘specific circumstances,’’ but the 

preamble included examples of the 

types of specific circumstances that 

might warrant dismissal, including 

when the passage of time between 

alleged sex-based harassment and the 

filing of a formal complaint ‘‘prevent a 

recipient from collecting enough 

evidence to reach a determination,’’ id. 

at 30214, and ‘‘[w]hen a formal 

complaint contains the allegations that 

are precisely the same as allegations the 

recipient has already investigated and 

adjudicated,’’ id. at 30214 n.939. 

The Department’s current view is that 

allowing a recipient to dismiss a 

complaint for undefined ‘‘specific 

circumstances’’ is unnecessary in light 

of other, specific dismissal provisions. 

The Department is also concerned that 

this undefined category is potentially so 

broad that it fails to provide adequate 

guidance to recipients about when it 

applies. To address the first example 

from the preamble to the 2020 

amendments, the passage of time 

between alleged sex discrimination and 

when a complaint is made does not 

always mean a recipient will be unable 

to collect enough evidence to reach a 

determination. Under the proposed 

regulations, the ‘‘specific 

circumstances’’ provision would not be 

necessary because a recipient would 

have two other avenues for resolving 

complaints in this circumstance: (1) It 

would be able to dismiss the complaint 

under proposed § 106.45(d)(1)(iv) if the 

allegations in the complaint—once 

clarified with the complainant—could 

not constitute sex discrimination under 

Title IX; or (2) It could conduct an 

investigation, evaluate the available 

evidence it has been able to gather (if 

any) for its persuasiveness, and, if 

appropriate, determine that sex 

discrimination did not occur. As for the 

second example from the preamble to 

the 2020 amendments, if a complainant 

were to make a complaint with only 

specific allegations that the recipient 

had already investigated, the recipient 

could notify the complainant that the 

allegations have already been resolved 

and either (1) decline to open a new 

complaint, or (2) dismiss the complaint 

if it had been opened before the 

recipient realized that the allegations 

duplicate those previously investigated. 

Considering the discussion above, the 

Department’s current view is that 

allowing specific circumstances to serve 

as a basis for dismissal without defining 

what constitutes specific circumstances 

does not adequately apprise a recipient 

of the circumstances that would permit 

dismissal and those circumstances— 

such as a complicated, resource 

intensive investigation—that would not. 

Rather than retain the term ‘‘specific 

circumstances’’ as a vague, catchall 

basis for dismissing complaints, the 

Department proposes eliminating that 

provision and revising § 106.45(b)(3) to 

include several defined bases for 

discretionary dismissal. 

Notification of Dismissal. Proposed 

§ 106.45(d)(2) would clarify that upon 

dismissal, a recipient must promptly 

notify the complainant of the dismissal 

and the basis for the dismissal, and, if 

a respondent has already been notified 

of the allegations, then the recipient 

must also notify the respondent of the 

dismissal and the basis for it promptly 

following notification to the 

complainant, or simultaneously if 

notification is in writing. The 

Department proposes requiring that 

notice of a complaint dismissal be in 

writing only for postsecondary 

recipients for sex-based harassment 

complaints involving a student 

complainant or student respondent (see 

proposed § 106.46(d)(2)), but nothing in 

the proposed regulations would 

preclude other recipients or 

postsecondary recipients in other 

circumstances from providing notice of 

a dismissal to the parties in writing. 

Appeal of Dismissal. In addition, 

proposed § 106.45(d)(3) would 

incorporate current § 106.45(b)(8), 

which grants parties a right to appeal 

dismissals. The provision at proposed 


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§ 106.45(d)(3) would require a recipient 

to notify all parties that a dismissal may 

be appealed; provide any party with an 

opportunity to appeal; notify the other 

party when an appeal is filed; and 

implement appeal procedures equally 

for the parties. This right to appeal 

would further require robust protections 

such as training for appeal 

decisionmakers on how to serve 

impartially, including by avoiding bias, 

conflicts of interest, and prejudgment of 

the facts at issue; strict separation of the 

appeal decisionmakers from those who 

investigated and adjudicated the 

underlying complaint to reinforce 

independence and neutrality; and a 

reasonable, equivalent opportunity for 

the parties to participate in the appeal 

process. Finally, the recipient must 

notify all parties of the result of the 

appeal and the rationale for the result. 

Section 106.45(e) Consolidation of 

Complaints 

Current regulations: Section 

106.45(b)(4) permits a recipient to 

consolidate formal complaints involving 

allegations of sexual harassment against 

more than one respondent, or by more 

than one complainant against one or 

more respondents, or by one party 

against the other party, when the sexual 

harassment allegations arise out of the 

same facts or circumstances. The 

preamble to the 2020 amendments 

clarified that complaints ‘‘by one party 

against the other party’’ refers to 

counter-complaints. 85 FR 30291. 

Section 106.45(b)(4) also states that 

when ‘‘a grievance process involves 

more than one complainant or more 

than one respondent, references in this 

section to the singular ‘party,’ 

‘complainant,’ or ‘respondent’ include 

the plural, as applicable.’’ 

Proposed regulations: The 

Department proposes retaining the 

language of § 106.45(b)(4) as it appears 

in the current regulations, with one 

substantive change and four minor 

changes for consistency with changes in 

other provisions of the proposed 

regulations. The Department also 

proposes moving this provision to 

proposed § 106.45(e). Proposed 

§ 106.45(e) would allow a recipient to 

consolidate complaints of sex 

discrimination against more than one 

respondent, or by more than one 

complainant against one or more 

respondents, or by one party against 

another party (i.e., when a respondent 

seeks to pursue a counter-complaint 

against a complainant), when the 

allegations of sex discrimination arise 

out of the same facts or circumstances. 

If one of the complaints to be 

consolidated is a complaint of sex-based 

harassment involving a student 

complainant or student respondent at a 

postsecondary institution, proposed 

§ 106.45(e) would clarify that the 

grievance procedures for investigating 

and resolving the consolidated 

complaint must comply with the 

requirements of proposed §§ 106.45 and 

106.46. 

In addition, the Department proposes 

replacing references to ‘‘formal 

complaints’’ with ‘‘complaints,’’ and 

replacing references to ‘‘sexual 

harassment’’ with ‘‘sex discrimination’’ 

and ‘‘sex-based harassment,’’ as 

applicable. The Department proposes 

replacing the phrase ‘‘the other party’’ 

with ‘‘another party’’ to reflect that 

certain complaints might involve more 

than two parties. The Department also 

proposes removing the reference to the 

‘‘grievance process.’’ 

Consistent with current § 106.45(b)(4), 

proposed § 106.45(e) would state that 

when more than one complainant or 

more than one respondent is involved, 

references in this section and in 

proposed § 106.46 to the singular form 

of the terms ‘‘party,’’ ‘‘complainant,’’ or 

‘‘respondent’’ include the plural, as 

applicable. 

Reasons: The Department proposes 

maintaining a recipient’s ability to 

consolidate complaints against more 

than one respondent, or by more than 

one complainant against one or more 

respondents, or by one party against 

another party, when the allegations arise 

out of the same facts or circumstances. 

In order to align this provision with 

proposed § 106.45, which addresses 

grievance procedures for any complaint 

of sex discrimination, not just sex-based 

harassment, the Department proposes 

modifying the scope of consolidation 

under proposed § 106.45(e) to allow a 

recipient to consolidate any complaint 

of sex discrimination with another 

complaint of sex discrimination as long 

as the allegations of sex discrimination 

arise out of the same facts or 

circumstances. Current § 106.45(b)(4) 

limits consolidation to complaints of 

sexual harassment and does not address 

whether consolidation is available for 

other forms of sex discrimination such 

as consolidation of complaints 

involving retaliation related to 

complaints of sex-based harassment. 

For example, if a person alleges that 

they were retaliated against for making 

a complaint of sex-based harassment or 

otherwise exercising their rights under 

Title IX related to sex-based harassment, 

the retaliation complaint may involve 

the same parties as a complaint related 

to the underlying sex-based harassment. 

Accordingly, when the sex-based 

harassment and related retaliation 

allegations arise out of the same facts or 

circumstances (and when the 

complaints are against more than one 

respondent, or by more than one 

complainant against one or more 

respondents, or by one party against the 

other party), proposed § 106.45(e) would 

permit a recipient to consolidate these 

complaints. 

Proposed § 106.45(e) would require 

that when one of the complaints to be 

consolidated is a complaint of sex-based 

harassment involving a student 

complainant or student respondent at a 

postsecondary institution, the recipient 

must comply with the requirements of 

proposed §§ 106.45 and 106.46 to 

investigate and resolve the consolidated 

complaint. Proposed § 106.71 likewise 

would require that when a complaint of 

retaliation is consolidated with a 

complaint of sex-based harassment 

involving a student at a postsecondary 

institution, the recipient must comply 

with the grievance procedures in 

proposed §§ 106.45 and § 106.46. As 

explained in the discussion of proposed 

§ 106.46 (Section II.F.2.c), the 

Department’s current view is that the 

additional provisions of proposed 

§ 106.46 would address the specialized 

needs of postsecondary student 

complainants and respondents in 

complaints of sex-based harassment 

and, when applied together with the 

requirements in proposed § 106.45, 

would ensure equitable grievance 

procedures tailored to the circumstances 

of students attending postsecondary 

institutions. For this reason, when a 

consolidated complaint involves a 

complaint of sex-based harassment 

involving a student at a postsecondary 

institution, the Department proposes 

that the postsecondary institution 

would be required to comply with these 

additional requirements. 

In addition to clarifying that 

consolidation is available for any 

complaint of sex discrimination, the 

Department proposes minimal changes 

to proposed § 106.45(e) to align with 

global changes in the proposed 

regulations. 

First, the Department proposes 

replacing ‘‘formal complaints’’ with 

‘‘complaints.’’ As explained in the 

discussion of the proposed definition of 

‘‘complaint’’ (§ 106.2), the Department 

proposes removing the formal complaint 

requirement for purposes of initiating a 

recipient’s obligation to follow its 

grievance procedures for complaints of 

sex discrimination as described in 

proposed §§ 106.45 and 106.46. 

Second, the Department proposes 

replacing the term ‘‘sexual harassment’’ 

with the term ‘‘sex discrimination’’ or 

‘‘sex-based harassment,’’ as applicable. 


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7Under § 99.3 of the regulations implementing 

the FERPA set out at 34 CFR part 99, an ‘‘[e]ligible 

student means a student who has reached 18 years 

of age or is attending an institution of 

postsecondary education,’’ and a ‘‘[p]arent means a 

parent of a student and includes a natural parent, 

a guardian, or an individual acting as a parent in 

the absence of a parent or a guardian.’’ 

As explained in greater detail in the 

discussion of the Overall Considerations 

and Framework (Section II.F.2.a) and 

the proposed definition of ‘‘sex-based 

harassment’’ (§ 106.2), the Department 

proposes these changes to make clear 

that all forms of sex discrimination and 

all forms of harassment based on sex are 

within the scope of the grievance 

procedures described in proposed 

§§ 106.45 and 106.46 to dispel any 

confusion regarding the scope of Title 

IX’s coverage of harassment. 

Third, the Department proposes to 

replace the phrase ‘‘the other party’’ 

with ‘‘another party’’ because 

complaints might involve more than 

two parties. 

Finally, the Department proposes 

removing the reference to the ‘‘grievance 

process’’ because the proposed 

regulations instead use the term 

‘‘grievance procedures’’ to refer to the 

procedures outlined in proposed 

§§ 106.45 and 106.46. 

Section 106.45(f)(1) Investigative 

Burden on Recipients 

Current regulations: Section 

106.45(b)(5)(i) requires a recipient to 

ensure that both the burden of proof and 

the burden of gathering evidence 

sufficient to reach a responsibility 

determination rest on the recipient and 

not on the parties. This provision 

prohibits a recipient from accessing, 

considering, disclosing, or using a 

party’s records that are made or 

maintained by a physician, psychiatrist, 

psychologist, or other recognized 

professional or paraprofessional acting 

in the professional’s or 

paraprofessional’s capacity, or assisting 

in that capacity, and which are made 

and maintained in connection with the 

provision of treatment to the party— 

unless the party provides voluntary, 

written consent to the recipient for use 

in the grievance process. If the party is 

not an ‘‘eligible student,’’ as defined in 

34 CFR 99.3, the recipient must obtain 

the voluntary, written consent of a 

‘‘parent,’’ as defined in 34 CFR 99.3.7

Proposed regulations: Proposed 

§ 106.45(f)(1) would require that the 

recipient—and not the parties—bear the 

burden of conducting an investigation 

that gathers sufficient evidence to 

determine whether sex discrimination 

occurred. 

The Department proposes retaining 

the prohibition in current 

§ 106.45(b)(5)(i) that a recipient may not 

access, consider, disclose, or otherwise 

use a party’s treatment records, but 

would move this language to proposed 

§ 106.45(b)(7) with technical edits. 

Reasons: Proposed § 106.45(f)(1) 

would retain the language in the current 

provision requiring that the recipient— 

and not the parties—bear the burden of 

gathering sufficient evidence to reach a 

determination. The Department 

proposes replacing the phrase 

‘‘determination of responsibility’’ with 

the phrase ‘‘determine whether sex 

discrimination occurred.’’ The 

Department proposes substituting this 

language consistent with the language 

used in other provisions in the proposed 

regulations and to provide clarity about 

the type of determination involved. 

Current § 106.45(b)(5)(i) prohibits a 

recipient from accessing, considering, 

disclosing, or using a party’s treatment 

records, unless the party consents to 

their use. The Department proposes 

moving the full description of this 

prohibition, with minor proposed 

revisions, to proposed § 106.45(b)(7), 

where all three categories of 

impermissible evidence are described in 

full. As outlined by the Department in 

the discussion of proposed 

§ 106.45(b)(7), the Department proposes 

consolidating this prohibition with 

other forms of impermissible evidence 

for ease of reference and to make clear 

to recipients and others that these types 

of evidence would be excluded from the 

general requirement that the recipient 

conduct an objective evaluation of all 

relevant evidence. The Department 

explains the proposed changes to the 

protection of treatment records in 

greater detail in the discussion of 

proposed § 106.45(b)(7). 

Section 106.45(f)(2) Opportunity To 

Present Relevant Witnesses and Other 

Evidence 

Current regulations: Section 

106.45(b)(5)(ii) requires a recipient to 

provide an equal opportunity for the 

parties to present witnesses, including 

fact and expert witnesses, and to present 

other inculpatory and exculpatory 

evidence. 

Proposed regulations: Proposed 

§ 106.45(f)(2) would require a recipient 

to provide an equal opportunity for the 

parties to present relevant fact 

witnesses, as well as other inculpatory 

and exculpatory evidence. 

Reasons: Proposed § 106.45(f)(2) 

would retain the requirement that a 

recipient provide an equal opportunity 

for the parties to present fact witnesses 

and other inculpatory and exculpatory 

evidence, and would clarify that the fact 

witnesses and evidence must be 

‘‘relevant’’ as defined in proposed 

§ 106.2. The topic of expert witnesses in 

grievance procedures resolving 

complaints of sex-based harassment 

involving students at the postsecondary 

level would now appear in proposed 

§ 106.46(e)(4). 

The proposed relevance limitation on 

the opportunity to produce witnesses 

and other evidence is consistent with 

the numerous provisions in the current 

and proposed regulations that limit the 

evidence in the grievance procedures to 

evidence that is ‘‘relevant,’’ as defined 

in proposed § 106.2. The current 

regulations incorporate the concept of 

relevance into several provisions, 

specifically: 

• § 106.45(b)(1)(ii) (objective 

evaluation of all relevant evidence); 

• § 106.45(b)(1)(iii) (training on issues 

of relevance); 

• § 106.45(b)(5)(iii) (no restriction on 

the ability of either party to gather and 

present relevant evidence); 

• § 106.45(b)(5)(vii) (investigative 

report that fairly summarizes relevant 

evidence); 

• § 106.45(b)(6)(i) (ability of the 

party’s advisor to ask all relevant 

questions and follow-up questions, and 

only relevant cross-examination and 

other questions may be asked of a party 

or witness); 

• § 106.45(b)(6)(ii) (opportunity to 

submit written, relevant questions to the 

other party); and 

• § 106.45(b)(6)(i) and (ii) 

(decisionmaker must exclude oral or 

written questions that are not relevant 

and explain any decision to exclude a 

question as not relevant). 

Similarly, in proposed §§ 106.45 and 

106.46, relevance is discussed in: 

• Section 106.45(b)(6) (objective 

evaluation of all relevant evidence); 

• Section 106.45(f)(2) (equal 

opportunity for parties to present 

relevant fact witnesses and other 

evidence); 

• Section 106.45(f)(3) (review of 

evidence gathered to determine 

relevance); 

• Section 106.45(f)(4) (description of 

the relevant evidence); 

• Section 106.45(h)(1) (requirement 

that the decisionmaker evaluate relevant 

evidence for persuasiveness); 

• Section 106.46(c)(2)(iii) (notice of 

the opportunity to receive access to 

relevant evidence or to an investigative 

report that accurately summarizes this 

evidence); 

• Section 106.46(e)(6) (provide either 

equitable access to the relevant evidence 

or to the same written investigative 

report that accurately summarizes this 

evidence); 


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• Section 106.46(f)(1)(i) (credibility 

determinations include allowing the 

decisionmaker to ask relevant questions 

and allowing each party to propose 

relevant questions); 

• Section 106.46(f)(1)(ii) (ability of 

the party’s advisor to ask all relevant 

questions); 

• Section 106.46(f)(3) (decisionmaker 

must determine whether a proposed 

question is relevant and explain any 

decision to exclude a question as not 

relevant); and 

• Section 106.46(h)(1)(iii) (written 

determination must contain an 

evaluation of relevant evidence). 

The Department justified the 

requirement to provide an equal 

opportunity to present witnesses and 

evidence in the preamble to the 2020 

amendments as ‘‘an important 

procedural right and protection for both 

parties’’ that ‘‘will improve the 

reliability and legitimacy of the 

outcomes recipients reach in Title IX 

sexual harassment grievance processes.’’ 

85 FR 30293. In the preamble to the 

2020 amendments, the Department 

described this provision as referring to 

relevant witnesses and evidence. See id. 

at 30283 (stating that information about 

the allegations under investigation 

‘‘allows both parties to meaningfully 

participate during the investigation, for 

example by gathering and presenting 

inculpatory or exculpatory evidence 

(including fact and expert witnesses) 

relevant to each allegation under 

investigation’’). The Department now 

proposes making this explicit in the 

proposed regulations. Placing a 

relevance limitation on witnesses and 

evidence would limit the potential harm 

and unnecessary or wasteful use of 

recipients’ and parties’ resources caused 

by the introduction of irrelevant 

testimony and evidence. 

Under proposed § 106.45(f)(2), a 

recipient would be required to provide 

the parties with the opportunity to 

present fact witnesses and other 

relevant evidence. Separately, under 

proposed § 106.45(f)(3), the recipient 

then would be required to evaluate 

whether the evidence is relevant and 

not otherwise impermissible, consistent 

with proposed §§ 106.2 and 

106.45(b)(7). 

Although current § 106.45(b)(5)(ii) 

requires a recipient to provide an equal 

opportunity for the parties to present 

expert witnesses, the Department 

proposes moving this requirement to 

proposed § 106.46(e)(4) and limiting its 

application to complaints of sex-based 

harassment involving a student 

complainant or a student respondent at 

a postsecondary institution. A recipient 

investigating and resolving a complaint 

under proposed § 106.45 would retain 

the discretion to determine whether to 

allow the parties to present expert 

witnesses. In making this determination, 

a recipient would be required to comply 

with proposed § 106.45(b)(1) and (f). A 

recipient would need to apply the 

determination about whether to allow 

expert witnesses equally to the parties, 

as part of the requirement to provide for 

equitable procedures and for the 

adequate, reliable, and impartial 

investigation and resolution of 

complaints. As explained in greater 

detail in the discussion of proposed 

§ 106.46(e)(4), the use of expert 

witnesses may introduce delays without 

adding a meaningful benefit to the 

recipient’s investigation and resolution 

of the case. 

Section 106.45(f)(3) Review and 

Determination of Relevant Evidence 

Current regulations: None. 

Proposed regulations: Proposed 

§ 106.45(f)(3) would require a recipient 

to review all evidence gathered through 

the investigation and determine which 

evidence is relevant and which 

evidence is impermissible regardless of 

relevance, consistent with proposed 

§§ 106.2 and 106.45(b)(7). 

Reasons: The Department proposes 

clarifying in proposed § 106.45(f)(3) that 

a recipient must review all evidence 

gathered throughout the investigation. 

This provision would require the 

recipient to determine which evidence 

is ‘‘relevant,’’ as defined in proposed 

§ 106.2, and which evidence is 

impermissible regardless of relevance, 

as set out in proposed § 106.45(b)(7). 

The current regulations, at 

§ 106.45(b)(1)(ii), state that a recipient’s 

grievance process must ‘‘[r]equire an 

objective evaluation of all relevant 

evidence.’’ The proposed regulations 

would retain this requirement for the 

recipient’s grievance procedures at 

§ 106.45(b)(6). The Department proposes 

adding § 106.45(f)(3) to make clear that 

when investigating a complaint of sex 

discrimination and throughout the 

process set out in the § 106.45 grievance 

procedures, a recipient must determine 

which evidence gathered through the 

investigation is relevant and which is 

impermissible regardless of relevance, 

consistent with proposed §§ 106.2 and 

106.45(b)(7). 

Section 106.45(f)(4) Description of 

Evidence 

Current regulations: Section 106.8(c) 

requires a recipient to adopt and 

publish grievance procedures for the 

prompt and equitable resolution of 

student and employee complaints 

alleging sex discrimination and a 

grievance process for formal complaints 

of sexual harassment under § 106.45. 

Current § 106.45(b)(5)(vi) provides that 

for formal complaints of sexual 

harassment, a recipient must provide 

the parties with an equal opportunity to 

review and respond to evidence 

obtained during the investigation that is 

directly related to the allegations raised 

in a formal complaint of sexual 

harassment. Current § 106.45(b)(5)(vi) 

contains additional requirements related 

to reviewing evidence, which are 

explained in the discussion of proposed 

§ 106.46(e)(6). 

Proposed regulations: Proposed 

§ 106.45(f)(4) would require a recipient, 

as part of its obligation to conduct an 

adequate, reliable, and impartial 

investigation of sex discrimination 

complaints, to provide each party with 

a description of the evidence that is 

relevant to the allegations of sex 

discrimination and not otherwise 

impermissible. Proposed § 106.45(f)(4) 

would also require a recipient to 

provide the parties with a reasonable 

opportunity to respond to this 

description of evidence. For additional 

requirements regarding the application 

of this provision in grievance 

procedures for sex-based harassment 

complaints involving postsecondary 

students, see the discussion of proposed 

§ 106.46(e)(6). 

Reasons: The current regulations 

require a recipient to provide the parties 

with the opportunity to inspect and 

review the evidence directly related to 

the allegations in response to a formal 

complaint of sexual harassment. The 

current regulations do not expressly 

require a recipient to provide access to 

the evidence or a description of the 

evidence for complaints of sex 

discrimination other than formal 

complaints of sexual harassment. 

Under proposed § 106.45(f)(4), the 

Department proposes requiring a 

recipient to, at minimum, provide the 

parties with a description of the relevant 

evidence as part of the investigation of 

all sex discrimination complaints. A 

recipient may provide this description 

orally or in writing. Proposed 

§ 106.8(f)(1) would require a recipient to 

maintain records documenting the 

process that the recipient conducted 

under the grievance procedures under 

proposed § 106.45, and if applicable 

proposed § 106.46, for each complaint of 

sex discrimination. Accordingly, a 

recipient that provides the parties with 

an oral description of the evidence to 

comply with proposed § 106.45(f)(4) 

would need to maintain a written record 

of this description. Likewise, a recipient 

would need to maintain any written 


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description of the evidence that it 

provides to the parties. 

In addition, under proposed 

§ 106.45(f)(4), the Department proposes 

requiring a recipient to provide the 

parties with a reasonable opportunity to 

respond to the description of the 

evidence as part of the investigation of 

the complaint. 

For complaints of sex-based 

harassment involving a student 

complainant or student respondent at a 

postsecondary institution, the 

postsecondary institution would be 

required to comply with both proposed 

§§ 106.45(f)(4) and 106.46(e)(6). As 

explained in the discussion of proposed 

§ 106.46(e)(6), a postsecondary 

institution would be required to provide 

the parties with equitable access to the 

relevant and not otherwise 

impermissible evidence, or to a written 

investigative report that accurately 

summarizes this evidence. As stated in 

proposed § 106.46(e)(6)(iv), compliance 

with the requirements of proposed 

§ 106.46(e)(6) would also satisfy the 

requirements of proposed § 106.45(f)(4). 

In the preamble to the 2020 

amendments, the Department stated that 

the purpose of current § 106.45(b)(5)(vi) 

is to enable the parties to ‘‘meaningfully 

prepare arguments based on the 

evidence that further each party’s view 

of the case, or present additional 

relevant facts and witnesses that the 

decision-maker should objectively 

evaluate before reaching a 

determination regarding responsibility, 

including the right to contest the 

relevance of evidence.’’ 85 FR 30303. 

The proposed regulations would 

likewise provide the parties with 

sufficient information about the relevant 

evidence to meaningfully prepare 

arguments, contest the relevance of 

evidence, and present additional 

evidence for consideration but would 

also enable recipients to more 

effectively fulfill their obligations under 

Title IX by allowing them to tailor the 

manner in which they present the 

relevant, permissible evidence in light 

of the ages of the parties, severity of the 

alleged conduct, volume of evidence, 

other case-specific factors, and factors 

specific to the recipient’s educational 

environment. 

Numerous stakeholders, in listening 

sessions and the June 2021 Title IX 

Public Hearing, urged the Department to 

provide greater discretion for 

elementary school and secondary school 

recipients. Many stakeholders 

commented that they have found the 

current regulations to be onerous, 

protracted, and unworkable in practice 

for elementary school and secondary 

school recipients. It is the Department’s 

tentative view that proposed 

§ 106.45(f)(4) would streamline the 

investigation process while ensuring 

that parties receive a description of the 

relevant evidence so that they can have 

a meaningful opportunity to be heard in 

response to the evidence under 

consideration by the recipient. The 

Department observes that in Goss, the 

Supreme Court held that students facing 

a temporary suspension are entitled to 

notice of the charges against them and 

‘‘if [the student] denies them, an 

explanation of the evidence the 

authorities have and an opportunity to 

present [the student’s] side of the story.’’ 

419 U.S. at 581. The description of the 

relevant evidence that would be 

required by proposed § 106.45(f)(4) 

would satisfy Goss’s requirement for an 

explanation of the evidence. 

Under proposed § 106.45(i), a 

recipient may adopt additional 

provisions as part of its grievance 

procedures as long as they are applied 

equally to the parties. Accordingly, a 

recipient that would not be required by 

proposed § 106.46(e)(6) to provide 

access to the relevant evidence or to an 

investigative report would nevertheless 

have the discretion to do so. 

Section 106.45(g) Evaluating 

Allegations and Assessing Credibility 

Current regulations: Section 106.8(c) 

requires a recipient to adopt and 

publish grievance procedures for the 

prompt and equitable resolution of 

student and employee complaints 

alleging sex discrimination and a 

grievance process for formal complaints 

of sexual harassment under § 106.45. 

Current § 106.45(b)(6)(i) provides that 

for formal complaints of sexual 

harassment, postsecondary institutions 

must provide for a live hearing during 

which the decisionmaker must permit 

each party’s advisor to ask the other 

party and any witnesses all relevant 

questions and follow-up questions, 

including those challenging credibility. 

Proposed regulations: The 

Department proposes adding 

§ 106.45(g), which would require a 

recipient to provide a process that 

enables the decisionmaker to adequately 

assess the credibility of the parties and 

witnesses to the extent credibility is 

both in dispute and relevant to 

evaluating one or more allegations of 

sex discrimination. For additional 

requirements regarding the application 

of this provision in grievance 

procedures for sex-based harassment 

complaints involving postsecondary 

students, see the discussion of proposed 

§ 106.46(f). 

Reasons: The current regulations 

require that a recipient have a process 

for assessing the credibility of the 

parties and witnesses to formal 

complaints of sexual harassment but do 

not have a similar requirement for other 

complaints of sex discrimination. The 

Department’s current position is that to 

the extent credibility is relevant, as 

discussed in proposed § 106.46(f), a 

process for assessing credibility must be 

included in grievance procedures for 

complaints of other forms of sex 

discrimination as well. 

In view of this, proposed § 106.45(g) 

would require a recipient to have a 

process in place to assess the credibility 

of the parties and witnesses, to the 

extent credibility is in dispute and 

relevant to evaluating one or more 

allegations of sex discrimination. A 

recipient would have the ability to 

structure this process in a way that is 

consistent with its obligation to have an 

equitable process for all parties and 

takes into account the recipient’s 

administrative structure, education 

community, and any applicable State or 

local legal requirements. The 

Department notes the specific 

requirements for assessing credibility in 

proposed § 106.46(f) related to 

questioning by the decisionmaker or 

cross-examination are limited to 

complaints of sex-based harassment 

involving student complainants or 

student respondents at postsecondary 

institutions and would not apply under 

proposed § 106.45(g). However, and 

consistent with the discussion of 

proposed § 106.46(g), if as a part of its 

process for assessing credibility under 

proposed § 106.45(g), a recipient elects 

to include any of these additional 

provisions, including conducting a live 

hearing with both parties present, the 

Department’s current view is that the 

recipient’s grievance procedures would 

not be equitable if either party requested 

to participate in the live hearing in a 

separate room and the recipient denied 

the request. For additional discussion of 

the distinction between provisions 

under proposed §§ 106.45 and 106.46, 

see the discussion of the Framework for 

Grievance Procedures for Complaints of 

Sex Discrimination (Section II.F). Under 

proposed § 106.45(g) a recipient would 

be permitted to incorporate the methods 

for assessing credibility that would be 

required under proposed § 106.46(f) or 

may choose to incorporate other 

methods that the recipient believes are 

better suited to the nature of the 

allegations and the recipient’s 

educational environment as long as they 

aid in fulfilling the recipient’s 

obligation to provide an education 

program or activity free from sex 

discrimination. In situations in which 


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credibility is not in dispute or is not 

relevant to evaluating one or more 

allegations of sex discrimination, a 

recipient would not be required to 

implement its process required under 

proposed § 106.45(g) for assessing 

credibility. 

Section 106.45(h) Determination of 

Whether Sex Discrimination Has 

Occurred 

Current regulations: Section 

106.45(b)(7) states that the 

decisionmaker(s) cannot be the same 

person(s) as the Title IX Coordinator or 

the investigator(s), and that the recipient 

must issue a written determination 

regarding responsibility. This written 

determination must be provided to the 

parties simultaneously. To reach this 

determination, the recipient must apply 

its chosen standard of evidence and the 

written determination must include 

several components: identification of 

the allegations potentially constituting 

sexual harassment; a description of the 

procedural steps taken from the receipt 

of the formal complaint through the 

determination; findings of fact 

supporting the determination; 

conclusions regarding the application of 

the recipient’s code of conduct to the 

facts; a statement of, and rationale for, 

the result as to each allegation, 

including a determination regarding 

responsibility, any disciplinary 

sanctions the recipient imposes on the 

respondent, and whether remedies will 

be provided by the recipient to the 

complainant; and the recipient’s 

procedures and permissible bases for 

the complainant and respondent to 

appeal. 

This provision also states that the 

Title IX Coordinator is responsible for 

the effective implementation of any 

remedies, and that the determination 

regarding responsibility becomes final 

either on the date that the recipient 

provides the parties with the written 

determination of the result of the 

appeal, if an appeal is filed, or if an 

appeal is not filed, the date on which an 

appeal would no longer be considered 

timely. 

Proposed regulations: Under 

proposed § 106.45(h), following an 

investigation as set out in proposed 

§ 106.45(f) and (g), a recipient would 

have to determine whether sex 

discrimination occurred. The 

Department proposes reorganizing the 

requirements from the current 

regulatory provisions §§ 106.45(b)(1)(i), 

106.45(b)(1)(vii), 106.45(b)(2), 

106.45(b)(7), and 106.71(b)(2) into 

proposed § 106.45(h) with strengthened 

protections for the parties and other 

changes so that this provision is 

consistent with the other revisions 

proposed throughout the regulations. 

Proposed § 106.45(h)(1) would require 

a recipient to use the preponderance of 

the evidence standard of proof to 

determine whether sex discrimination 

occurred, unless the recipient uses the 

clear and convincing evidence standard 

of proof in all other comparable 

proceedings, including proceedings 

relating to other discrimination 

complaints. In those situations, 

proposed § 106.45(h)(1) would allow the 

recipient to elect to use the clear and 

convincing evidence standard of proof 

in determining whether sex 

discrimination occurred. Proposed 

§ 106.45(h)(2) would require that a 

recipient notify the parties of the 

outcome of the complaint, including the 

determination of whether sex 

discrimination occurred, and the 

procedures and permissible bases for 

the complainant and respondent to 

appeal, if applicable. Proposed 

§ 106.45(h)(3) would require that, if 

there is a determination that sex 

discrimination occurred, the recipient 

must, as appropriate, require the Title 

IX Coordinator to provide and 

implement remedies to a complainant or 

other person the recipient identifies as 

having their equal access to the 

recipient’s education program or 

activity limited or denied by sex 

discrimination, and require the Title IX 

Coordinator to take other appropriate 

prompt and effective steps to ensure 

that sex discrimination does not 

continue or recur within the recipient’s 

education program or activity. Proposed 

§ 106.45(h)(4) would preserve the 

requirement that the recipient must 

comply with this section, and if 

applicable § 106.46, before the 

imposition of any disciplinary sanctions 

against a respondent. Proposed 

§ 106.45(h)(5) would prohibit a recipient 

from disciplining a party, witness, or 

others participating in the recipient’s 

grievance procedures for making a false 

statement or for engaging in consensual 

sexual conduct based solely on the 

recipient’s determination of whether sex 

discrimination occurred. 

Reasons: The Department’s current 

view is that these provisions should be 

grouped together in the proposed 

regulations because all of them would 

govern a recipient’s determination of 

whether sex discrimination occurred. 

Additional detailed explanation of the 

requirements of proposed § 106.45(h) is 

provided in the discussion of each 

provision, including proposed changes 

from current § 106.45. For additional 

requirements regarding the application 

of proposed § 106.45(h) in grievance 

procedures for sex-based harassment 

complaints involving postsecondary 

students, see the discussion of proposed 

§ 106.46(h). 

Section 106.45(h)(1) Standard of Proof 

Current regulations: Section 

106.45(b)(1)(vii) requires a recipient to 

state whether the standard of evidence 

to be used to determine responsibility is 

the preponderance of the evidence 

standard or the clear and convincing 

evidence standard, apply the same 

standard of evidence for formal 

complaints against students as for 

formal complaints against employees, 

including faculty, and apply the same 

standard of evidence to all formal 

complaints of sexual harassment. 

Proposed regulations: Proposed 

§ 106.45(h)(1) would require a recipient 

to use the preponderance of the 

evidence standard of proof when 

determining whether sex discrimination 

occurred except that the recipient could 

use the clear and convincing evidence 

standard if the recipient uses that 

standard of proof in all other 

comparable proceedings, including 

proceedings relating to other 

discrimination complaints. Under either 

standard of proof, proposed 

§ 106.45(h)(1) would require the 

decisionmaker to evaluate the relevant 

evidence for its persuasiveness. 

Reasons: Standard of proof. The 

Department proposes using the term 

‘‘standard of proof’’ instead of ‘‘standard 

of evidence’’ to clarify that this would 

be the standard a recipient must use to 

determine whether sex discrimination 

occurred. This proposed change would 

also prevent confusion with the 

proposed definition of ‘‘relevant,’’ 

which sets out a standard that must be 

applied to all evidence. The term 

‘‘relevant’’ is explained in greater detail 

in the discussion of the proposed 

definition of ‘‘relevant’’ (§ 106.2) and 

the discussion of proposed 

§ 106.45(b)(6). 

Requiring use of the preponderance of 

the evidence standard of proof unless 

the clear and convincing evidence 

standard is used for comparable 

proceedings. OCR heard from 

stakeholders during the June 2021 Title 

IX Public Hearing and in listening 

sessions regarding what standard of 

proof a recipient should be required to 

use in its Title IX grievance procedures, 

and similar comments were made by 

stakeholders in meetings held in 2022 

under Executive Order 12866, after the 

NPRM was submitted to OMB. Some 

stakeholders said that the 

preponderance of the evidence standard 

ensures fairness to the parties, who have 

an equal stake in the outcome of the 

proceedings, by giving equal weight to 


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accounts of a complainant and 

respondent as to whether sexual 

harassment occurred. Some 

stakeholders made the point that the 

preponderance of the evidence standard 

is the typical standard applied to 

evidence in civil litigation, including in 

cases alleging discrimination under 

Title VII and Title VI, as well as under 

Title IX. Others said that because 

litigation is different from a recipient’s 

administrative process, it is not 

appropriate to require recipients to use 

the same standard as would be applied 

in civil litigation. Some stakeholders 

also pointed to differences between the 

workplace and education contexts, 

while others noted that Title IX applies 

to both employees and students. Some 

stakeholders urged the Department to 

require recipients to use the clear and 

convincing standard, or at a minimum 

require it for sexual assault cases, 

because allegations related to sexual 

misconduct, especially including sexual 

assault, are of a serious nature, findings 

of responsibility may have long-term 

consequences for a respondent, and the 

Title IX grievance process does not 

afford all the same protections to the 

parties that are available in a court 

proceeding. Other stakeholders 

described the framework from the 2020 

amendments—specifically, allowing 

recipients to choose between the 

preponderance of the evidence and the 

clear and convincing evidence 

standards of proof—as creating 

inequities in the grievance process 

because it allows schools to use a 

different standard of proof for sexual 

harassment allegations than it does for 

other misconduct complaints, including 

complaints that allege other types of 

discrimination. 

When the Department promulgated 

the 2020 amendments and declined to 

mandate either the preponderance of the 

evidence standard or the clear and 

convincing evidence standard, the 

Department explained that ‘‘either 

standard of evidence, in combination 

with the rights and protections required 

under § 106.45, creates a consistent, fair 

process under which recipients can 

reach accurate determinations regarding 

responsibility.’’ 85 FR 30381. The 

Department further explained that ‘‘it 

[was] not aware of a Federal appellate 

court holding that the clear and 

convincing evidence standard is 

required to satisfy constitutional due 

process or fundamental fairness in Title 

IX proceedings, and the Department 

[was] not aware of a Federal appellate 

court holding that the preponderance of 

the evidence standard is required under 

Title IX.’’ Id. at 30384. This remains true 

as the Department is not aware of a 

Federal appellate court that has since 

held that a particular standard of proof 

is required to satisfy constitutional due 

process or fundamental fairness in Title 

IX proceedings. 

Under the preponderance of the 

evidence standard of proof, a 

determination that sex discrimination 

occurred can be made only if the 

decisionmaker finds it is more likely 

than not that a respondent engaged in 

sex discrimination. A respondent would 

not be found responsible for sex 

discrimination if the evidence were in 

equipoise, meaning evenly balanced for 

and against a determination of 

responsibility. In such a case, there 

would not be sufficient evidence for the 

decisionmaker to find it more likely 

than not that sex discrimination 

occurred. The Department notes that 

several Federal courts, including 

appellate courts, have held that the 

preponderance of the evidence standard 

is constitutionally sound and sufficient 

to ensure due process to a respondent 

when a school evaluates allegations of 

sexual harassment. See, e.g., Doe v. 

Univ. of Ark.-Fayetteville, 974 F.3d 858, 

868 (8th Cir. 2020) (‘‘[W]e do not think 

a higher standard of proof [than 

preponderance of the evidence] is 

compelled by the Constitution. . . . A 

heightened burden of proof may lessen 

the risk of erroneous deprivations for an 

accused, but it also could frustrate 

legitimate governmental interests by 

increasing the chance that a true victim 

of sexual assault is unable to secure 

redress and a sexual predator is 

permitted to remain on campus.’’); 

Cummins, 662 F. App’x at 449 

(‘‘Allocating the burden of proof 

[equally under the preponderance of the 

evidence standard]—in addition to 

having other procedural mechanisms in 

place that counterbalance the lower 

standard used (e.g., an adequate appeals 

process)—is constitutionally sound and 

does not give rise to a due-process 

violation.’’); Lee v. Univ. of N.M., 449 F. 

Supp. 3d 1071, 1132 (D.N.M. 2020) 

(‘‘[D]ue process permits state education 

institutions . . . to adjudicate sexual 

misconduct disciplinary proceedings 

according to a preponderance-of-theevidence standard.’’); Messeri v. 

DiStefano, 480 F. Supp. 3d 1157, 1167– 

68 (D. Colo. 2020) (‘‘Increasing the 

evidentiary standard would 

undoubtedly make it less likely that the 

University erroneously sanctioned 

Plaintiff or others similarly 

situated. . . . [but] requiring a higher 

evidentiary standard would . . . detract 

from the University’s ‘strong interest in 

the educational process, including 

maintaining a safe learning environment 

for all its students.’ . . . Balancing these 

interests, the Court concludes that it is 

beyond dispute that due process 

currently permits state educational 

institutions to adjudicate disciplinary 

proceedings relating to sexual 

misconduct using a preponderance of 

the evidence standard.’’ (quoting 

Plummer v. Univ. of Hous., 860 F.3d 

767, 773 (5th Cir. 2017))); Doe v. Haas, 

427 F. Supp. 3d 336, 350 (E.D.N.Y. 

2019) (‘‘The Court also rejects the 

contention that due process required 

that the university apply a standard 

more stringent than the preponderance 

of the evidence. Such a standard is the 

accepted standard in the vast majority of 

civil litigations and . . . courts have 

rejected the notion that the safeguards 

applicable to criminal proceedings 

should be applied in the school 

disciplinary context.’’); Marshall v. Ind. 

Univ., 170 F. Supp. 3d 1201, 1206–08 

(S.D. Ind. 2016) (finding that, based on 

the law in Indiana and the Seventh 

Circuit, the university did not violate 

the plaintiff’s due process rights when 

it applied the preponderance of the 

evidence standard at his disciplinary 

hearing before expelling him for sexual 

misconduct). 

Other courts have refused to dismiss 

cases challenging the preponderance of 

the evidence standard or indicated that 

without other procedural safeguards, 

use of the preponderance of the 

evidence standard could violate due 

process. See, e.g., Doe v. Univ. of Miss., 

361 F. Supp. 3d 597, 614 (S.D. Miss. 

2019) (refusing to dismiss a challenge to 

the use of the preponderance of the 

evidence standard, ‘‘[g]iven the 

developing nature of the law, and the 

fact that other portions of this claim 

survive Defendants’ Rule 12(b)(6) 

[motion]’’); Doe v. Univ. of Colo., 255 F. 

Supp. 3d 1064, 1082 n. 13 (D. Colo. 

2017) (finding, on a motion to dismiss, 

that the plaintiff raised ‘‘a viable 

procedural due process claim’’ 

regarding ‘‘whether preponderance of 

the evidence is the proper standard for 

disciplinary investigations’’); Doe v. 

Brandeis Univ., 177 F. Supp. 3d 561, 

607 (D. Mass. 2016) (explaining that the 

use of the preponderance of the 

evidence standard ‘‘is not problematic, 

standing alone; that standard is 

commonly used in civil proceedings, 

even to decide matters of great 

importance,’’ but taking issue with its 

use in its use in this case because it 

‘‘appear[ed] to have been a deliberate 

choice by the university to make cases 

of sexual misconduct easier to prove’’ 

and further noting that this was 

‘‘particularly troublesome in light of the 


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elimination of other basic rights of the 

accused,’’ including the use of a single 

investigator model, no right to an 

effective appeal, and no right to 

examine evidence or witness 

statements). 

The preponderance of the evidence 

standard is commonly used in civil 

litigation, including in cases involving 

alleged discrimination in violation of 

civil rights laws, and the Supreme Court 

has applied a preponderance of the 

evidence standard in litigation 

involving discrimination under Title 

VII. See, e.g., Desert Palace, Inc. v. 

Costa, 539 U.S. 90, 99 (2003) (declining 

to depart from the traditional rule of 

civil litigation, that the preponderance 

of the evidence standard generally 

applies in Title VII cases); Price 

Waterhouse v. Hopkins, 490 U.S. 228, 

252–55 (1989) (approving 

preponderance standard in Title VII sex 

discrimination case) (plurality opinion); 

id. at 260 (White, J., concurring in the 

judgment); id. at 261 (O’Connor, J., 

concurring in the judgment). Further, 

numerous courts have held that the 

preponderance of the evidence standard 

is a constitutionally appropriate burden 

of proof in civil actions seeking to 

impose liability for sexual assault and 

rape in State court. See, e.g., Ashmore 

v. Hilton, 834 So. 2d 1131, 1134 (La. Ct. 

App. 2002) (holding that the 

preponderance of evidence standard is 

sufficient in civil rape case); Jordan v. 

McKenna, 573 So. 2d 1371, 1376 (Miss. 

1990) (holding, in civil action for rape, 

that plaintiff’s burden is ‘‘by a 

preponderance of the evidence’’); Dean 

v. Raplee, 39 NE 952, 954 (N.Y. 1895) 

(finding preponderance of evidence 

sufficient in civil case alleging sexual 

assault); cf. Metz v. Dilley (In re Dilley), 

339 B.R. 1, 7 (B.A.P. 1st Cir. 2006) (‘‘The 

crime of murder and the civil tort of 

wrongful death require proof of different 

elements judged against two different 

standards of proof.’’ (citations omitted)); 

Metro. Life Ins. Co. v. Kelley, 890 F. 

Supp. 746, 749 (N.D. Ill. 1995) (stating 

that although criminal murder must be 

proven beyond reasonable doubt, proof 

of wrongful death by murder in civil 

case must be proven only by 

preponderance of evidence). 

The Department acknowledges that in 

the civil litigation context, there are 

procedural safeguards, such as 

discovery, that help to ensure a fair 

process. In the preamble to the 2020 

amendments, the Department noted that 

‘‘civil litigation generally uses the 

preponderance of the evidence 

standard’’ and that Title IX grievance 

procedures ‘‘are analogous to civil 

litigation in some ways,’’ but the 

Department also stated that the Title IX 

grievance procedures as prescribed 

under the 2020 amendments ‘‘do not 

have the same set of procedures 

available in civil litigation.’’ 85 FR 

30381. Although the procedures may 

not be the same, it is the Department’s 

current view that the proposed 

regulations include a number of key 

safeguards to ensure that a recipient’s 

grievance procedures provide a fair 

process for all involved. For example, 

under the proposed regulations, at both 

elementary schools and secondary 

schools as well as at postsecondary 

institutions, a recipient’s grievance 

procedures would have to, among other 

things: 

• Treat complainants and 

respondents equitably; 

• Prohibit the Title IX Coordinator, 

the investigator, and the decisionmaker 

from having a conflict of interest or bias 

for or against complainants or 

respondents generally or an individual 

complainant or respondent; 

• Provide the recipient the discretion 

to dismiss a complaint in four different 

circumstances, including when the 

allegations, even if true, would not 

constitute sex discrimination under 

Title IX; 

• Require notice to the parties of the 

allegations; 

• State that the grievance procedures 

must be followed before determining 

whether sex discrimination occurred 

and before the imposition of any 

disciplinary sanctions against a 

respondent and that such sanctions may 

be imposed only if it is determined that 

the respondent violated the recipient’s 

prohibition on sex discrimination; 

• Require an objective evaluation of 

all relevant evidence and exclude 

certain types of evidence as 

impermissible; 

• Place the burden on the recipient to 

conduct an investigation that gathers 

sufficient evidence to reach a 

determination; 

• Provide an equal opportunity for 

the parties to present relevant fact 

witnesses and other inculpatory and 

exculpatory evidence; 

• Provide each party with a 

description of the relevant and not 

otherwise impermissible evidence and a 

reasonable opportunity to respond to 

that evidence; 

• Require the decisionmaker to 

adequately assess the credibility of the 

parties and witnesses to the extent 

credibility is in dispute and relevant to 

the allegations; and 

• Include the right of appeal in 

complaint dismissals, and on certain 

bases for students in postsecondary 

institutions in cases of sex-based 

harassment. 

Under the proposed regulations, a 

recipient would be permitted to adopt 

additional provisions as part of its 

grievance procedures, as long as such 

provisions are applied equally to the 

parties. Proposed § 106.45(i). 

The Department’s current view is that 

these procedural safeguards together 

would establish a strong framework for 

a fair process for all. It is also the 

Department’s current view that the 

preponderance of the evidence is the 

standard of proof for complaints of sex 

discrimination that would best promote 

compliance with Title IX because it 

ensures that when a decisionmaker 

determines, based on evidence, that it is 

more likely than not that sex 

discrimination occurred in its program 

or activity, the recipient can take 

sufficient steps to deter the respondent 

from engaging in similar conduct and 

prevent future such violations. Use of a 

preponderance standard also equally 

balances the interests of the parties in 

the outcome of the proceedings by 

giving equal weight to the evidence of 

each party, and it begins proceedings 

without favoring the version of facts 

presented by either side. See, e.g., 

Herman & MacLean v. Huddleston, 459 

U.S. 375, 390 (1983) (‘‘A 

preponderance-of-the-evidence standard 

allows both parties to ‘share the risk of 

error in roughly equal fashion’ ’’ while 

‘‘[a]ny other standard expresses a 

preference for one side’s interests.’’ 

(quoting Addington v. Texas, 421 U.S. 

418, 423 (1979))). The Department 

understands that there can be serious 

consequences for a respondent who is 

found to be responsible for sex-based 

harassment, including sexual assault, 

and for complainants who have been 

subjected to sex-based harassment. The 

Department further understands that all 

parties have an equal interest in the 

outcome of the proceedings. 

In addition, the Department notes 

that, according to recent research, 

preponderance of the evidence is the 

standard of proof already commonly 

used by postsecondary institutions for 

evaluating evidence regarding all 

student conduct allegations, including 

sex-based harassment. See Foundation 

for Individual Rights in Education, 

Spotlight on Due Process 2020–2021, 

https://www.thefire.org/resources/ 

spotlight/due-process-reports/dueprocess-report-2020–2021 (last visited 

June 17, 2022) (analysis of disciplinary 

procedures at 53 top-ranked public and 

private postsecondary institutions 

nationwide). Stakeholders have 

confirmed for the Department that a 

very large majority of elementary 

schools and secondary schools use the 


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preponderance of the evidence standard 

for evaluating evidence as well. 

Nevertheless, the Department 

recognizes that a relatively small 

number of recipients currently apply the 

clear and convincing evidence standard 

of proof to code of conduct violations, 

either for the code as a whole or for a 

subset of alleged violations of the code. 

Under the clear and convincing 

evidence standard of proof, a 

decisionmaker would be required to 

find, based on evidence it has gathered 

consistent with its grievance 

procedures, that it is highly probable 

that allegations of sex-based harassment 

or other sex discrimination are true 

before determining that sex 

discrimination occurred. This is a 

higher standard than proof by a 

preponderance of the evidence, but it 

would not require proof beyond a 

reasonable doubt, as is required in a 

criminal proceeding. The Department 

understands that these recipients have 

determined that the clear and 

convincing evidence standard advances 

certain other important institutional 

interests in a broad array of disciplinary 

cases, not limited to those involving sex 

discrimination. For some of these 

recipients, the use of a clear and 

convincing evidence standard, like the 

use of a preponderance standard, may 

reflect certain values of their 

educational community related to 

student discipline generally. For others, 

there may be historical or other factors 

that have guided their choice of 

standard of proof. The Department also 

notes that if a recipient uses a clear and 

convincing standard to evaluate 

evidence of other potential student 

conduct violations, a requirement that a 

recipient maintain a lower standard of 

proof for evaluating sex discrimination 

allegations may in some circumstances 

give rise to confusion, perceptions of 

unfairness, and resentment. See, e.g., 

Brandeis, 177 F. Supp. 3d at 607 (court 

stated that requiring a preponderance of 

the evidence standard for sexual 

misconduct cases may be seen ‘‘as part 

of an effort to tilt the playing field 

against accused students’’ where an 

institution applies the clear-andconvincing standard for ‘‘virtually all 

other forms of student conduct’’). These 

perceptions may complicate a 

recipient’s administration of its student 

disciplinary codes in general, and in 

particular its grievance procedures for 

complaints of sex discrimination, in 

ways that are counterproductive to 

preventing and responding to sex 

discrimination in the recipient’s 

education program or activity. 

The Department notes that the 

American Law Institute (ALI) 

membership, at its May 2022 Annual 

Meeting, approved the following 

principle as part of its project on 

procedural frameworks for resolving 

campus sexual misconduct cases in 

postsecondary institutions: 

§ 6.8. Standard of Proof 

Colleges and universities should 

adopt the same standard of proof for 

resolving disciplinary claims of sexual 

misconduct by students as they use in 

resolving other comparably serious 

disciplinary complaints against 

students. Standards that require proof 

either by a ‘‘preponderance of the 

evidence’’ or by ‘‘clear and convincing 

evidence’’ can satisfy the requirements 

of procedural due process and fair 

treatment. Whatever standard of proof is 

adopted, decisions that the standard of 

proof is met should always rest on a 

sound evidentiary basis. 

American Law Institute, Black Letter 

of Student Sexual Misconduct: 

Procedural Frameworks for Colleges and 

Universities, Tentative Draft No. 1 (Apr. 

2022) (as approved by the ALI 

membership, May 2022) at 12–13, 

https://www.ali.org/media/filer_public/ 

ce/1c/ce1ca6e7–557b-4f73-bba8- 

ef12d9ae56a2/student-misconduct-td1- 

black-letter.pdf. The Department’s 

proposed regulations would align with 

the ALI position, providing that for sex 

discrimination complaints a recipient 

can use either the preponderance of 

evidence or the clear and convincing 

evidence standard of proof but must not 

use a higher standard of proof for 

evaluating evidence of sex 

discrimination than for other forms of 

discrimination or other comparable 

proceedings. 

The Department’s current view is that 

the ‘‘beyond a reasonable doubt’’ 

standard from criminal law is never 

appropriate for evaluating evidence in a 

recipient’s grievance procedures under 

Title IX. This position is consistent with 

the 2020 amendments, which do not 

permit application of the ‘‘beyond a 

reasonable doubt’’ standard in Title IX 

grievance proceedings. See 85 FR 30051 

n.225. The criminal standard is 

designed specifically as a safeguard for 

proceedings in which an accused person 

may be deprived of their liberty or their 

life by the State or Federal government, 

which are not possible sanctions 

associated with a recipient’s grievance 

procedures. 

Reasonable limitations on recipients’ 

choice of standard of proof for 

allegations of sex discrimination. In 

proposed § 106.45(h)(1), the Department 

proposes allowing recipients to use the 

clear and convincing evidence standard 

of proof for sex discrimination 

allegations only if the recipient uses the 

clear and convincing evidence standard 

of proof in all other comparable 

proceedings, including proceedings 

relating to other discrimination 

complaints. The Department’s current 

view is that a recipient that used a clear 

and convincing evidence standard for 

sex discrimination allegations, but a 

preponderance standard for other 

comparable proceedings, would not 

effectuate Title IX’s nondiscrimination 

mandate because applying a more 

demanding standard of proof for sex 

discrimination allegations than for 

allegations of other types of 

discrimination or other comparable 

proceedings would impose a uniquely 

heavy burden on complainants alleging 

sex discrimination. 

Specifically, in light of recipients’ 

substantially similar legal obligations 

under Federal laws that prohibit various 

types of discrimination, the Department 

believes it is appropriate to require a 

recipient to use a standard of proof for 

allegations of sex discrimination that is 

not higher than the standard of proof for 

allegations of other forms of 

discriminatory conduct that the 

recipient must address consistent with 

its obligations under Federal law. This 

means that a recipient that uses a 

preponderance of the evidence standard 

for evaluating allegations of harassment 

or other discrimination based on race, 

color, national origin disability, or age, 

for example, must use that standard for 

evaluating allegations of sex 

discrimination. Similarly, a recipient 

that uses a clear and convincing 

evidence standard for evaluating 

allegations of other forms of 

discrimination may choose to use that 

standard for evaluating alleged sex 

discrimination as well. Otherwise, a 

singular imposition of a higher standard 

on sex discrimination complaints would 

impermissibly discriminate based on 

sex. 

Removing the requirement to use the 

same standard for complaints against 

students and employees. Proposed 

§ 106.45(h)(1) would also differ from 

current § 106.45(b)(1)(vii) in that it 

would not require a recipient to use the 

same standard of proof for complaints 

against students as it would for 

complaints against employees. The 

Department’s current view, informed by 

the input of stakeholders, is that 

allegations regarding sex discrimination 

by a student are comparable to 

allegations of other types of 

discrimination by a student, and that 

allegations of sex discrimination by an 

employee are comparable to allegations 

of other types of discrimination by an 

employee. Therefore, under the 

proposed regulations a recipient would 


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be able to apply a different standard of 

proof to allegations of student 

misconduct than it would to allegations 

of employee misconduct. 

During the June 2021 Title IX Public 

Hearing and in listening sessions, OCR 

heard from stakeholders that requiring 

recipients to use the same standard of 

proof for complaints against students 

and employees hampered the recipients’ 

flexibility to choose a standard that is 

responsive to the many differences in a 

recipient’s interactions with and 

obligations to its students and its 

employees. After reevaluating the issue 

and taking into account factors relevant 

to a recipient’s distinct, even if 

interrelated, functions and obligations 

as an educator and as an employer, the 

Department proposes removing the 

requirement for recipients to use the 

same standard of proof for sexual 

harassment complaints against students 

and employees. As discussed in the 

preamble to the 2020 amendments, 

recipients may have collective 

bargaining agreements or State laws 

mandating certain standards of proof for 

evaluating employee conduct 

allegations and may want to select a 

different standard of proof for student 

conduct allegations or may have State 

laws requiring them to use a different 

standard of proof for students. Id. at 

30376, 30378. The Department now 

believes that requiring the same 

standard of proof for complaints against 

students and employees is not necessary 

because of the difference in the 

relationships and obligations recipients 

have vis-a`-vis students as compared to 

employees. Requiring the same standard 

of proof to be used for student and 

employee complaints also is not 

necessary to ensure predictability for 

students (another concern raised by 

commenters in 2020, id. at 30375–76), 

because current § 106.45(b)(1)(vii) 

already requires recipients to state 

whether the standard of proof to be used 

to determine whether the respondent 

violated the recipient’s prohibition on 

sexual harassment is the preponderance 

of the evidence standard or the clear 

and convincing evidence standard, and 

proposed § 106.45(h)(1) would preserve 

that requirement for all complaints of 

sex discrimination. Under the current 

regulations, recipients are already 

required and will continue to be 

required under the proposed 

regulations, to make their students and 

employees aware of what standard of 

proof they will apply to such 

allegations. For some recipients, this 

may require a statement that they will 

use one standard of proof for allegations 

of sex discrimination against employees, 

or against a certain subset of employees, 

and a different standard of proof for 

allegations of sex discrimination against 

students. Under proposed 

§ 106.45(h)(1), the use of a clear and 

convincing evidence standard for any 

allegations of sex discrimination would 

be permitted only if the recipient used 

the same standard in all other 

comparable proceedings, including 

proceedings relating to other 

discrimination complaints, involving a 

given category of respondents. 

For example, if a recipient is bound 

by a collective bargaining agreement to 

use the clear and convincing evidence 

standard for allegations that an 

employee engaged in race 

discrimination, as well as all other 

comparable allegations, it could elect to 

use the same standard for sex 

discrimination allegations against an 

employee. If the same recipient uses a 

clear and convincing evidence standard 

for allegations of race discrimination 

and other comparable offenses against a 

student, it could choose to use the clear 

and convincing evidence standard for 

allegations of student sex 

discrimination. However, if that 

recipient uses a preponderance of the 

evidence standard for allegations that a 

student engaged in race discrimination, 

it would have to use the preponderance 

of the evidence standard for allegations 

of student sex discrimination. The 

Department notes that it applies the 

preponderance of the evidence standard 

to evaluate allegations of discrimination 

under all of the laws it enforces and that 

it does so for the equity-related reasons 

explained in the discussion of its 

benefits. 

In light of this discussion, the 

Department invites the public to 

comment on proposed § 106.45(h)(1). In 

particular, to the extent commenters 

take the position that the clear and 

convincing standard would be 

appropriate when used in all other 

comparable proceedings, the 

Department invites comments on steps 

that recipients implementing that 

standard have taken to ensure equitable 

treatment between the parties. The 

Department also invites comments on 

whether it is appropriate to allow a 

recipient to use a different standard of 

proof in employee-on-employee sex 

discrimination complaints, than it uses 

in sex discrimination complaints 

involving a student. Finally, the 

Department invites comments on 

whether it would be appropriate to 

mandate the use of only one standard of 

proof for sex discrimination complaints. 

The decisionmaker must evaluate the 

relevant evidence for its persuasiveness. 

The Department recognizes that 

clarifying that relevant evidence must 

be evaluated for its persuasiveness will 

help inform decisionmakers of the 

appropriate way to evaluate evidence 

under either a preponderance of the 

evidence or clear and convincing 

evidence standard of proof. In 

particular, OCR has received comments 

and heard in listening sessions that this 

type of clarification may be especially 

useful for those without formal legal 

training to confirm that the evaluation 

of evidence involves an assessment of 

the persuasiveness of evidence rather 

than a weighing of the sheer quantity of 

evidence tending to support or disprove 

the allegations. 

Section 106.45(h)(2) Notification of 

Outcome of Complaint 

Current regulations: Section 

106.45(b)(7) states that the recipient 

must issue a written determination 

regarding responsibility that is provided 

to the parties simultaneously. To reach 

this determination, the recipient must 

apply its chosen standard of evidence 

and the written determination must 

include several components: (A) 

identification of the allegations 

potentially constituting sexual 

harassment; (B) a description of the 

procedural steps taken from the receipt 

of the formal complaint through the 

determination; (C) findings of fact 

supporting the determination; (D) 

conclusions regarding the application of 

the recipient’s code of conduct to the 

facts; (E) a statement of, and rationale 

for, the result as to each allegation, 

including a determination regarding 

responsibility, any disciplinary 

sanctions the recipient imposes on the 

respondent, and whether remedies will 

be provided by the recipient to the 

complainant; and (F) the recipient’s 

procedures and permissible bases for 

the complainant and respondent to 

appeal. 

Proposed regulations: Proposed 

§ 106.45(h)(2) would require that a 

recipient notify the parties of the 

outcome of the complaint, including the 

determination of whether sex 

discrimination occurred, and the 

procedures and permissible bases for 

the complainant and respondent to 

appeal, if applicable. Regarding the right 

to appeal, the Department proposes 

maintaining the existing language of 

§ 106.45(b)(1)(viii) but proposes 

clarifying its applicability to all 

complaints of sex discrimination, not 

just complaints of sex-based 

harassment. 

Reasons: Proposed § 106.45(h)(2) 

would preserve the requirement that a 

recipient notify the parties of the 

outcome of the complaint, but the 


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notification would not have to be in 

writing. The Department reconsidered 

the need to adopt a framework for the 

grievance procedures that a recipient 

must follow when responding to all 

complaints of sex discrimination in 

light of the recipient’s obligations under 

Title IX to operate its education program 

or activity free from sex discrimination, 

not just sexual harassment. In light of 

that restructuring, all of the current 

requirements for sexual harassment 

complaints would not necessarily be 

appropriate or necessary for all sex 

discrimination complaints, or in all 

settings. The Department explained in 

the preamble to the 2020 amendments 

that the nature of the protections needed 

‘‘in the ‘particular situation’ of 

elementary and secondary schools may 

differ from protections necessitated by 

the ‘particular situation’ of 

postsecondary institutions.’’ 85 FR 

30052. The Department maintains this 

view and also believes that that the 

specific procedures necessary to afford 

prompt and equitable grievance 

procedures that are designed to ensure 

a fair and reliable process for sex 

discrimination complaints will differ 

based on the nature of the allegations 

(e.g., sex-based harassment or other 

forms of sex discrimination such as 

prohibited different treatment or 

pregnancy discrimination), and the 

unique characteristics of the individuals 

involved (e.g., age, level of 

independence, relationship to the 

recipient). 

The Department also takes the 

tentative position that the provisions in 

proposed § 106.46, which contain 

requirements related to written 

communications with the parties, may 

not be necessary to ensure an equitable 

process for other types of sex 

discrimination complaints, and could 

have the unintended consequence of 

impeding effective enforcement of Title 

IX by delaying a recipient’s prompt 

response to other forms of possible sex 

discrimination. The Department 

recognizes the requirements in current 

§ 106.45 (many of which appear in 

proposed § 106.46) were applied in the 

2020 amendments only to sexual 

harassment complaints, which may 

require greater participation by a 

complainant and respondent than other 

complaints of sex discrimination. With 

regard to the written determination 

requirement, the Department stated in 

the preamble to the 2020 amendments 

that requiring a written determination in 

sexual harassment complaints served 

the important function of ensuring the 

parties know the reasons for the 

outcome of the grievance procedure and 

help ensure independent judgment and 

decisionmaking free from bias. Id. at 

30389. Although the Department 

continues to prioritize independent 

judgment and bias-free decisionmaking, 

it proposes that the written 

determination requirement would not 

be necessary in the broader context of 

all sex discrimination complaints and, 

in some educational environments, may 

function as an impediment to 

addressing sex discrimination in a 

recipient’s program or activity. 

It is the Department’s current view 

that the requirement of proposed 

§ 106.45(h)(2) that the recipient notify 

the parties of the outcome of the 

complaint is sufficient to fulfill Title 

IX’s nondiscrimination requirement, 

coupled with the requirement that a 

recipient maintain a record of the 

outcome, as explained in greater detail 

in the discussion of proposed 

§ 106.8(f)(1). Previously, the Department 

asserted that the burden created by the 

current written determination 

requirement was outweighed by the 

benefits of a reliable, consistent, 

transparent process for students in 

elementary and secondary schools, as 

well as students at postsecondary 

institutions, irrespective of the size of 

the institution’s student body. Id. The 

Department has since reconsidered 

whether that burden is necessary, 

particularly for all sex discrimination 

complaints in the elementary school 

and secondary school setting. In the 

June 2021 Title IX Public Hearing, OCR 

heard from elementary school and 

secondary school recipients that the 

current regulations were not developed 

with their interests in mind, and that 

elementary school and secondary school 

recipients do not have the infrastructure 

to perform all the current requirements. 

Specifically, the written determination 

of responsibility was highlighted as one 

of the requirements that increases the 

length of time for an elementary school 

or secondary school recipient to resolve 

a complaint and makes the overall 

procedures more difficult. 

It is the Department’s tentative view 

that transparency and consistency 

would be achieved with the other 

proposed changes to the regulations, 

and that the burden of requiring all 

recipients to provide a written 

determination for all types of 

complaints may actually impede 

effective fulfillment of Title IX’s 

nondiscrimination guarantee and 

should therefore not be required here. 

The Department also notes additional 

requirements in proposed § 106.45 that 

would ensure transparency and 

consistency in a recipient’s grievance 

procedures, including requirements of 

notice of the allegations to the parties 

(proposed § 106.45(c)); equitable 

treatment of complainants and 

respondents (proposed § 106.45(b)(1)); 

prohibition on conflict of interest or bias 

for or against complainants or 

respondents (proposed § 106.45(b)(2)); 

presumption of non-responsibility 

(proposed § 106.45(b)(3)); objective 

evaluation of all relevant, and not 

otherwise impermissible, evidence 

(proposed § 106.45(b)(6) and (7)); 

allowing the parties an equal 

opportunity to present relevant 

witnesses and other inculpatory and 

exculpatory evidence (proposed 

§ 106.45(f)(2)); providing each party 

with a description of the evidence that 

is relevant and not otherwise 

impermissible (proposed § 106.45(f)(4)); 

requiring adherence to these grievance 

procedures before imposition of any 

disciplinary sanctions (proposed 

§ 106.45(h)(4)); and the right to appeal 

complaint dismissals (proposed 

§ 106.45(d)(3)). In light of these 

protections, which together create the 

framework for an equitable process, the 

Department’s current view is that a 

requirement of written communication 

of the outcome in all cases is not 

necessary to ensure effective 

implementation of Title IX. The 

Department recognizes that some 

recipients may determine that, for their 

educational environment, providing 

outcome determinations in writing for 

some or all types of complaints will be 

appropriate, particularly when students 

have the skills and maturity to 

understand the recipient’s written 

communication or where such 

communications may be useful in 

providing outcome information to 

parents, guardians, or legally authorized 

representatives of students in 

elementary school or secondary school. 

In addition, the Department 

recognizes that some recipients may 

provide detailed information to parties 

regarding the facts determined through 

an investigation while others may state 

only whether sex discrimination 

occurred under Title IX. Proposed 

§ 106.45(h)(2) provides a recipient with 

flexibility to choose what information to 

share while setting a baseline 

requirement that recipients inform any 

parties of the outcome of the 

investigation and a determination as to 

whether sex discrimination occurred 

under Title IX. The purpose of this 

proposed change is to ensure 

consistency so that all parties to sex 

discrimination complaints, rather than 

only those involved in sex-based 

harassment complaints, receive 

information about the outcome and 


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determination. In addition, learning 

about the outcome of complaints and 

the recipient’s determination would 

provide parties with confirmation that 

the grievance procedures were 

completed; without that confirmation, 

parties could be left unsure about 

whether the grievance procedures were 

completed or whether the recipient 

determined the alleged conduct to be 

sex discrimination. 

Proposed § 106.45(h)(2) would also 

require a recipient to notify the parties 

of the procedures and permissible bases 

of appeal, if applicable. The proposed 

regulations would not require a 

recipient to provide a right to appeal, 

other than for complaint dismissals or 

in grievance procedures for a complaint 

of sex-based harassment involving a 

student at a postsecondary institution, 

but would require that information 

about appeals be provided, if any are 

available. It is the Department’s current 

view that, for complaints of sex 

discrimination, other than complaint 

dismissals or complaints of sex-based 

harassment involving a student at a 

postsecondary institution, a recipient 

should have the discretion to decide 

whether a right to appeal a 

determination would be appropriate for 

a given type of complaint. For example, 

in some elementary school and 

secondary school settings involving 

complaints related to less serious 

conduct, the delay associated with an 

appeal could impair a recipient’s ability 

to manage the school environment 

while sex-based harassment may be 

ongoing. In addition, a recipient’s 

relationships with its employees vary 

significantly, ranging from temporary 

and at-will employees to those who are 

tenured. A right to an appeal may not 

be necessary or appropriate in all 

instances for a recipient to resolve, 

promptly and equitably, as required by 

Title IX, every complaint of employeeon-employee sex-based harassment. The 

same is true for complaints involving 

third parties. Further, with respect to 

employees, as explained in the 

discussion of the Overall Considerations 

and Framework (Section II.F.2.a), the 

Department recognizes that recipients 

have Federal law obligations to 

employees under Title VII as well as 

Title IX, and may also have obligations 

under other State or local laws, which 

may require processes that are 

specifically adapted to these types of 

complaints, and may or may not include 

a right to appeal. 

The Department notes that, whatever 

a recipient decides, it must not be 

arbitrary in the exercise of its discretion 

to offer a right to appeal. That is, a 

recipient must treat similar complaints 

similarly, consistent with its obligations 

under Title IX and other applicable 

Federal nondiscrimination laws. If a 

recipient offers appeals, proposed 

§§ 106.45(d) and 106.46(i) would 

provide guidelines for how to provide 

those appeals. In particular, as 

explained in the discussion of proposed 

§ 106.45(d)(3), any decisionmaker for an 

appeal must be trained on how to serve 

impartially, avoiding bias, conflicts of 

interest, and prejudgment of the facts. 

Section 106.45(h)(3) Remedies to a 

Complainant and Other Appropriate 

Prompt and Effective Steps 

Current regulations: Section 

106.45(b)(7) states that the Title IX 

Coordinator is responsible for the 

effective implementation of any 

remedies. 

Proposed regulations: Proposed 

§ 106.45(h)(3) would require that, if 

there is a determination that sex 

discrimination occurred, the recipient 

must, as appropriate, require the Title 

IX Coordinator to provide and 

implement remedies to a complainant or 

other person the recipient identifies as 

having their equal access to the 

recipient’s education program or 

activity limited or denied by sex 

discrimination, and require the Title IX 

Coordinator to take other appropriate 

prompt and effective steps to ensure 

that sex discrimination does not 

continue or recur within the recipient’s 

education program or activity. 

Reasons: The requirement in 

proposed § 106.45(h)(3) to provide and 

implement remedies to a complainant or 

other person the recipient identifies, as 

appropriate, is similar to the language in 

current § 106.45(b)(1)(i), but would 

apply to all forms of sex discrimination, 

not just sexual harassment, consistent 

with other proposed revisions to the 

regulations governing grievance 

procedures. In addition, proposed 

§ 106.45(h)(3) would require a recipient 

to provide and implement those 

remedies as appropriate; the use of ‘‘as 

appropriate’’ accounts for the fact that 

in some situations, even when sex 

discrimination has occurred, it will not 

be appropriate to provide remedies to a 

complainant. For example, after 

investigating a student complaint 

alleging that a school district failed to 

adequately accommodate the athletic 

interests and abilities of girls, a school 

district determines that sex 

discrimination occurred. If the 

complainant since graduated, there may 

be no appropriate individual remedies 

for the recipient to provide to the 

complainant, in which case, the 

recipient’s action to address the sex 

discrimination instead would include 

remedies as appropriate for current 

students who experienced the same sex 

discrimination and other remedies as 

necessary and appropriate to bring the 

athletic program into compliance with 

Title IX. Or, as another example, a 

recipient that provides a remedy to a 

complainant who experienced sex-based 

harassment might also need to provide 

training or other educational 

programming to address the educational 

environment for other participants in 

that environment who, while not 

harassed, may have witnessed the sexbased harassment. This additional step 

of providing training or other 

programming could help make clear 

what conduct is sex discrimination, and 

therefore mitigate the risk for future 

harassment if the harassment currently 

at issue is not addressed and recurs. 

Section 106.45(h)(4) Comply With 

This Section Before Imposition of 

Disciplinary Sanctions 

Current regulations: Section 

106.45(b)(1)(i) requires a recipient to 

follow a grievance process that complies 

with § 106.45 before the imposition of 

any disciplinary sanctions or other 

actions that are not ‘‘supportive 

measures’’ as defined in § 106.30, 

against a respondent. 

Proposed regulations: Proposed 

§ 106.45(h)(4) would require a recipient 

to follow grievance procedures that 

comply with proposed § 106.45, and, if 

applicable, proposed § 106.46, before 

the imposition of any disciplinary 

sanctions against a respondent. 

Reasons: Proposed § 106.45(h)(4) 

would maintain the same general 

requirement as in current 

§ 106.45(b)(1)(i) that a recipient follow 

grievance procedures that comply with 

proposed § 106.45, and if applicable 

proposed § 106.46, before imposing 

disciplinary sanctions on a respondent. 

As explained in the discussion of 

proposed § 106.45(b)(1), the Department 

proposes moving this requirement from 

the requirement to treat complainants 

promptly and equitably so as not to 

imply that the only action a recipient 

must take to treat a respondent 

equitably is to follow grievance 

procedures that comply with proposed 

§ 106.45, and if applicable proposed 

§ 106.46, before the imposition of any 

disciplinary sanctions. Proposed 

§ 106.45(h)(4) would also apply to all 

complaints of sex discrimination, not 

just sexual harassment. This change is 

necessary to be consistent with other 

proposed changes to the regulations as 

explained in the discussion of the 

Overall Considerations and Framework 

(Section II.F.2.a). 


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Section 106.45(h)(5) Prohibition on 

Discipline Based Solely on 

Determination 

Current regulations: Section 

106.71(b)(2) provides that when a 

recipient charges an individual with a 

code of conduct violation for making a 

materially false statement in bad faith 

during a Title IX grievance proceeding, 

such an action is not retaliatory as long 

as the recipient did not base its 

determination that a person made a 

materially false statement in bad faith 

solely on the outcome of the grievance 

proceeding. 

Proposed regulations: Proposed 

§ 106.45(h)(5) would prohibit a recipient 

from initiating a disciplinary process 

against a party, witness, or other 

participant in a recipient’s grievance 

procedures under proposed § 106.45, 

and if applicable proposed § 106.46, for 

making a false statement or for engaging 

in consensual sexual conduct based 

solely on the recipient’s determination 

of whether sex discrimination occurred. 

This proposed provision incorporates 

the relevant content of current 

§ 106.71(b)(2), which the Department 

would fully remove. 

Reasons: In order to provide an 

education program or activity free from 

sex discrimination, a recipient must 

implement grievance procedures under 

proposed § 106.45, and if applicable 

proposed § 106.46, in a way that does 

not impede parties, witnesses, and other 

participants from providing information 

to the recipient regarding sex 

discrimination that may have occurred 

in the recipient’s program or activity. 

Allowing parties, witnesses, and other 

participants to participate fully in the 

recipient’s grievance procedures is also 

integral to ensuring that a recipient’s 

efforts to address sex discrimination are 

equitable. Proposed § 106.45(h)(5) 

would further these goals by providing 

parties, witnesses, and other 

participants in a recipient’s grievance 

procedures with assurance that the 

recipient cannot discipline them for 

making a false statement or engaging in 

consensual sexual activity based solely 

on the determination of whether sex 

discrimination occurred. 

The Department proposes changing 

the word ‘‘person’’ in current 

§ 106.71(b)(2) to the phrase ‘‘parties, 

witnesses, or other participants’’ to 

make clear that this provision protects 

any form of participation in the 

recipient’s grievance procedures under 

proposed § 106.45, and if applicable 

proposed § 106.46. In light of the 

Department’s concern about chilling 

participation in these grievance 

procedures, the Department believes 

that providing protection for all 

participants would best ensures a 

thorough and equitable process. 

The Department also notes that these 

prohibitions would apply regardless of 

whether the recipient intended use the 

disciplinary process to retaliate against 

a person. If a recipient were to engage 

in this type of discipline for the purpose 

of retaliating against a party, witness, or 

other participant in its grievance 

procedures, it would be in violation of 

both proposed §§ 106.45(h)(5) and 

106.71(a). 

False statements. As explained in 

greater detail in the discussion of 

proposed § 106.71, the Department 

proposes removing current 

§ 106.71(b)(2). Current § 106.71(b)(2) 

provides that it is not retaliatory to 

charge an individual with a code of 

conduct violation for making a 

materially false statement if the 

determination that the statement was 

materially false was not based solely on 

the recipient’s determination of 

responsibility in the underlying 

grievance proceeding. The Department 

proposes explicitly stating in proposed 

§ 106.45(h)(5), which applies to all 

grievance procedures under Title IX, 

that a recipient must not discipline a 

person for making a false statement 

based solely on a determination from 

the recipient’s grievance procedures that 

the person’s allegations, arguments, or 

other statements were not supported by 

the evidence. 

In the preamble to the 2020 

amendments, the Department explained 

that it added current § 106.71(b)(2) in 

response to comments stating that 

‘‘lying should not be protected and that 

any retaliation provision should 

explicitly exclude from protection those 

who make false allegations or false 

statements during a grievance process.’’ 

85 FR 30537. During the June 2021 Title 

IX Public Hearing and in listening 

sessions with stakeholders, OCR 

received feedback expressing confusion 

generated by the wording of current 

§ 106.71(b)(2). Stakeholders requested 

that the Department clarify that it would 

be retaliatory to discipline a student for 

making a false report of sex 

discrimination solely because the 

recipient found in favor of the 

respondent. 

The Department acknowledges that 

the wording of this prohibition in 

current § 106.71(b)(2) as an exception to 

a general rule permitting discipline for 

false statements might have caused 

confusion. The Department is also 

concerned that current § 106.71(a) may 

have a chilling effect on a person’s 

participation in a recipient’s grievance 

procedures for fear of being disciplined. 

As a result, the Department proposes 

replacing the current provision with 

proposed § 106.45(h)(5), which would 

make clear that the recipient must not 

initiate its disciplinary process against a 

person for making a false statement 

based solely on a determination in the 

recipient’s grievance procedures that 

sex discrimination did not occur 

including, for example, when the 

recipient found the person’s statements 

were not supported by the evidence. 

The Department also proposes 

removing the term ‘‘materially’’ from 

current § 106.71(b)(2) and referring 

simply to ‘‘false’’ statements. The 

Department now believes that allowing 

a recipient to discipline a person for 

making any false statement based solely 

on its determination in the underlying 

complaint of sex discrimination could 

chill participation in the grievance 

procedures. This proposed change 

would not only address concerns about 

adequate protection for those 

participating in the recipient’s grievance 

procedures but also would maintain the 

recipient’s discretion to discipline those 

who make false statements based on 

evidence other than the outcome of its 

grievance procedures. 

Consensual sexual activity. Proposed 

§ 106.45(h)(5) would also clarify that a 

recipient must not discipline a person 

for having engaged in consensual sexual 

activity when that determination is 

based solely on the findings of the 

recipient’s grievance procedures. As 

noted in the discussion of proposed 

§ 106.44(b), the Department recognizes 

that discipline for collateral conduct 

violations, including consensual sexual 

conduct, may create a barrier to 

participation in the recipient’s grievance 

procedures. 

The Department received comments 

as part of the June 2021 Title IX Public 

Hearing requesting a broader 

prohibition on discipline for collateral 

conduct violations such as consensual 

sexual conduct to ensure that the 

regulations address a broader range of 

situations in which a complainant may 

fear that discipline for disclosing 

information about sexual conduct in a 

sex-based harassment grievance 

procedure. In addition, the Department 

notes that this concern regarding 

discipline for consensual sexual 

conduct has been raised by plaintiffs in 

Title IX litigation as well as in OCR’s 

enforcement practice. See, e.g., Doe v. 

Gwinnett Cnty. Sch. Dist., Civil Action 

No. 1:18–CV–05278–SCJ, 2021 WL 

4531082, at *6 (N.D. Ga. Sept. 21, 2021); 

OCR Case No. 06–11–1487, Henderson 

Indep. Sch. Dist. (June 14, 2012) (letter 

of finding), https://www2.ed.gov/about/ 


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offices/list/ocr/docs/investigations/ 

more/06111487-a.pdf. 

The Department proposes responding 

to the concerns raised by stakeholders 

by including in proposed § 106.45(h)(5) 

a prohibition on disciplining a party, 

witness, or other participant for 

engaging in consensual sexual conduct 

when the recipient’s only basis for the 

discipline is a determination that sex 

discrimination did not occur. The 

Department would refer specifically to 

consensual sexual conduct to make 

clear that an individual’s disclosure of 

additional sex discrimination, including 

sex-based harassment, during the 

grievance procedures would not be 

entitled to the protection of proposed 

§ 106.45(h)(5) to implement Title IX’s 

guarantee. By providing protection from 

collateral discipline for consensual 

sexual conduct in proposed 

§ 106.45(h)(5), the proposed regulations 

would remove this potential barrier to 

information sharing in the grievance 

procedures and, in turn, further promote 

a fair process in which parties, 

witnesses, and participants are not 

discouraged from fully and accurately 

relating necessary facts. 

Section 106.45(i) Additional 

Provisions 

Current regulations: Section 106.45(b) 

requires all recipients to use a grievance 

process for formal complaints of sexual 

harassment that complies with all of the 

requirements of § 106.45. It also states 

that any provisions, rules, or practices 

other than those required by this section 

that a recipient adopts as part of its 

grievance process for handling ‘‘formal 

complaints of sexual harassment’’ as 

defined in § 106.30 must apply equally 

to both parties. 

Proposed regulations: The 

Department proposes moving the 

language in the current regulations 

regarding additional provisions of a 

recipient’s grievance procedures to 

proposed § 106.45(i) and applying this 

requirement to grievance procedures for 

all forms of sex discrimination, not only 

sexual harassment. The Department also 

proposes removing the language from 

current § 106.45(b) requiring all 

recipients to use a grievance process for 

formal complaints of sexual harassment 

that complies with all of the 

requirements of § 106.45 to account for 

other proposed changes to the 

regulations regarding the grievance 

procedure requirements. Proposed 

§ 106.45(i) would state that if a recipient 

adopts additional provisions as part of 

its grievance procedures for complaints 

of sex discrimination, including sexbased harassment, these additional 

provisions must apply equally to the 

parties. 

Reasons: The proposed revisions are 

necessary to make the regulatory text 

consistent with the Department’s 

proposed changes to apply the grievance 

procedures described in proposed 

§ 106.45 to all forms of sex 

discrimination, including sex-based 

harassment, as explained in the 

discussion of the Framework for 

Grievance Procedures for Complaints of 

Sex Discrimination (Section II.F). The 

proposed revisions are also consistent 

with the statements that the Department 

made describing this provision in the 

preamble to the 2020 amendments and 

do not represent a shift in position. 

The Department maintains its 

position, as stated in the preamble to the 

2020 amendments, that under Title IX, 

‘‘recipients [have] discretion to adopt 

rules and practices not required under 

§ 106.45.’’ 85 FR 30209. The Department 

also continues to hold the view that 

Title IX requires that any ‘‘grievance 

[procedure] rules a recipient chooses to 

adopt (that are not already required 

under § 106.45) must treat the parties 

equally.’’ Id. at 30242. 

The Department similarly affirms that 

under its proposed regulations, a 

recipient would be required to apply 

this provision to its handling of each sex 

discrimination complaint and that a 

recipient’s equal treatment obligation 

would not necessarily require identical 

treatment of the parties to a complaint 

of sex discrimination. As the 

Department explained in the preamble 

to the 2020 amendments, ‘‘[w]here 

parties are given ‘equal’ opportunity, for 

example, both parties must be treated 

the same,’’ but this does not mean that 

they must be given the exact same 

practice or accommodation. Id. at 

30186. The Department provided two 

examples in the preamble to the 2020 

amendments that help to illustrate this 

principle: ‘‘The equal opportunity for 

both parties to receive a disability 

accommodation does not mean that both 

parties must receive a disability 

accommodation or that they must 

receive the same disability 

accommodation. Similarly, both parties 

may not need [an interpreter], and a 

recipient need not provide [an 

interpreter] for a party who does not 

need one, even if it provides [an 

interpreter] for the party who needs 

one.’’ Id. (emphasis omitted) 

Likewise, consistent with the 

principle that equal treatment does not 

require identical treatment, a recipient’s 

grievance procedures may recognize 

that employee parties may have distinct 

rights in a collective bargaining 

agreement with the recipient or by other 

means that are not applicable to parties 

who are not employees. This is 

recognized in current § 106.6(f), which 

states that ‘‘[n]othing in this part may be 

read in derogation of any individual’s 

rights under title VII of the Civil Rights 

Act of 1964, 42 U.S.C. 2000e et seq., or 

any regulations promulgated 

thereunder.’’ Similarly, student parties 

may have rights or benefits associated 

with their student status. 

Section 106.45(j) Informal Resolution 

Current regulations: Current 

§ 106.45(b)(2)(A) requires a recipient, 

upon receipt of a formal complaint, to 

provide written notice of any informal 

resolution process to the parties who are 

known. Current § 106.45(b)(9)(i) also 

requires a recipient to provide a written 

notice to the parties disclosing the 

allegations; the requirements of the 

informal resolution process, including 

the circumstances under which it 

precludes the parties from resuming a 

formal complaint arising from the same 

allegations; that at any time prior to 

agreeing to a resolution, any party has 

the right to withdraw from the informal 

resolution process and resume the 

grievance process with respect to the 

formal complaint; and any 

consequences resulting from 

participating in the informal resolution 

process, including the records that will 

be maintained or could be shared. 

Proposed regulations: Proposed 

§ 106.45(j) would state that, in lieu of 

resolving a complaint through the 

recipient’s grievance procedures, the 

parties may instead elect to participate 

in an informal resolution process under 

§ 106.44(k) if provided by the recipient 

consistent with that paragraph. 

Proposed § 106.44(f)(2)(ii) would require 

the Title IX Coordinator to notify the 

parties to any complaint of sex 

discrimination of any informal 

resolution process, if available and 

appropriate. For additional 

requirements regarding the application 

of this provision in grievance 

procedures for sex-based harassment 

complaints involving postsecondary 

students, see the discussion of proposed 

§ 106.46(j). 

Reasons: The Department’s current 

view is that a recipient should continue 

to retain the discretion to offer the 

parties to a sex discrimination 

complaint an alternative option for 

resolving the complaint, subject to the 

process protections described in the 

proposed regulations. As explained in 

greater detail in the discussion of 

proposed § 106.44(k), the Department 

recognized in the preamble to the 2020 

amendments that informal resolution 

‘‘empowers the parties by offering 


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alternative conflict resolution systems 

that may serve their unique needs and 

provides greater flexibility to recipients 

in serving their educational 

communities.’’ 85 FR 30403. An 

informal resolution process is not a factfinding, investigative process to reach a 

determination about whether sex 

discrimination occurred as set out in the 

grievance procedures under proposed 

§ 106.45, and if applicable proposed 

§ 106.46; instead, it is an alternative 

avenue through which parties may agree 

to a resolution of the complaint. The 

Department’s view is that a recipient is 

in the best position to determine 

whether an informal resolution process 

would be a potential good fit for the 

facts and circumstances of a particular 

complaint, subject to the specific 

parameters described in the proposed 

regulation. The Department notes that, 

whatever a recipient decides, a recipient 

must treat similar complaints similarly, 

consistent with its obligations under 

Title IX and other applicable Federal 

nondiscrimination laws. 

Section 106.45(k) Range of Supportive 

Measures and Disciplinary Sanctions 

and Remedies 

Current regulations: Section 

106.45(b)(1)(vi) requires a recipient’s 

grievance process to describe the range 

of possible disciplinary sanctions and 

remedies or list the possible 

disciplinary sanctions and remedies that 

a recipient may implement following 

any determination of responsibility. 

Section 106.45(b)(1)(ix) requires a 

recipient to include a description of the 

range of supportive measures available 

to a complainant and respondent. 

Proposed regulations: The 

Department proposes maintaining the 

requirement in the current regulations 

that a recipient include a description of 

the range of supportive measures 

available to a complainant and 

respondent but moving this requirement 

to proposed § 106.45(k)(1). The 

Department continues to recognize that 

the provision of supportive measures is 

fact-specific. Therefore, the Department 

emphasizes that proposed 

§ 106.45(k)(1), like current 

§ 106.45(b)(1)(ix), would require only 

that a recipient describe the range of 

supportive measures available ‘‘rather 

than a list.’’ 85 FR 30277. This 

requirement would ensure that a 

recipient continues to have the ability to 

offer a variety of supportive measures 

while continuing to require 

transparency for the recipient’s 

educational community. The 

Department also proposes maintaining 

the requirement in the current 

regulations that a description of the 

range of supportive measures is required 

only for complaints alleging sex-based 

harassment. Although proposed 

§ 106.44(g) would require a Title IX 

Coordinator to offer supportive 

measures upon being notified of any 

conduct that may constitute sex 

discrimination under Title IX, proposed 

§ 106.45(k)(1), as with current 

§ 106.45(b)(1)(ix), would require a 

recipient to describe the range of 

supportive measures available to a 

complainant and respondent only for 

grievance procedures addressing a 

complaint alleging sex-based 

harassment. 

In proposed § 106.45(k)(2), the 

Department would also require a 

recipient’s grievance procedures to 

either describe the range of possible 

disciplinary sanctions and remedies or 

list the possible disciplinary sanctions 

and remedies that a recipient may 

impose after it determines that sexbased harassment occurred. 

The Department proposes clarifying 

that the phrase ‘‘any determination of 

responsibility’’ for which sanctions and 

remedies must be described or listed— 

as appears in current § 106.45(b)(1)(vi)— 

refers to a determination that sex-based 

harassment occurred. The Department 

also proposes removing one of the two 

references to possible disciplinary 

sanctions and remedies from this 

provision. As with the range of 

supportive measures, the Department 

proposes maintaining the requirement 

in the current regulations that a 

description of the range, or list, of 

possible disciplinary sanctions and 

remedies that a recipient may impose is 

necessary only with respect to 

complaints alleging sex-based 

harassment. Although the proposed 

definitions of ‘‘disciplinary sanctions’’ 

and ‘‘remedies’’ in proposed § 106.2 

provides that disciplinary sanctions and 

remedies are available following a 

determination that sex discrimination 

occurred, proposed § 106.45(k)(2) would 

require a recipient to describe the range, 

or list, of possible disciplinary sanctions 

and remedies only for grievance 

procedures addressing a complaint 

alleging sex-based harassment. 

Reasons: In proposed § 106.45(k)(2), 

the Department proposes replacing the 

reference to ‘‘any determination of 

responsibility’’ with ‘‘a determination 

that sex-based harassment occurred.’’ 

The Department proposes substituting 

this language to align with the language 

used in other provisions in the proposed 

regulations. 

In addition, the Department proposes 

removing one of the references to 

‘‘possible disciplinary sanctions and 

remedies’’ as a non-substantive edit to 

streamline the provision and avoid 

unnecessary duplication of this phrase 

in the current regulatory text. 

Although proposed § 106.44(g) and 

the proposed definitions of 

‘‘disciplinary sanctions’’ and 

‘‘remedies’’ in proposed § 106.2 provide 

that supportive measures, disciplinary 

sanctions, and remedies may be utilized 

in response to any form of sex 

discrimination, not just sex-based 

harassment, the Department’s current 

view is that the requirement to provide 

a range, or list, of such measures as part 

of a recipient’s grievance procedures 

should be limited to complaints alleging 

sex-based harassment, consistent with 

the current regulations. Considering the 

wide range of conduct that may 

constitute alleged sex discrimination, 

the Department submits that it would be 

unduly burdensome to a recipient to 

attempt to anticipate all forms of alleged 

sex discrimination that may arise and 

the range of supportive measures and 

range, or list, of disciplinary sanctions 

and remedies that may be responsive to 

all sex discrimination. For this reason, 

the Department proposes continuing to 

limit this aspect of the grievance 

procedures to complaints of alleged sexbased harassment. 

H. Grievance Procedures for the Prompt 

and Equitable Resolution of Complaints 

of Sex-Based Harassment Involving a 

Student Complainant or Student 

Respondent at Postsecondary 

Institutions 

Section 106.46 Grievance Procedures 

for the Prompt and Equitable Resolution 

of Complaints of Sex-Based Harassment 

Involving a Student Complainant or 

Student Respondent at Postsecondary 

Institutions 

Current regulations: None. 

Proposed regulations: Proposed 

§ 106.46(a) would state that a 

postsecondary institution’s prompt and 

equitable written grievance procedures 

for complaints of sex-based harassment 

involving a student complainant or 

student respondent must include 

provisions that incorporate the 

requirements of proposed §§ 106.45 and 

106.46. Proposed § 106.46(b) would 

provide factors for a recipient to apply 

where a complainant or respondent is 

both a student and employee to 

determine whether the requirements of 

proposed § 106.46 would apply. 

Proposed § 106.46 would also include 

provisions addressing the following 

aspects of a postsecondary institution’s 

grievance procedures for postsecondary 

students: written notice of allegations 

and information about the recipient’s 

grievance procedures (proposed 


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§ 106.46(c)); dismissal of a complaint 

(proposed § 106.46(d)); complaint 

investigation (proposed § 106.46(e)); 

evaluating allegations and assessing 

credibility (proposed § 106.46(f)); live 

hearing procedures (proposed 

§ 106.46(g)); written determination 

(proposed § 106.46(h)); appeals 

(proposed § 106.46(i)); and informal 

resolution (proposed § 106.46(j)). 

Additional detailed explanation of the 

requirements of proposed § 106.46 is 

provided in the discussion of each 

subsection, including proposed changes 

from current § 106.45. 

Section 106.46(a) General 

Current regulations: None. 

Proposed regulations: The 

Department proposes adding 

§ 106.46(a), which would provide that a 

postsecondary institution’s written 

grievance procedures for complaints of 

sex-based harassment involving a 

student complainant or student 

respondent must include provisions that 

incorporate the requirements of 

proposed § 106.45 and this section. 

Reasons: As explained in the 

discussion of the Framework for 

Grievance Procedures for Complaints of 

Sex Discrimination (Section II.F), the 

Department proposes a comprehensive 

framework for grievance procedures that 

builds upon the grievance procedures 

required under the 2020 amendments, 

with certain modifications to address 

the concerns noted above. Under the 

Department’s proposed grievance 

procedures framework, proposed 

§ 106.45 would contain requirements for 

written grievance procedures that would 

apply to all complaints of sex 

discrimination at any recipient and a 

new proposed § 106.46 would contain 

additional requirements that would 

apply only to complaints of sex-based 

harassment involving a student 

complainant or student respondent at 

postsecondary institutions. 

The Department’s current position is 

that the requirements in proposed 

§ 106.46, which are incorporated from 

current § 106.45 with modifications as 

explained in the discussion of proposed 

§ 106.46 (Section II.F.2.c) and in the 

discussion of each provision below, 

would afford protections that are 

appropriate to the age, maturity, 

independence, needs, and context of 

students in postsecondary institutions. 

Section 106.46(b) Student-Employees 

Current regulations: None 

Proposed regulations: The 

Department proposes adding 

§ 106.46(b), which would provide that 

when a complainant or respondent is 

both a student and an employee of a 

postsecondary institution, the 

postsecondary institution must make a 

fact-specific inquiry to determine 

whether the requirements of proposed 

§ 106.46 apply. In making this 

determination, a postsecondary 

institution must, at a minimum, 

consider whether the party’s primary 

relationship with the postsecondary 

institution is to receive an education 

and whether the alleged sex-based 

harassment occurred while the party 

was performing employment-related 

work. 

Reasons: The Department recognizes 

that a person may be both a student and 

an employee of a postsecondary 

institution. When a postsecondary 

institution has initiated its grievance 

procedures in response to a complaint 

of sex-based harassment and a party is 

both a student and an employee, the 

postsecondary institution must 

determine whether that party is subject 

to the additional grievance procedures 

specified under proposed § 106.46 for 

investigating and resolving allegations 

of sex-based harassment involving 

postsecondary students. Determining 

whether a party is a student or 

employee is a fact-specific inquiry. 

To guide a postsecondary institution 

in making this determination, proposed 

§ 106.46(b) would set out two factors 

that a postsecondary institution must 

consider, at a minimum: whether the 

person’s primary relationship with the 

postsecondary institution is to receive 

an education and whether the alleged 

sex-based harassment occurred while 

the person was performing employmentrelated work. The Department’s 

tentative view is that a postsecondary 

institution must consider these factors 

because they appropriately focus the 

inquiry on the primary relationship 

between the complainant or respondent 

and the postsecondary institution (e.g., 

whether the complainant or respondent 

is a full-time employee who enrolls in 

a class outside of work hours or a 

student who works part-time for the 

postsecondary institution as part of the 

student’s overall financial aid package) 

and the student-employee’s role or 

activities when the alleged sex-based 

harassment occurred (e.g., whether they 

were in their work environment or 

elsewhere fulfilling work-related 

responsibilities, in class as a student, in 

the cafeteria with friends, or in an 

extracurricular activity). Nothing in 

proposed § 106.46(b) would prohibit a 

postsecondary institution from 

considering additional factors in 

determining whether a party is 

primarily a student or an employee. 

Section 106.46(c) Written Notice of 

Allegations 

Current regulations: Upon receipt of a 

formal complaint of sexual harassment, 

current § 106.45(b)(2) requires a 

recipient to provide parties who are 

known to the recipient with written 

notice of the allegations of sexual 

harassment and of the recipient’s 

grievance process, including any 

informal resolution process. Sufficient 

detail must be provided in this notice, 

including the conduct allegedly 

constituting prohibited sexual 

harassment, the identities of the parties 

involved in the alleged incident, and the 

date and location of the alleged 

incident. 

In addition, current § 106.45(b)(2) 

requires that the notice inform the 

parties that they may have an advisor of 

their choice, who may be an attorney, 

that they have a right to inspect and 

review certain evidence, and 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. Section 106.45(b)(2) 

also provides that if, in the course of an 

investigation, the recipient decides to 

investigate allegations about the 

complainant or respondent that are not 

included in the initial notice, the 

recipient must provide notice of the 

additional allegations to the parties 

whose identities are known. 

Proposed regulations: The 

Department proposes maintaining the 

core components of this provision while 

offering several important clarifications 

for postsecondary institutions when 

notifying the parties of allegations of 

sex-based harassment in a complaint 

involving a student complainant or a 

student respondent. 

Because the proposed regulations do 

not include a formal complaint 

requirement, the proposed regulations 

would clarify that written notice of 

allegations must be provided upon 

initiation of the postsecondary 

institution’s sex-based harassment 

grievance procedures as described in 

proposed § 106.46. Proposed 

§ 106.46(c)(3) would include an 

allowance for a reasonable extension of 

time to provide this written notice of 

allegations to the extent a postsecondary 

institution has legitimate concerns for a 

party’s safety or the safety of any other 

person as a result of the notification. 

Proposed § 106.46(c) would also 

revise the required statements that a 

postsecondary institution must include 

in the written notice of allegations. 

Under proposed § 106.46(c), a 

postsecondary institution would be 


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required to include the information 

required under proposed § 106.45(c), 

including a statement that retaliation is 

prohibited. In addition, a postsecondary 

institution would still be required to 

include a statement that the respondent 

is presumed not responsible for the 

alleged conduct, as in current 

§ 106.45(b)(2). Proposed § 106.46(c) 

would also retain the requirement that 

a postsecondary institution notify the 

parties of the right to review evidence, 

but the Department proposes revising 

the description of this right to reflect 

proposed changes to this right in 

proposed § 106.46(e)(6). 

Reasons: It is the Department’s 

tentative view that preserving the 

written notice requirement in the 

existing regulations, together with 

several proposed changes discussed 

here, would maintain and strengthen 

the regulations’ protections for student 

complainants and student respondents 

involved in a postsecondary 

institution’s resolution of a complaint of 

sex-based harassment. Although 

proposed § 106.45(c) would not apply 

the same written requirements to other 

recipients or to postsecondary 

institutions in other circumstances, the 

Department’s proposed changes would 

better align the notice requirements 

with the purpose of Title IX and the 

other proposed changes to the 

regulations, as described below. 

The Department proposes that the 

notice of allegations should be in 

writing and include more detail in sexbased harassment cases involving 

postsecondary students. As explained in 

the discussion of proposed § 106.46 

(Section II.F.2.c), students at 

postsecondary institutions are distinct 

from both elementary and secondary 

students and from school employees in 

that postsecondary students are largely 

young adults who may be expected to 

self-advocate in grievance procedures 

and lack protections available to many 

employees under Title VII, collective 

bargaining agreements, and tenure. The 

Department therefore proposes that a 

written notice of allegations is 

particularly important to support 

postsecondary students’ ability to 

understand the requirements of Title IX 

grievance procedures and to effectively 

advocate for themselves. 

The Department proposes removing 

the requirement that a recipient’s 

grievance procedures must be initiated 

by a formal complaint. As stated in the 

discussion of the proposed definition of 

‘‘complaint’’ (§ 106.2), it is the 

Department’s tentative view, and one 

expressed by stakeholders during the 

June 2021 Title IX Public Hearing, that 

this formal complaint requirement 

unduly narrows the scope of a 

recipient’s responsibility not to 

discriminate based on sex in its 

education program or activity. 

Consequently, the Department proposes 

revising the definition of ‘‘complaint’’ to 

clarify that a complaint would be the 

mechanism by which an individual may 

request that a recipient initiate its 

grievance procedures in response to all 

forms of sex discrimination, and would 

permit individuals to make complaints 

in writing or orally to ensure that a 

recipient receives all complaints that 

would alert it to possible sex 

discrimination in violation of Title IX in 

its education program or activity. 

Physical and emotional safety. The 

2020 amendments did not address the 

timing needed for proper notice of the 

allegations to the respondent other than 

that notice be provided with sufficient 

time for the respondent to prepare a 

response before any initial interview. It 

is the Department’s continuing view 

that the individual circumstances of 

each complaint may be relevant to the 

timing required for notifying the 

respondent of the allegations. 85 FR 

30283, 30288. In particular, the 

Department recognizes that there may 

be situations in which a postsecondary 

institution may reasonably delay notice 

to another party to address legitimate 

concerns about the safety of either party 

or others, and the proposed notice 

requirement provides a postsecondary 

institution with discretion to account 

for these safety concerns. This need may 

arise particularly in circumstances in 

which a complainant has made 

allegations of dating violence or 

domestic violence and the safety of the 

complainant or others may be at 

heightened risk after notice is provided 

to the respondent. 

Proposed § 106.46(c)(3) would specify 

that legitimate concerns for safety must 

be based on individualized 

considerations and not on mere 

speculation or stereotypes and also 

would clarify that any delay must be 

reasonable. Further, regardless of 

whether the timeframe is extended, the 

proposed provision would continue to 

require that a party receive notice ‘‘with 

sufficient time . . . to prepare a 

response before any initial interview.’’ 

Revisions to required statements. In 

proposed § 106.46(c), the Department 

proposes revising the required 

additional information that must be 

included in the written notice of 

allegations. The Department’s tentative 

view is that a postsecondary institution 

should still be required to include a 

statement that the respondent will be 

presumed not responsible for the 

alleged conduct until the conclusion of 

the procedures. The Department also 

proposes retaining in proposed 

§ 106.46(c) the requirement in current 

§ 106.45(b)(2)(i)(B) that the written 

notice 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. In the preamble to 

the 2020 amendments, the Department 

stated ‘‘that both parties deserve to 

know that their school, college, or 

university has such a provision that 

could subject either party to potential 

school discipline as a result of 

participation in the Title IX grievance 

process.’’ Id. at 30279. This proposed 

provision dovetails with the 

Department’s recognition of the 

importance of truthfulness for those 

providing information in grievance 

procedures in proposed §§ 106.45(g) and 

106.46(f), which would require a 

postsecondary institution to provide a 

process that adequately assesses the 

credibility of the parties and witnesses, 

to the extent credibility is in dispute 

and relevant to evaluating one or more 

of the allegations of sex discrimination. 

OCR received feedback from the June 

2021 Title IX Public Hearing indicating 

that requiring recipients to include 

disciplinary provisions related to false 

statements in a notification about 

allegations of sex-based harassment 

risks creating the misimpression that the 

recipient has reason to believe that the 

complainant may consider providing 

knowingly false statements, or that 

individuals are especially likely to 

knowingly make false statements in sexbased harassment matters. The 

Department recognizes this concern and 

seeks to clarify that the inclusion of 

such a statement is not meant to imply 

in any way that any party to a 

recipient’s grievance procedures would 

be presumed to be making a false 

statement. Nor is it intended to suggest 

that it would be a false statement if a 

report or allegation of misconduct does 

not align in all respects with the 

statement of other witnesses or parties, 

or that it would be a false statement if 

a respondent or witness disagrees with 

the allegations, or an allegation contains 

unintentional inaccuracies. As generally 

understood, a false statement is one that 

a person makes knowing that the 

statement is false or that the person 

makes in bad faith. A good faith mistake 

would generally not constitute a false 

statement. Further, proposed 

§ 106.45(h)(5) would, like the current 

regulations, specifically prohibit a 

recipient from disciplining a party, 

witness, or other participant in a 


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recipient’s grievance procedures for 

making a false statement based solely on 

the recipient’s determination of whether 

sex discrimination occurred. 

As described in the discussion of 

proposed § 106.45(c), the Department 

also proposes requiring a postsecondary 

institution to include a statement in the 

notice of allegations that retaliation is 

prohibited. OCR received feedback from 

student complainants in the June 2021 

Title IX Public Hearing and in listening 

sessions describing retaliation by 

respondents and respondents’ friends 

that they experienced after coming 

forward with information about sexbased harassment. The proposed change 

would serve the purpose of alerting the 

parties early in the grievance 

procedures, at the first time they receive 

notice from the postsecondary 

institution regarding each other’s 

identity and the specific allegations at 

issue, that retaliation based on 

participation in the grievance 

procedures is prohibited for parties and 

others. 

Proposed § 106.46(c), by incorporating 

the requirements of proposed 

§ 106.45(c), would preserve the 

requirement in the current regulations 

that a recipient provide written notice of 

additional allegations to the parties if, in 

the course of an investigation, the 

postsecondary institution decides to 

investigate additional allegations about 

the respondent that were not included 

in the initial notice. The reasons for 

maintaining and clarifying this 

requirement are explained in more 

detail in the discussion of proposed 

§ 106.45(c). 

Section 106.46(d) Dismissal of a 

Complaint 

Current regulations: Current 

§ 106.45(b)(3)(ii) states that a recipient 

may dismiss a formal complaint or any 

allegations therein if at any time during 

the investigation or hearing a 

complainant notifies the Title IX 

Coordinator in writing that the 

complainant would like to withdraw the 

formal complaint or any allegations 

therein. Current § 106.45(b)(3)(iii) states 

that upon a dismissal required or 

permitted pursuant to § 106.45(b)(3)(i) 

or (ii), the recipient must promptly send 

written notice of the dismissal and 

reason(s) therefor simultaneously to the 

parties. 

Proposed regulations: Proposed 

§ 106.46(d)(1) would provide that when 

a postsecondary institution dismisses a 

complaint of sex-based harassment 

involving a student party under any of 

the bases in proposed § 106.45(d)(1), it 

must provide the parties with 

simultaneous written notice of the 

dismissal and the basis for the 

dismissal. Proposed § 106.46(d)(2) 

would provide that when a 

postsecondary institution dismisses a 

sex-based harassment complaint 

involving a student complainant or a 

student respondent based on the 

complainant’s voluntary withdrawal of 

the complaint or allegations under 

proposed § 106.45(d)(1)(iii), a 

postsecondary institution must obtain 

the complainant’s withdrawal in 

writing. 

Reasons: Proposed § 106.46(d)(1) 

would maintain the requirement that a 

postsecondary institution, upon 

dismissing a sex-based harassment 

complaint involving a student 

complainant or student respondent, 

notify the parties simultaneously in 

writing of the dismissal and the basis for 

the dismissal. Although proposed 

§ 106.45(d) would not apply the same 

written requirements to other recipients 

or to postsecondary institutions in other 

circumstances, the Department’s 

tentative position is that it is important 

to require a postsecondary institution to 

notify the parties simultaneously in 

writing of the dismissal of a complaint 

or allegations, whether by electronic 

mail or other means. As noted in 

discussion of proposed § 106.46 

(Section II.F.2.c), the Department’s 

tentative view is that requiring in 

proposed § 106.46(d)(1) that notice of a 

dismissal be in writing is appropriate in 

light of the particular circumstances of 

postsecondary students and the 

requirement that a recipient not 

discriminate based on sex in its 

education program or activity, including 

in its handling of discrimination 

complaints. 

In addition, proposed § 106.46(d)(2) 

would maintain the requirement from 

the 2020 amendments that a 

complainant’s request for voluntary 

dismissal of a complaint or complaint 

allegations must be made in writing to 

the Title IX Coordinator, for 

postsecondary student complainants 

alleging sex-based harassment. The 

Department understands ‘‘written 

request’’ to include a request delivered 

to the Title IX Coordinator in person, by 

mail, by electronic mail, and by any 

additional method designated by the 

recipient, including an online portal 

that indicates that the complainant is 

the person requesting withdrawal of the 

allegations. This is consistent with 

current § 106.30, which requires a 

‘‘formal complaint’’ to be in writing and 

filed with the Title IX Coordinator. See 

85 FR 30137 (‘‘We have further revised 

this provision [§ 106.30] to state that 

‘document filed by a complainant’ 

means a document or electronic 

submission (such as by electronic mail 

or through an online portal provided for 

this purpose by the recipient) that . . . 

indicates that the complainant is the 

person filing the formal complaint.’’). 

As noted in the discussion of proposed 

§ 106.46 (Section II.F.2.c), the 

Department’s tentative view is that it is 

appropriate in light of the particular 

circumstances of postsecondary 

students and Title IX’s 

nondiscrimination guarantee to preserve 

the requirements that postsecondary 

institutions communicate with parties 

in writing about withdrawals of 

allegations or complaints or about 

dismissals related to sex-based 

harassment involving a student party. 

Section 106.46(e) Complaint 

Investigation 

Current regulations: Section 

106.45(b)(5) sets out seven requirements 

that apply during the investigation of a 

formal complaint and throughout the 

sexual harassment grievance process. 

Proposed regulations: Proposed 

§ 106.46(e) would set out six 

requirements that apply—in addition to 

the requirements set out in proposed 

§ 106.45—in a postsecondary 

institution’s grievance procedures for 

sex-based harassment complaints 

involving a student complainant or a 

student respondent. 

Reasons: The proposed regulations 

would retain many of the specific 

requirements for grievance procedures 

that appear in the existing regulations at 

§ 106.45(b)(5), although the proposed 

regulations would also move, modify, or 

add certain requirements. The 

Department proposes making minor 

adjustments to the introductory 

language to be consistent with changes 

made throughout the regulations, 

including by clarifying that the 

proposed requirements in § 106.46 

would cover sex-based harassment 

rather than only sexual harassment and 

would apply only to complaints of sexbased harassment involving a student 

complainant or student respondent at a 

postsecondary institution. In addition, 

the Department proposes to refer to the 

proceedings described in § 106.46 as 

‘‘grievance procedures’’ rather than 

‘‘grievance process,’’ and would remove 

the reference to a ‘‘formal complaint.’’ 

Section 106.46(e)(1) Notice in 

Advance of Meetings 

Current regulations: Section 

106.45(b)(5)(v) requires a recipient to 

provide written notice of the date, time, 

location, participants, and purpose of all 

hearings, investigative interviews, or 

other meetings. A recipient must 

provide this notice to any party whose 


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participation is invited or expected, and 

it must provide this notice with 

sufficient time for the party to prepare 

to participate. 

Proposed regulations: Proposed 

§ 106.46(e)(1) would require a 

postsecondary institution to provide 

written notice of the date, time, 

location, participants, and purpose of all 

meetings, investigative interviews, and 

hearings. A postsecondary institution 

would be required to provide this notice 

to any party whose participation is 

invited or expected at a meeting, 

interview, or hearing with sufficient 

time for the party to prepare to 

participate. 

Reasons: The Department proposes 

moving the provision requiring written 

notice of any meetings from current 

§ 106.45(b)(5)(v) to proposed 

§ 106.46(e)(1) without any substantive 

changes to the text, other than the 

overall change in applicability only to 

complaints of sex-based harassment 

involving a student complainant or 

respondent at a postsecondary 

institution. 

In the preamble to the 2020 

amendments, the Department stated that 

‘‘the burden associated with providing 

this notice [required by current 

§ 106.45(b)(5)(v)] is outweighed by the 

due process protections such notice 

provides.’’ 85 FR 30299. The 

Department further noted that the 

parties should receive notice with 

sufficient time to prepare for meetings, 

interviews, or hearings ‘‘[b]ecause the 

stakes are high for both parties in a 

grievance process.’’ Id. As explained in 

the discussion of proposed § 106.46 

(Section II.F.2.c), the Department 

recognizes the need to tailor the 

requirements for grievance procedures 

to the unique context of sex-based 

harassment complaints involving 

postsecondary student parties. In light 

of the age, maturity, and independence 

of postsecondary students, the 

Department currently views the detailed 

requirements related to advance notice 

of meetings, interviews, or hearings as 

necessary to provide a postsecondary 

student with time to prepare and 

possibly to consult others for help with 

preparation. The Department recognizes 

that many postsecondary students are 

only newly independent and typically 

have less experience with self-advocacy 

than parents, guardians, or other legally 

authorized representatives of students 

in elementary school and secondary 

school settings or than employees, who 

may also have additional rights under 

Title VII, collective bargaining 

agreements, or other employmentrelated agreements with the recipient. 

Finally, the Department recognizes that 

postsecondary institutions are 

separately required by the Clery Act to 

provide ‘‘timely notice of meetings’’ 

where one or more parties may be 

present in proceedings based on an 

allegation of dating violence, domestic 

violence, sexual assault, or stalking. See 

34 CFR 668.46(k)(3)(i)(B)(2). 

Section 106.46(e)(2) Role of Advisor 

Current regulations: Section 

106.45(b)(5)(iv) requires a recipient to 

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. This subsection states that the 

advisor of choice may be, but is not 

required to be, an attorney. In addition, 

current § 106.45(b)(5)(iv) states that a 

recipient cannot limit the choice or 

presence of the advisor for either party 

in any meeting or grievance proceeding; 

however, the recipient may establish 

restrictions regarding the extent to 

which the advisor may participate, as 

long as the restrictions apply equally to 

both parties. 

Proposed regulations: Proposed 

§ 106.46(e)(2) would require a 

postsecondary institution to provide the 

parties with the same opportunities to 

be accompanied to any meeting or 

proceeding by the advisor of their 

choice. This provision, like proposed 

§ 106.46(c)(2)(ii) and (f)(1), would 

provide that the advisor may be, but is 

not required to be, an attorney. The 

proposed regulations would prohibit a 

postsecondary institution from limiting 

the choice or presence of the advisor in 

any meeting or grievance proceeding; 

however, the proposed regulations 

would permit the postsecondary 

institution to establish restrictions 

regarding the extent to which the 

advisor may participate in the grievance 

procedures, as long as the restrictions 

apply equally to the parties. 

Reasons: Current § 106.45(b)(5)(iv) 

addresses the requirements for the 

parties’ advisors, as well as the 

requirements for who may attend 

proceedings. The proposed regulations 

would retain both sets of requirements 

but divide them into separate 

provisions—proposed § 106.46(e)(2) and 

(3)—for clarity. 

With respect to advisors, current 

§ 106.45(b)(5)(iv) requires a recipient to 

provide parties with the opportunity to 

be accompanied to any meeting or 

proceeding by the advisor of their 

choice. The current provision also notes 

that the advisor may be, but is not 

required to be, an attorney. In addition, 

the current provision states that the 

recipient must not limit the choice or 

presence of the advisor for either the 

complainant or the respondent; 

however, the recipient may limit the 

extent to which the advisor may 

participate, as long as the restrictions 

apply equally to both parties. The 

Department proposes to retain these 

requirements in proposed § 106.46(e)(2). 

The Department proposes two nonsubstantive changes: removing the word 

‘‘either’’ because it is unnecessary and 

replacing the term ‘‘both parties’’ with 

‘‘the parties’’ since some proceedings 

may involve more than two parties. 

As explained in the discussion of the 

Framework for Grievance Procedures for 

Complaints of Sex Discrimination 

(Section II.F), students at postsecondary 

institutions are, generally, differently 

situated from other participants in a 

recipient’s grievance procedures in a 

way that the Department currently 

believes warrants the proposed right to 

an advisor under § 106.46(e)(2) when 

they are a party in a recipient’s 

grievance procedures for complaints of 

sex-based harassment. For example, 

unlike elementary school and secondary 

school students, postsecondary students 

generally would not be entitled to a 

parent, guardian, or other authorized 

legal representative at meetings or 

proceedings, yet they may also not have 

sufficient experience with self-advocacy 

or maturity to participate in meetings or 

proceedings without the assistance of an 

advisor. And while employees may have 

access to a union representative or other 

employee-specific resources, 

postsecondary students do not generally 

have comparable resources available to 

them. 

In addition, postsecondary students 

who are participating in grievance 

procedures for complaints of sex-based 

harassment are differently situated from 

postsecondary students who are 

participating in grievance procedures 

for complaints of sex discrimination 

other than sex-based harassment. Unlike 

many complaints of sex discrimination, 

complaints of sex-based harassment 

often involve multiple parties whose 

conduct and credibility are subjected to 

scrutiny. Investigations of complaints of 

sex-based harassment are more likely to 

involve sensitive material and to 

engender disputes over what evidence is 

relevant and what evidence is 

impermissible. Sex-based harassment 

complaints involving postsecondary 

students will often involve a student 

respondent who faces a potential 

disciplinary sanction. The Department 

currently believes that these features of 

the sex-based harassment grievance 

procedures support the proposed right 

to an advisor for postsecondary students 


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in grievance procedures for complaints 

of sex-based harassment but not for 

complaints of other types of sex 

discrimination. 

The Department also emphasizes that 

in grievance procedures when one party 

is a postsecondary student and another 

party is not, proposed § 106.46(e)(2) 

would require a postsecondary 

institution to permit the non-student 

party the same opportunity for an 

advisor as the postsecondary student to 

ensure equitable opportunity to 

participate, as would be required by 

proposed § 106.45(b)(1). In addition, as 

explained in the discussion of proposed 

§ 106.46(f)(1), for a postsecondary 

institution that exercises its discretion 

to conduct live hearings with advisorconducted questioning under proposed 

§ 106.46(f)(1), advisors would be a 

necessary component of that process. 

The Department also notes that in 

proceedings based on an allegation of 

dating violence, domestic violence, 

sexual assault, or stalking, 

postsecondary institutions are 

separately required by the Clery Act to 

provide the parties with the opportunity 

to be accompanied to any meeting or 

proceeding by an advisor of their 

choice. See 34 CFR 668.46(k)(2)(iii). 

Section 106.46(e)(3) Individuals 

Present at Proceedings 

Current regulations: Section 

106.45(b)(5)(iv) requires a recipient to 

provide the parties with the same 

opportunities to have others present 

during any grievance proceeding. 

Proposed regulations: Proposed 

§ 106.46(e)(3) would require a 

postsecondary institution to provide the 

parties with the same opportunities, if 

any, to have persons other than the 

advisor of the parties’ choice present 

during any meeting or proceeding. 

Reasons: Current § 106.45(b)(5)(iv) 

requires a recipient to provide parties 

with the same opportunities to have 

individuals present during any 

grievance proceeding. The Department 

proposes retaining this requirement at 

proposed § 106.46(e)(3) with minor 

modifications. 

Proposed § 106.46(e)(3) would clarify 

that a postsecondary institution may 

permit these individuals to attend any 

meeting or proceeding during the 

grievance procedures in matters of sexbased harassment involving a student 

complainant or student respondent. 

The Department also proposes adding 

‘‘if any’’ to this provision to make clear 

that a postsecondary institution 

generally would have the discretion not 

to permit parties to bring individuals 

other than their advisor of choice to 

meetings or proceedings. However, 

there are certain situations in which 

postsecondary institutions may need to 

permit a party to have another person, 

in addition to an advisor, present during 

any meeting or proceeding in order to 

ensure that all parties, witnesses, and 

others participating can engage fully in 

the grievance procedures as required by 

Title IX. In particular, a postsecondary 

institution must comply with its 

obligations to ensure effective 

communication for persons with 

disabilities through the provision of 

auxiliary aids and services (such as 

providing a sign language interpreter for 

a party who is deaf or hard of hearing) 

and by making reasonable modifications 

to policies, practices, and procedures to 

avoid discrimination on the basis of 

disability. In addition, a postsecondary 

institution may need to provide 

language assistance services, such as 

translations or interpretation for persons 

with limited English proficiency. In 

these circumstances, a postsecondary 

institution would need to provide the 

parties with the same opportunities to 

have necessary support persons, 

although this may mean that only one 

party (e.g., the party with a disability) is 

permitted to have another person 

present. The Department also notes that 

when the allegation involves dating 

violence, domestic violence, sexual 

assault, or stalking, the Clery Act 

requires separately requires 

postsecondary institutions to provide 

the parties with the same opportunities 

to have individuals present during any 

disciplinary proceeding. See 34 CFR 

668.46(k)(2)(iii). 

Section 106.46(e)(4) Expert Witnesses 

Current regulations: Section 

106.45(b)(5)(ii) requires a recipient to 

provide an equal opportunity for the 

parties to present witnesses, including 

fact and expert witnesses, and to present 

other inculpatory and exculpatory 

evidence. 

Proposed regulations: The 

Department proposes modifying the 

requirement that a recipient provide an 

equal opportunity for parties to present 

expert witnesses. Proposed 

§ 106.46(e)(4) would provide a 

postsecondary institution with the 

discretion to determine whether to 

allow the parties to present expert 

witnesses as long as the determination 

of whether to permit expert witnesses 

applies equally to the parties. 

Reasons: The Department proposes 

revising the requirement in current 

§ 106.45(b)(5)(ii) that a recipient must 

provide an equal opportunity for the 

parties to present expert witnesses by 

permitting a postsecondary institution 

discretion to determine whether the 

parties may present an expert witness— 

provided that this determination applies 

equally to the parties. Under proposed 

§ 106.46(e)(4), the postsecondary 

institution would be permitted to 

exercise this discretion by deciding to 

allow each party to use experts, to not 

to allow any experts, or to use its own 

expert in lieu of experts presented by 

the parties. 

Following the implementation of the 

2020 amendments, stakeholders urged 

the Department to amend the 

regulations to provide recipients with 

discretion to determine whether parties 

may present expert witnesses, as long as 

the opportunity to present or not to 

present experts is provided equally to 

the parties. The Department recognizes 

that expert witnesses would not have 

observed the alleged conduct (unlike 

relevant fact witnesses, which a party 

has a right to present under current 

§ 106.45(b)(5)(ii) and proposed 

§ 106.45(f)(2)) and may not be necessary 

or helpful to the recipient in 

determining whether sex-based 

harassment occurred. Thus, the 

Department’s current position is that a 

postsecondary institution would be in 

the best position to identify whether a 

particular case might benefit from 

expert witnesses. A postsecondary 

institution should also consider whether 

an expert witness would impede a 

prompt resolution to the grievance 

procedures due to the time that may be 

needed to hire an expert witness, for the 

expert witness to review the necessary 

information and formulate an opinion, 

and to arrange for the expert’s 

attendance at any pertinent meetings or 

proceedings. 

Although a postsecondary institution 

would have discretion on how to 

proceed in allowing expert witnesses 

under proposed § 106.46(e)(4), it would 

be required to apply any determination 

equally to the parties. When no experts 

are allowed or the postsecondary 

institution decides to use its own 

expert, this determination would have 

to be applied to all parties. When a 

postsecondary institution decides to 

permit parties to present expert 

witnesses, the postsecondary institution 

would need to apply the same standards 

to determinations about the expert’s 

participation and scope of testimony to 

all parties. Proposed § 106.46(e)(4) 

would not preclude a postsecondary 

institution from determining that the 

expert testimony of one party is 

permissible while another party’s expert 

testimony is not, but it would require 

that a postsecondary institution apply 

the same standards to all parties in 

determining what evidence is 

permissible. The postsecondary 


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institution would also need to comply 

with the requirements of proposed 

§ 106.45(b)(6) and (7) in evaluating 

relevant and not otherwise 

impermissible evidence. 

Section 106.46(e)(5) Timeframes 

Current regulations: Section 

§ 106.45(b)(1)(v) states that, with respect 

to a recipient’s grievance process for 

formal complaints of sexual harassment, 

the recipient must include reasonably 

prompt timeframes for conclusion of the 

grievance process, including reasonably 

prompt timeframes for filing and 

resolving appeals and informal 

resolution processes if the recipient 

offers informal resolution processes, and 

a process that allows for the temporary 

delay of the grievance process or the 

limited extension of 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 a 

party, a party’s advisor, or a witness; 

concurrent law enforcement activity; or 

the need for language assistance or 

accommodation of disabilities. 

Proposed regulations: The 

Department proposes adding a provision 

at proposed § 106.46(e)(5) to clarify that 

a postsecondary institution investigating 

and resolving a sex-based harassment 

complaint involving a student 

complainant or student respondent 

must allow for reasonable extension of 

timeframes in its grievance procedures 

on a case-by-case basis for good cause 

with written notice to the parties that 

includes the reason for delay. 

Reasons: The Department’s proposed 

regulations would clarify that a 

postsecondary institution’s investigation 

and resolution of a sex-based 

harassment complaint involving a 

student complainant or student 

respondent would need to comply not 

only with the timeframe requirements 

set out in proposed § 106.45(b)(4) but 

also with the requirement in proposed 

§ 106.46(e)(5) that it provide written 

notice for any reasonable extension of 

timeframes in its grievance procedures. 

The Department further proposes that 

any written notice from a postsecondary 

institution to the parties would need to 

include the reason for delay. These 

writing requirements are consistent with 

current § 106.45(b)(1)(v). It is the 

Department’s tentative view that 

preserving the requirement that a 

postsecondary institution must provide 

notice of a reasonable extension of 

timeframes in writing is appropriate in 

light of the particular circumstances of 

postsecondary students and the 

requirement that a recipient not 

discriminate based on sex in its 

education program or activity. 

The Department emphasizes that 

proposed § 106.46(e)(5) would not 

constitute an additional basis for 

granting extensions beyond proposed 

§ 106.45(b)(4). A postsecondary 

institution would need to continue to 

evaluate any possible extension of 

timeframes on a case-by-case basis and 

such extensions must be allowed only 

for good cause, as required by proposed 

§ 106.45(b)(4). 

Section 106.46(e)(6) Access to 

Relevant and Not Otherwise 

Impermissible Evidence 

Current regulations: Section 

106.45(b)(5)(vi) requires a recipient to 

provide both parties with 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 reaching a responsibility 

determination and inculpatory or 

exculpatory evidence whether obtained 

from a party or other source. The 

provision indicates that this opportunity 

to review the evidence should enable 

each party to meaningfully respond to 

the evidence prior to conclusion of the 

investigation. In addition, current 

§ 106.45(b)(5)(vi) requires a recipient to 

send this evidence in an electronic 

format or a hard copy to each party and 

the party’s advisor prior to the 

completion of the investigative report. 

The current regulations specify that the 

parties must have at least ten days to 

submit a written response, which the 

investigator must consider prior to the 

completion of the investigative report. 

Current § 106.45(b)(5)(vi) also requires a 

recipient to make all of the evidence 

subject to the parties’ inspection and 

review available at any hearing so that 

the parties have an equal opportunity to 

refer to the evidence during the hearing, 

including for purposes of crossexamination. 

Current § 106.45(b)(5)(vii) requires a 

recipient to create an investigative 

report that fairly summarizes the 

relevant evidence. This provision 

specifies that a recipient must send the 

investigative report in an electronic 

format or a hard copy to the parties and 

their advisors for their review and 

written response. The recipient must 

provide the report at least ten days prior 

to a hearing (if one is required or 

otherwise provided) or prior to the time 

of the responsibility determination. 

Proposed regulations: Proposed 

§ 106.46(e)(6) would require a 

postsecondary institution to provide 

parties and their advisors, if any, with 

equitable access to evidence that is 

relevant to the allegations of sex-based 

harassment and not otherwise 

impermissible, as described in proposed 

§§ 106.2 and 106.45(b)(7). Under 

proposed § 106.46(e)(6)(i), a 

postsecondary institution must provide 

either equitable access to the relevant 

and not otherwise impermissible 

evidence, or it must provide the parties 

with the same written investigative 

report that accurately summarizes this 

evidence. If a postsecondary institution 

chooses to provide an investigative 

report and then a party requests access 

to the evidence, the institution would be 

required to provide all parties with 

equitable access to the relevant and not 

otherwise impermissible evidence. 

Proposed § 106.46(e)(6)(ii) would 

require a postsecondary institution to 

provide the parties with a reasonable 

opportunity to review and respond to 

the evidence as described in the 

investigative report or as provided to the 

parties prior to the determination of 

whether sex-based harassment occurred. 

In addition, if a postsecondary 

institution conducts a live hearing as 

part of its grievance procedures, 

proposed § 106.46(e)(6)(ii) would 

require the institution to provide the 

opportunity to review the evidence in 

advance of the live hearing; however, 

the proposed regulations would allow 

the postsecondary institution to decide 

whether to provide the opportunity to 

respond to the evidence prior to the 

hearing, during the hearing, or both 

prior to and during the hearing. 

Proposed § 106.46(e)(6)(iii) would 

require a postsecondary institution to 

take reasonable steps to prevent and 

address any unauthorized disclosures 

by the parties and their advisors of 

information and evidence obtained 

solely through the sex-based harassment 

grievance procedures. 

Finally, proposed § 106.46(e)(6)(iv) 

would clarify that compliance with 

proposed § 106.46(e)(6) would satisfy 

the requirements of proposed 

§ 106.45(f)(4). 

Reasons: Current § 106.45(b)(5)(vi) 

requires a recipient to provide the 

parties with an equal opportunity to 

review and respond to evidence 

obtained during the investigation, and 

current § 106.45(b)(5)(vii) requires a 

recipient to create an investigative 

report summarizing the relevant 

evidence for the parties’ review and 

response. The Department proposes 

modifying and merging these 

requirements in proposed § 106.46(e)(6). 

Scope of evidence provided to the 

parties. Current § 106.45(b)(5)(vi) 

requires the recipient to provide the 


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parties with 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. The 

current regulations distinguish between 

evidence that is directly related to the 

allegations, to which the recipient must 

provide the parties with access, and 

relevant evidence, which the recipient 

must evaluate (§ 106.45(b)(1)(ii)), 

include in the investigative report 

(§ 106.45(b)(5)(vii)), and permit 

questions about (§ 106.45(b)(6)). The 

current regulations require that if the 

recipient obtains evidence related to a 

complainant’s sexual predisposition or 

prior sexual behavior that is directly 

related to the allegations, it should 

disclose it to both parties, see 85 FR 

30428, even though evidence about a 

complainant’s sexual predisposition 

‘‘would never be included in the 

investigative report and evidence about 

a complainant’s prior sexual behavior 

would be included only if it meets one 

of the two narrow exceptions,’’ id. at 

30304. Similar restrictions on the use of 

evidence about a complainant’s sexual 

predisposition or prior sexual behavior, 

as well as questions seeking this 

evidence, apply at a live hearing and to 

written questions (and their answers) at 

current § 106.45(b)(6)(ii). 

In the preamble to the 2020 

amendments, the Department stated that 

evidence should be disclosed to the 

extent it is ‘‘directly related’’ to the 

allegations and that ‘‘directly related 

may sometimes encompass a broader 

universe of evidence than evidence that 

is ‘relevant.’ ’’ Id. OCR received 

feedback during the June 2021 Title IX 

Public Hearing that the distinction in 

the current regulations between 

evidence that is directly related to the 

allegations and relevant evidence is 

confusing and not well-delineated. One 

stakeholder expressed confusion as to 

why a recipient should provide access 

to evidence that is not relevant to the 

incident, and another commenter noted 

that discovery rules do not require 

production of irrelevant and 

confidential materials in court. OCR 

also received feedback in connection 

with the June 2021 Title IX Public 

Hearing urging the Department to use a 

relevance standard for the provision of 

evidence to the parties. The 

Department’s tentative view is that these 

comments highlight significant issues 

associated with the current regulations 

on access to evidence that may interfere 

with a recipient’s ability to comply with 

their Title IX obligations. 

To assist recipients (and parties) in 

determining the scope of permissible 

evidence, the Department proposes 

merging the ‘‘directly related’’ and 

‘‘relevant’’ evidentiary standards by 

defining ‘‘relevant’’ in proposed § 106.2 

as evidence related to the allegations of 

sex discrimination. Because relevant 

evidence includes all evidence related 

to the allegations of sex discrimination 

under investigation, any evidence that is 

directly related to the allegations would 

necessarily be considered evidence that 

is related to the allegations. Therefore, 

it is the Department’s tentative view that 

once the term ‘‘relevant’’ is properly 

defined within the regulations, the 

proposed regulations would require a 

similar universe of evidence to be made 

available to the parties with one 

exception: unlike the current 

regulations, the proposed regulations 

would prohibit a postsecondary 

institution from disclosing evidence of 

the complainant’s sexual interests and 

prior sexual conduct, except as 

narrowly permitted by proposed 

§ 106.45(b)(7). 

In the preamble to the 2020 

amendments, the Department explained 

that using the ‘‘[directly related] 

approach balances the recipient’s 

obligation to impartially gather and 

objectively evaluate all relevant 

evidence . . . with the parties’ equal 

right to participate in furthering each 

party’s own interests by identifying 

evidence overlooked by the investigator 

and evidence the investigator 

erroneously deemed relevant or 

irrelevant and making arguments to the 

decision-maker regarding the relevance 

of evidence and the weight or credibility 

of relevant evidence.’’ Id. at 30303. The 

Department also stated in the preamble 

that ‘‘[t]he parties should have the 

opportunity to argue that evidence 

directly related to the allegations is in 

fact relevant (and not otherwise barred 

from use under § 106.45), and parties 

will not have a robust opportunity to do 

this if evidence related to the allegations 

is withheld from the parties by the 

investigator.’’ Id. at 30304. The 

Department further explained that the 

use of the ‘‘directly related’’ standard 

provides the parties with access to ‘‘the 

universe of relevant and potentially 

relevant evidence’’ with enough time for 

them to offer additional relevant facts 

and witnesses. Id. at 30303. The 

Department stated that it was ‘‘sensitive 

to commenters’ concerns regarding the 

parties sharing irrelevant information, 

as well as relevant information that is 

relevant but also highly sensitive and 

personal, as part of the investigative 

process’’; however, the Department 

stated that such concerns ‘‘must be 

weighed against the demands of due 

process and fundamental fairness, 

which require procedures designed to 

promote accuracy through meaningful 

participation of the parties.’’ Id. 

Nevertheless, the Department noted that 

‘‘it may be true in some respects that 

this provision affords parties greater 

protection than some courts have 

determined is required under 

constitutional due process or concepts 

of fundamental fairness.’’ Id. 

By defining ‘‘relevant’’ evidence in 

proposed § 106.2 to encompass all 

evidence related to the allegations of sex 

discrimination, the Department would 

address the concern previously 

expressed by the Department that an 

investigator might erroneously screen 

out evidence related to the allegations 

that the investigator believed to be 

related but not relevant. In addition, in 

response to the concern previously 

expressed by the Department that the 

parties must have the opportunity to 

offer additional relevant evidence after 

reviewing the universe of evidence 

directly related to the allegations, the 

Department would require a 

postsecondary institution to give the 

parties an opportunity to respond to the 

evidence prior to the determination of 

whether sex-based harassment occurred. 

After considering the issue, including 

views expressed by a wide array of 

stakeholders to OCR in connection with 

the June 2021 Title IX Public Hearing 

and in listening sessions, the 

Department thus proposes clarifying the 

scope of evidence that a postsecondary 

institution must disclose. Under 

proposed § 106.46(e)(6), a postsecondary 

institution would be required to provide 

equitable access to evidence that is 

‘‘relevant,’’ as defined by proposed 

§ 106.2, to the allegations of sex-based 

harassment, and not otherwise deemed 

impermissible regardless of relevance, 

as set out in proposed § 106.45(b)(7). 

The proposed provision would prohibit 

a postsecondary institution from 

disclosing information that is not 

relevant and evidence that is 

impermissible, including evidence of 

the complainant’s sexual interests and 

prior sexual conduct, except as 

narrowly permitted by § 106.45(b)(7). 

In addition, the Department has 

reweighed the facts and circumstances 

in light of the concerns expressed by 

stakeholders regarding the disclosure of 

information related to the complainant’s 

sexual interests and prior sexual 

conduct. Considering the significant 

concerns that the current provision may 

incentivize the introduction of 

prejudicial information, chill reporting, 

and unnecessarily harm the parties, the 

Department does not view the 

requirements to disclose irrelevant 

evidence, as well as relevant but 


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impermissible evidence, as furthering 

the fairness and accuracy of the process. 

Method of providing evidence to the 

parties. Current § 106.45(b)(5)(vi) 

requires a recipient to provide the 

parties with the opportunity to inspect 

and review evidence directly related to 

the allegations, and current 

§ 106.45(b)(5)(vii) requires a recipient to 

provide the parties with an investigative 

report summarizing the relevant 

evidence. In contrast, proposed 

§ 106.46(e)(6)(i) would require a 

postsecondary institution to provide the 

parties and their advisors, if any, either 

with access to the relevant and not 

otherwise impermissible evidence, or 

with the same written investigative 

report that accurately summarizes the 

relevant and not otherwise 

impermissible evidence. If the 

postsecondary institution chooses to 

provide an investigative report and a 

party requests access to the evidence, 

the institution would be required to 

provide access to the relevant and not 

otherwise impermissible evidence to all 

parties. Accordingly, parties would 

retain under the proposed regulations 

the right set out under current 

§ 106.45(b)(5)(vi) subject to the 

limitation on access to evidence that is 

not relevant or is otherwise 

impermissible as discussed above. 

In the preamble to the 2020 

amendments, the Department 

recognized the concerns expressed by 

many stakeholders about the burden 

and costs that current § 106.45(b)(5)(vi) 

and (vii) may place on a recipient. In the 

preamble, the Department agreed that 

‘‘these provisions have the potential to 

generate modest burden and costs, but 

believe[d] that the financial costs and 

administrative burdens resulting from 

the provisions are far outweighed by the 

due process protections ensured by 

these provisions.’’ Id. at 30307. The 

Department stated that disclosing 

evidence to the parties is not an 

‘‘unacceptable burden[ ] . . . because 

reviewing the universe of evidence that 

is, or may be, relevant represents a 

critical part of enabling parties to have 

a meaningful opportunity to be heard, 

which is an essential component of due 

process and fundamental fairness.’’ Id. 

After considering the issue and 

reweighing the facts and circumstances, 

the Department proposes giving a 

postsecondary institution the discretion 

to decide whether to provide access to 

the relevant and not otherwise 

impermissible evidence or to provide an 

investigative report that accurately 

summarizes the relevant and not 

otherwise impermissible evidence and 

then provide access to the evidence if 

requested by one or more parties. 

Postsecondary institutions vary greatly 

in terms of size, resources, and 

expertise, and complaints of sex-based 

harassment also vary greatly in terms of 

the nature of the conduct alleged, the 

volume and format of the evidence, and 

in other ways. Proposed § 106.46(e)(6)(i) 

would give more flexibility to a 

postsecondary institution than the 

current regulations in the manner of 

presenting the evidence to the parties 

while ensuring that grievance 

procedures remain equitable and that 

the institution can meet its Title IX 

obligation to provide its program or 

activity free from sex discrimination. 

Either option under proposed 

§ 106.46(e)(6)—providing an 

investigative report or the evidence 

itself—would enable the parties to 

access the universe of evidence relevant 

to the allegations of sex-based 

harassment. In turn, this would enable 

the parties to meaningfully prepare 

arguments, contest the relevance of 

evidence, and present additional 

evidence for consideration. The 

Department tentatively views the 

requirement to convey the same 

universe of evidence in two different 

formats (an investigative report and 

access to the evidence) as unnecessary 

for ensuring that grievance procedures 

are implemented equitably and 

effectively, and as increasing costs, 

burden, and delay without providing a 

meaningful benefit to the parties. 

Finally, proposed § 106.46(e)(6)(iv) 

would clarify that compliance with 

proposed § 106.46(e)(6) would satisfy 

the requirements of proposed 

§ 106.45(f)(4). Proposed § 106.45(f)(4) 

requires recipients to provide the parties 

with a description of the evidence that 

is relevant to the allegations of sex 

discrimination and not otherwise 

impermissible, as well as a reasonable 

opportunity to respond. 

Equitable access to the evidence. 

Proposed § 106.46(e)(6) would require a 

postsecondary institution to provide 

equitable access to the relevant and not 

otherwise impermissible evidence. This 

would mean, for example, that a 

postsecondary institution could not 

choose to provide access to the evidence 

to one party and an investigative report 

to the other party or parties. The 

requirement to provide equitable access 

would also extend to the mode of 

delivery. Under proposed § 106.46(e), if 

a postsecondary institution provides an 

electronic copy of the relevant evidence 

to one party, the institution would be 

required to do the same for all parties. 

If a postsecondary institution permits a 

party only to inspect and review the 

evidence without providing that party 

their own copy, the institution would 

not be permitted to provide a physical 

copy to another party. If, however, a 

party needs to access the evidence in a 

particular mode due to a disability, a 

postsecondary institution would be 

required to comply with its obligations 

to ensure effective communication 

through the provision of auxiliary aids 

and services. For persons with limited 

English proficiency, a postsecondary 

institution may need to provide 

language assistance services, such as 

translations or interpretation. To 

comply with the requirement under 

proposed § 106.46(e)(6) to provide 

equitable access to the evidence, a 

postsecondary institution would also be 

required to be mindful of any 

extenuating circumstances (e.g., one 

party is studying abroad) that affect a 

party’s ability to access the evidence in 

a particular manner. 

Beyond the general requirement for 

equitable access to the relevant 

evidence, the Department is not 

proposing specific requirements for the 

manner of providing the investigative 

report or the evidence to the parties. A 

postsecondary institution would have 

the discretion to determine how to 

provide this information, as long as the 

parties and their advisors have a 

meaningful opportunity to review the 

information. As discussed below, 

proposed § 106.46(e)(6)(iii) would 

require a postsecondary institution to 

take reasonable steps to prevent 

unauthorized disclosure of information 

and evidence. The manner of providing 

the information to the parties may vary 

depending on the available resources to 

the institution, the location of the 

parties, the type of evidence, and other 

case-specific circumstances. The 

Department seeks to provide this 

flexibility to postsecondary institutions 

while ensuring meaningful review and 

protection of the information. 

Timeframe for receiving and 

responding to the evidence. The current 

regulations set out very specific 

timeframes for providing the parties 

with access to the evidence and a copy 

of the investigative report. Current 

§ 106.45(b)(5)(vi) requires the recipient 

to give the parties at least 10 days to 

submit a response after reviewing the 

evidence. The investigator must then 

consider any response and then create 

an investigative report. The recipient 

must provide the investigative report to 

the parties at least 10 days prior to a 

hearing (if one is required under current 

§ 106.45) or other time of determination 

regarding responsibility. 

Following the implementation of the 

2020 amendments, OCR received 

feedback from stakeholders in listening 

sessions and in comments provided in 


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connection with the June 2021 Title IX 

Public Hearing that the rigid timeframes 

in the current regulations prolong the 

process and impede prompt resolutions. 

One organization urged the Department 

to make the process simpler and more 

streamlined, noting that the current 

provisions could add a delay of nearly 

one month between the close of 

interviews and the start of a hearing. A 

comment from a coalition of 

organizations urged the Department to 

permit greater flexibility for recipients 

and to permit ‘‘simplified procedures 

with shorter timelines’’ in certain cases, 

such as those involving detentions and 

brief suspensions. OCR has also 

received comments indicating that the 

ten-day timelines are reasonable 

timeframes or even too short. In the 

preamble to the 2020 amendments, the 

Department stated that ‘‘the time frame 

is appropriate for the parties to read and 

respond to the evidence subject to 

inspection and review, and then to the 

investigative report.’’ 85 FR 30306. 

After considering the issue and 

reweighing the facts and circumstances, 

including feedback received in 

connection with the June 2021 Title IX 

Public Hearing, the Department 

proposes in § 106.46(e)(6)(ii) to remove 

the specific timeframes and instead 

permit a postsecondary institution 

flexibility to set reasonable timeframes 

for ensuring that parties have a 

reasonable opportunity to review and 

respond to evidence. When the 

grievance procedures do not involve a 

live hearing, proposed § 106.46(e)(6)(ii) 

would require a postsecondary 

institution to provide the parties with a 

reasonable opportunity to review and 

respond to the evidence prior to the 

determination of whether sex-based 

harassment occurred. When a 

postsecondary institution conducts a 

live hearing as part of its grievance 

procedures, proposed § 106.46(e)(6)(ii) 

would require the institution to provide 

the parties with the opportunity to 

review the evidence in advance of the 

live hearing. This provision would 

allow the postsecondary institution to 

decide whether to provide the 

opportunity to respond to the evidence 

prior to the hearing, during the hearing, 

or both prior to and during the hearing. 

The nature and volume of evidence 

varies greatly based on the allegations in 

a complaint and the surrounding 

circumstances. The Department is 

proposing a reasonable timeframe to 

accommodate this variation. Parties may 

need more time to meaningfully review 

hundreds of pages of evidence and 

dozens of witness statements than they 

would need to review a much smaller 

evidentiary file. Proposed 

§ 106.46(e)(6)(ii) would increase 

discretion for a postsecondary 

institution while still ensuring that the 

parties would be able to meaningfully 

review and respond to the relevant and 

not otherwise impermissible evidence 

prior to the live hearing or other 

determination of whether sex-based 

harassment occurred. 

Protections against unauthorized 

disclosures. Current § 106.45(b)(5)(vi) 

and (vii) do not expressly require a 

recipient to take measures to safeguard 

the evidence and investigative report 

that they share with the parties and 

their advisors. Nevertheless, the 

Department recognized in the preamble 

to the 2020 amendments that a recipient 

may adopt additional practices to 

protect privacy, such as digital 

encryption or sharing evidence in a way 

that prevents copying or saving the 

records. See id. at 30307–08, 30435. The 

Department also stated in the preamble 

that ‘‘[r]ecipients may require parties 

and advisors to refrain from 

disseminating the evidence (for 

instance, by requiring parties and 

advisors to sign a non-disclosure 

agreement that permits review and use 

of the evidence only for purposes of the 

Title IX grievance process).’’ Id. at 

30304. Following the implementation of 

the 2020 amendments, OCR received 

feedback urging the Department to 

specify that recipients can and should 

impose reasonable limitations on the 

sharing of evidence by the parties to 

protect privacy and prevent the spread 

of sensitive information that could 

compromise the fairness of the 

proceedings or harm a party or witness. 

In light of the important privacy 

considerations related to allegations and 

evidence in sex-based harassment 

grievance procedures, the Department 

proposes, at § 106.46(e)(6)(iii), to require 

a postsecondary institution to take 

reasonable steps to prevent and address 

any unauthorized disclosures by the 

parties and their advisors of information 

and evidence obtained through the sexbased harassment grievance procedures. 

As noted above, unauthorized 

disclosure of sensitive information 

could threaten the fairness of the 

process by deterring parties or witnesses 

from participating, affecting the 

reliability of witness testimony, leading 

to retaliatory harassment, and other 

consequences. The Department is not 

proposing specific steps that a 

postsecondary institution must take, as 

what is reasonable to prevent 

unauthorized disclosure may vary 

depending on the circumstances. In 

some circumstances, it may be sufficient 

to inform the parties of the institution’s 

expectations for how the parties should 

safeguard the evidence and the 

consequences for unauthorized 

disclosures. A postsecondary institution 

may also use software that restricts 

further distribution of any reports or 

records. A postsecondary institution 

would have the discretion to define for 

the parties what types of further 

disclosures are permissible; however, 

they would not be able to prohibit 

disclosures to confidential resources, 

such as a party’s doctor or mental health 

counselor. 

Section 106.46(f) Evaluating 

Allegations and Assessing Credibility 

and 106.46(g) Live Hearings 

Current regulations: Section 

106.45(b)(6)(i) requires a postsecondary 

institution to provide for a live hearing 

as part of its grievance process for 

formal complaints of sexual harassment. 

Live hearings may be conducted with all 

parties physically present in the same 

geographic location or, at the request of 

either party, the recipient must provide 

for the live hearing to occur with the 

parties located in separate rooms with 

technology enabling the decisionmaker 

and parties to simultaneously to see and 

hear the party or witness answering 

questions. The recipient must create an 

audio or audiovisual recording, or 

transcript, of any live hearing and make 

it available to the parties for inspection 

and review. 

At the live hearing, the decisionmaker 

is required to permit each party’s 

advisor to ask the other party and any 

witnesses all relevant questions and 

follow-up questions, including those 

challenging credibility. Crossexamination at the live hearing must be 

conducted directly, orally, and in real 

time by the party’s advisor of choice and 

never by a party personally. At the 

request of either party, the recipient 

must provide for the live hearing to 

occur with the parties located in 

separate rooms with technology 

enabling the decisionmaker and parties 

to simultaneously see and hear the party 

or the witness answering questions. 

Only relevant cross-examination and 

other questions may be asked of a party 

or witness. Before a complainant, 

respondent, or witness answers a crossexamination or other question, the 

decisionmaker must first determine 

whether the question is relevant and 

explain any decision to exclude a 

question as not relevant. If a party does 

not have an advisor present at the live 

hearing, the recipient must provide 

without fee or charge to that party, an 

advisor of the recipient’s choice, who 

may be, but is not required to be, an 

attorney, to conduct cross-examination 

on behalf of that party. Questions and 


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evidence about the complainant’s sexual 

predisposition or prior sexual behavior 

are not relevant, unless such questions 

and evidence about the complainant’s 

prior sexual behavior are offered to 

prove that someone other than the 

respondent committed the conduct 

alleged by the complainant, or if the 

questions and evidence concern specific 

incidents of the complainant’s prior 

sexual behavior with respect to the 

respondent and are offered to prove 

consent. 

If a party or witness does not submit 

to cross-examination at the live hearing, 

the decisionmaker must not rely on any 

statement of that party or witness in 

reaching a determination regarding 

responsibility; provided, however, that 

the decisionmaker cannot draw an 

inference about the determination 

regarding responsibility based solely on 

a party’s or witness’s absence from the 

live hearing or refusal to answer crossexamination or other questions. 

Current § 106.45(b)(6)(ii) permits, but 

does not require, elementary and 

secondary school recipients, and other 

recipients that are not postsecondary 

institutions, to provide for a hearing as 

part of their Title IX grievance process 

for formal complaints of sexual 

harassment. 

With or without a hearing, after the 

recipient has sent the investigative 

report to the parties and before reaching 

a determination regarding 

responsibility, the decisionmaker must 

afford each party the opportunity to 

submit written, relevant questions that a 

party wants asked of any party or 

witness, provide each party with the 

answers, and allow for additional, 

limited follow-up questions from each 

party. 

With or without a hearing, questions 

and evidence about the complainant’s 

sexual predisposition or prior sexual 

behavior are not relevant, unless such 

questions and evidence about the 

complainant’s prior sexual behavior are 

offered to prove that someone other than 

the respondent committed the conduct 

alleged by the complainant, or if the 

questions and evidence concern specific 

incidents of the complainant’s prior 

sexual behavior with respect to the 

respondent and are offered to prove 

consent. The decisionmaker must 

explain to the party proposing the 

questions any decision to exclude a 

question as not relevant. 

Proposed regulations: The 

Department proposes adding § 106.46(f) 

to address the requirements for 

evaluating allegations and assessing 

credibility and moving the provision 

regarding procedures for live hearings to 

proposed § 106.46(g). Proposed 

§ 106.46(f)(1) would require a 

postsecondary institution to provide a 

process as specified in this subpart that 

enables the decisionmaker to adequately 

assess the credibility of the parties and 

witnesses to the extent credibility is 

both in dispute and relevant to 

evaluating one or more allegations of 

sex-based harassment. This assessment 

of credibility would include either: (i) 

allowing the decisionmaker to ask the 

parties and witnesses relevant and not 

otherwise impermissible questions and 

follow-up questions, including those 

challenging credibility, during 

individual meetings with the parties or 

at a live hearing before determining 

whether sex-based harassment occurred 

and allowing each party to propose to 

the decisionmaker or investigator 

relevant and not otherwise 

impermissible questions and follow-up 

questions, including questions 

challenging credibility that the party 

wants asked of any party or witness and 

have those questions asked during 

individual meetings with the parties or 

at a live hearing subject to the 

requirements in proposed § 106.46(f)(3); 

or (ii) when a postsecondary institution 

chooses to conduct a live hearing, 

allowing each party’s advisor to ask any 

party and any witnesses all relevant and 

not otherwise impermissible questions 

under proposed §§ 106.2 and 

106.45(b)(7) and follow-up questions, 

including those challenging credibility, 

subject to the requirements in proposed 

§ 106.46(f)(3). Proposed § 106.46(f)(1)(ii) 

would retain the language from current 

§ 106.45(b)(6)(i) that questioning at a 

live hearing must never be conducted by 

a party personally. In addition, under 

proposed § 106.46(f)(1)(ii), if a 

postsecondary institution permits 

advisor-conducted questioning and a 

party does not have an advisor who can 

ask questions on their behalf, the 

postsecondary institution must provide 

the party with an advisor of the 

postsecondary institution’s choice, 

without charge to the party, for the 

purpose of advisor-conducting 

questioning, which is the same as the 

requirement in current § 106.45(b)(6)(i). 

The advisor may be, but is not required 

to be, an attorney. 

Proposed § 106.46(f)(2) would state 

that compliance with proposed 

§ 106.46(f)(1)(i) or (ii) satisfies the 

requirements of § 106.45(g) to provide a 

process that enables the decisionmaker 

to adequately assess the credibility of 

the parties and witnesses to the extent 

credibility is both in dispute and 

relevant to evaluating one or more 

allegations of sex discrimination. 

Proposed § 106.46(f)(3) would require 

the decisionmaker to determine whether 

a proposed question is relevant and not 

otherwise impermissible under 

proposed §§ 106.2 and 106.45(b)(7) prior 

to the question being posed and explain 

any decision to exclude a question as 

not relevant, which is the same as the 

requirement in current § 106.45(b)(6)(i) 

and (ii). If a decisionmaker determines 

that a party’s question is relevant and 

not otherwise impermissible, then it 

must be asked, with the exception that 

a postsecondary institution must not 

permit questions that are unclear, such 

that they are vague or ambiguous, or 

harassing of the party being questioned. 

A postsecondary institution would also 

be permitted to impose other rules 

regarding decorum, provided they apply 

equally to the parties. 

Although proposed § 106.46(f)(1) and 

(3) do not include the specific language 

from current § 106.45(b)(6)(i) and (ii) 

regarding questions and evidence about 

the complainant’s sexual predisposition 

or prior sexual behavior, the concepts 

from the current regulations would be 

included in proposed § 106.45(b)(7) on 

evidence that is impermissible 

regardless of relevance and would be 

cross-referenced in proposed 

§ 106.46(f)(1) and (3). 

The Department proposes revising the 

language in current § 106.45(b)(6)(i) that 

prohibits the decisionmaker from 

relying on any statement of a party or 

witness who does not submit to crossexamination at the live hearing in 

reaching a determination regarding 

responsibility. Instead of prohibiting the 

decisionmaker from considering all 

prior statements in these cases, 

proposed § 106.46(f)(4) would provide 

that if a party does not respond to 

questions related to their credibility, the 

decisionmaker must not rely on any 

statement of that party that supports 

that party’s position. The Department 

also proposes maintaining, with minor 

revisions, the general principle from 

current § 106.45(b)(6)(i) regarding 

drawing an inference based solely on a 

hearing participant’s decision not to 

respond to questions. Proposed 

§ 106.46(f)(4) would prohibit the 

decisionmaker from drawing an 

inference about whether sex-based 

harassment occurred based solely on a 

party’s or witness’s refusal to respond to 

questions related to credibility, 

including a refusal to answer such 

questions during a live hearing. 

Proposed § 106.46(g) would eliminate 

the requirement in current 

§ 106.45(b)(6)(i) that a postsecondary 

institution must provide for a live 

hearing with cross-examination in its 

grievance procedures for complaints of 

sex-based harassment. Instead, proposed 

§ 106.46(g) would permit, but not 


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require, a postsecondary institution to 

hold live hearings. If a postsecondary 

institution chooses to conduct a live 

hearing, it would be permitted to 

conduct the live hearing with the parties 

physically present in the same 

geographic location but at the 

postsecondary institution’s discretion or 

upon the request of either party, it 

would conduct the live hearing with the 

parties physically present in separate 

locations with technology enabling the 

decisionmaker and parties to 

simultaneously see and hear the party or 

the witness while that person is 

speaking or communicating in another 

format, which is the same as the 

requirement in current § 106.45(b)(6)(i). 

The Department also proposes 

maintaining the requirement in current 

§ 106.45(b)(6)(i) that a postsecondary 

institution create an audio or 

audiovisual recording, or transcript, of 

any live hearing and make it available 

to the parties for inspection and review. 

For information regarding proposed 

requirements related to evaluating 

allegations and assessing credibility for 

complaints of sex discrimination other 

than sex-based harassment complaints 

involving a student complainant or 

student respondent at a postsecondary 

institution, see the discussion of 

proposed § 106.45(g). 

Reasons: Live hearings, advisorconducted questioning, process to 

assess credibility and evaluate 

allegations. The Department proposes 

eliminating the requirement that all 

postsecondary institutions must hold a 

live hearing with advisor-conducted 

cross-examination. Under the proposed 

regulations, a postsecondary institution 

would be permitted, but not required, to 

hold a live hearing and to use advisorconducted questioning when credibility 

is at issue and relevant to evaluating one 

or more allegations of sex-based 

harassment. The Department recognizes 

the importance of a postsecondary 

institution having procedures in place 

to assess credibility when necessary and 

to provide a meaningful opportunity for 

the parties to be heard, regardless of 

whether it chooses to hold a live 

hearing. The proposed regulations 

would require a postsecondary 

institution to provide a process that 

enables the decisionmaker, prior to 

determining whether sex-based 

harassment occurred, to adequately 

assess the credibility of the parties and 

witnesses to the extent credibility is in 

dispute and relevant to evaluating one 

or more allegations of sex-based 

harassment. This would include 

allowing the decisionmaker to ask the 

parties and witnesses relevant questions 

and follow-up questions, including 

questions challenging credibility, at a 

live hearing or during individual 

meetings with the parties. It would also 

include allowing each party to propose 

to the postsecondary institution’s 

decisionmaker or investigator relevant 

questions and follow-up questions, 

including questions challenging 

credibility, that they want asked of any 

party or witness and have those 

questions asked during individual 

meetings with the parties or at a live 

hearing subject to certain requirements. 

In addition, when a postsecondary 

institution chooses to conduct a live 

hearing, it would be permitted to use 

advisor-conducted cross-examination to 

satisfy the requirement to have a process 

to assess credibility. The Department 

provides an overview of the relevant 

preamble discussions from the 2018 

NPRM and 2020 amendments for 

requiring live hearings and crossexamination in the grievance 

procedures of postsecondary institution 

recipients and provides the reasons for 

changing these requirements. 

Explanation in the 2018 NPRM. In the 

2018 NPRM, the Department described 

cross-examination as ‘‘ ‘the greatest legal 

engine ever invented for the discovery 

of truth,’ ’’ 83 FR 61476 (quoting 

California v. Green, 399 U.S. 149, 158 

(1970) (quoting 5 John H. Wigmore, 

Evidence § 1367, at 29 (3d ed. 1940))), 

and noted that at least one Federal 

circuit court has held that crossexamination is a constitutional 

requirement of due process in the Title 

IX context involving a public 

institution, id. (citing Doe v. Baum, 903 

F.3d 575, 581 (6th Cir. 2018)). The 

Department added that after careful 

consideration regarding how to best to 

incorporate cross-examination for 

proceedings at both the postsecondary 

level and the elementary and secondary 

school level, it had determined that 

issues related to age and developmental 

ability may outweigh the benefits of 

cross-examination at a live hearing in 

the elementary and secondary school 

context. See id. The Department 

determined that because these same 

issues do not exist at postsecondary 

institutions since most parties and 

witnesses are adults, grievance 

procedures at postsecondary institutions 

must include live cross-examination at 

a hearing. Id. The Department explained 

that requiring the party advisors to 

conduct the cross-examination provides 

the benefits of cross-examination while 

avoiding any unnecessary trauma that 

could arise from personal confrontation 

between the complainant and the 

respondent. See id. (citing Baum, 903 

F.3d at 583). 

Discussion of balancing the rights of 

the parties in the preamble to the 2020 

amendments. In response to 

stakeholders’ support for the proposal to 

require a postsecondary institution to 

hold live hearings with advisorconducted cross-examination, the 

Department recognized that several 

appellate courts had recently considered 

the value of cross-examination in 

student misconduct proceedings in 

postsecondary institutions and 

concluded that a meaningful 

opportunity to be heard includes the 

ability to challenge the testimony of 

parties and witnesses. See 85 FR 30313. 

The Department also agreed with 

stakeholders that cross-examination 

serves the interests of parties and 

recipients because, in their view, it 

allows the decisionmaker to observe 

parties and witnesses answer questions, 

including those challenging credibility, 

which serves the truth-seeking function. 

See id. 

The Department further stated that 

cross-examination is a necessary part of 

a fair, truth-seeking grievance process in 

postsecondary institutions, and that the 

2020 amendments include appropriate 

safeguards that minimize the traumatic 

effect on complainants. See id. at 30315. 

In response to concerns raised by 

stakeholders regarding the traumatic 

effect of live hearings and crossexamination, the Department explained 

that any re-traumatization of 

complainants can be mitigated because 

cross-examination is conducted only by 

party advisors and the 2020 

amendments contain other protections 

regarding the types of questions and 

evidence permitted and the ability to 

request that the live hearing occur with 

the parties in separate rooms. See id. at 

30313–14. 

Discussion of cross-examination and 

reporting in the preamble to the 2020 

amendments. In response to concerns 

that requiring live hearings with crossexamination would have a chilling 

effect on reporting, the Department 

acknowledged in the preamble to the 

2020 amendments that complainants 

may be dissuaded from pursuing a 

formal complaint out of fear of 

undergoing aggressive questioning, but 

noted that recipients may educate their 

students and employees regarding what 

cross-examination will look like and 

may also develop rules and practices 

that ensure that questioning during 

cross-examination is relevant, 

respectful, and non-abusive. See id. at 

30316. In addition, in response to 

concerns that requiring crossexamination would discourage many 

students, including complainants, 

respondents, and witnesses, from 


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participating in a Title IX grievance 

process, see id. at 30331, the 

Department stated that live hearings and 

cross-examination at postsecondary 

institutions, constitutes a serious, 

formal process’’ and noted that the 2020 

amendments ensured that a recipient’s 

students and employees are ‘‘aware of 

that process’’ and ‘‘each party has the 

right to assistance from an attorney or 

non-attorney advisor throughout the 

process,’’ id. at 30332. The Department 

explained sexual harassment is a serious 

matter that warrants a predictable, fair 

grievance process with strong 

procedural protections for both parties’’ 

to ensure reliable determinations 

regarding responsibility. Id. 

Case law discussion regarding crossexamination and due process in the 

preamble to the 2020 amendments. As 

noted in the discussion of the 

Framework for Grievance Procedures for 

Complaints of Sex Discrimination 

(Section II.F), the Department 

acknowledged in the preamble to the 

2020 amendments that ‘‘the Supreme 

Court has not ruled on what procedures 

satisfy due process of law under the 

U.S. Constitution in the specific context 

of a Title IX sexual harassment 

grievance process held by a 

postsecondary institution, and that 

Federal appellate courts that have 

considered this particular issue in 

recent years have taken different 

approaches.’’ Id. at 30327. The 

Department explained that the 

procedures required under current 

§ 106.45 ‘‘are consistent with 

constitutional requirements’’ and best 

effectuate both parties’ rights to 

meaningfully be heard regarding the 

allegations in a formal complaint of 

sexual harassment. Id. The Department 

recognized that what constitutes a 

meaningful opportunity to be heard may 

depend on specific circumstances and 

explained that a live hearing with crossexamination is required in the 

postsecondary context but not in 

elementary schools and secondary 

schools. See id. 

The Department stated that ‘‘the Sixth 

Circuit has held that cross-examination, 

at least conducted through a party’s 

advisor, is necessary to satisfy due 

process in sexual misconduct cases that 

turn on party credibility.’’ Id. at 30327– 

28 (citing Baum, 903 F.3d at 581). The 

Department agreed with the reasoning of 

the U.S. Court of Appeals for the Sixth 

Circuit in Baum that allowing the 

respondent’s advisor to conduct crossexamination on behalf of the respondent 

provides the benefits of crossexamination without the ‘‘emotional 

trauma of directly confronting the 

complainant’s alleged attacker.’’ Id. at 

30328. Based on this view, the 

Department explained that current 

§ 106.45(b)(6)(i) is consistent with the 

Sixth Circuit’s reasoning because it 

requires that both parties have the 

opportunity for cross-examination, 

allows either party to request that crossexamination (and the entire live 

hearing) be conducted with the parties 

in separate rooms, permits only party 

advisors to conduct cross-examination, 

forbids personal confrontation between 

parties, and requires the decisionmaker 

to determine the relevance of a crossexamination question before a party or 

witness answers. See id. 

The Department noted that the Baum 

opinion involved certain circumstances 

that justified cross-examination: it 

involved a public university that was 

required to comply with constitutional 

due process requirements; a sexual 

harassment case that turned on 

credibility and involved serious 

consequences; and a postsecondary 

institution that already provided 

hearings for other types of misconduct 

and could not argue that it faced more 

than a minimal burden to provide a live 

hearing for sexual harassment cases. See 

id. The Department asserted, however, 

that even though some recipients ‘‘are 

private institutions that do not owe 

constitutional protections,’’ it is equally 

important to consistently apply a 

grievance process to accurately resolve 

allegations of sexual harassment under 

Title IX in private and public 

institutions. Id. The Department agreed 

with stakeholders that not every formal 

complaint of sexual harassment ‘‘turns 

on party or witness credibility’’ but 

noted that ‘‘most of these complaints do 

involve plausible, competing narratives 

of the alleged incident, making party 

participation in the process vital for a 

thorough evaluation of the available, 

relevant evidence.’’ Id. 

The Department also acknowledged in 

the preamble to the 2020 amendments 

that following the public comment 

period on the 2018 NPRM, the U.S. 

Court of Appeals for the First Circuit 

reached a different holding regarding 

cross-examination than the Sixth Circuit 

in a Title IX sexual misconduct case. Id. 

at 30329 (citing Haidak v. Univ. of 

Mass.-Amherst, 933 F.3d 56, 68–70 (1st 

Cir. 2019)). The Department explained 

that the First Circuit held that a 

postsecondary institution could satisfy 

due process ‘‘by using inquisitorial 

rather than adversarial method of crossexamination, by having a neutral school 

official pose probing questions of parties 

and witnesses in real-time, designed to 

ferret out the truth about the allegations 

at issue.’’ Id. (citing Haidak, 933 F.3d at 

69–70). The Department further 

acknowledged that after the public 

comment period on the 2018 NPRM 

closed, the First Circuit also decided a 

case under Massachusetts State law 

involving discipline of a student by a 

private college for sexual misconduct, 

holding that the college ‘‘owed no 

constitutional due process to the 

student and that State law did not 

require any form of real-time crossexamination as part of [the college’s] 

contractual [obligation of] basic 

fairness.’’ Id. (citing Doe v. Trustees of 

Bos. Coll., 942 F.3d 527 (1st Cir. 2019)). 

The Department declined to make any 

changes to current § 106.45(b)(6)(i) in 

response to these decisions. 

Discussion of alternatives to advisorconducted cross-examination in the 

preamble to the 2020 amendments. In 

response to suggestions from 

stakeholders that the Department allow 

postsecondary institutions to use crossexamination conducted by a neutral 

college administrator, or questions 

submitted by the parties as permitted for 

elementary and secondary school 

recipients under the 2020 amendments, 

the Department stated that those 

procedures cannot ensure a fair process 

and reliable outcomes in postsecondary 

institutions. See id. at 30330. The 

Department explained that regardless of 

whether those practices are consistent 

with the requirements of constitutional 

due process it believed that current 

§ 106.45 ‘‘appropriately and reasonably 

balances the truth-seeking function of 

live, real-time, adversarial crossexamination in the postsecondary 

institution context with protections 

against personal confrontation between 

the parties.’’ Id. The Department further 

stated that ‘‘regardless of whether the 

provisions in [current] § 106.45(b)(6)(i) 

are required under constitutional due 

process of law, the Department believes 

that these procedures meet or exceed 

the due process required under 

Mathews v. Eldridge, 424 U.S. 319, 321 

(1976),’’ and that the Department has 

the regulatory authority under Title IX 

to adopt provisions ‘‘the Department has 

determined best effectuate the purpose 

of Title IX.’’ Id. (footnotes omitted). 

Finally, the Department stated that 

adversarial questioning must be 

conducted by persons who need not be 

impartial to the parties and the 

recipient’s neutral, impartial 

decisionmaker benefits from observing 

the questions and answers of each party 

and witness posed by a party’s advisor 

advocating for that party’s interests. See 

id. at 30330–31. 

Feedback received after 

implementation of the 2020 

amendments. According to feedback 

received from stakeholders in 


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connection with the June 2021 Title IX 

Public Hearing and listening sessions, 

although recipients had a limited 

amount of time to assess the impact of 

the 2020 amendments’ live hearing and 

cross-examination requirement, some 

postsecondary institutions reported that 

they experienced a decrease in the 

number of complaints filed as well as an 

increase in the number of individuals 

who report sexual harassment but 

decline to move forward with the 

grievance process once they are 

provided with information about the 

grievance process. These postsecondary 

institutions expressed the belief that 

based on their experiences, the 

reduction in complaints filed and in 

complainants willing to move forward 

with the grievance process is likely due 

to the live hearing and advisorconducted cross-examination 

requirements in the 2020 amendments. 

Other stakeholders questioned the 

utility of live hearings, asserting that 

many of the questions that arise during 

the hearings have already been asked 

and answered during the investigation. 

In addition, a number of postsecondary 

institutions pointed to the live hearing 

and cross-examination requirements as 

examples of provisions in the current 

regulations that are overly burdensome 

and prescriptive for recipients and have 

the effect of interfering with recipients’ 

ability to meet their Title IX obligations. 

In the 2021 Title IX Public Hearing and 

in listening sessions, OCR also heard 

from stakeholders who supported an 

alternative approach to live hearings 

with cross-examination; these 

stakeholders favored giving the 

flexibility the current regulations 

provide for non-postsecondary 

institutions to all recipients by 

permitting the parties to submit 

questions to the decisionmaker to ask, 

providing each party with the answers, 

and allowing for additional, limited 

follow-up questions from each party. 

OCR also received comments from 

several non-recipient stakeholders 

expressing support for the current 

requirements regarding live hearings 

and cross-examination and noting that 

they provide a means for a respondent 

to challenge credibility or 

inconsistencies. 

After considering the issue and 

reweighing the facts and circumstances, 

including views expressed by a wide 

array of stakeholders, particularly those 

with experience in implementing or 

participating in a recipient’s process 

that included the live hearing and crossexamination requirements, and 

reviewing the applicable case law and 

academic writing on the topic of crossexamination and alternatives to crossexamination, the Department proposes 

eliminating the requirement for 

postsecondary institutions to hold a live 

hearing with advisor-conducted cross 

examination while still permitting them 

to hold such a hearing if the 

postsecondary institution deems it 

appropriate in a particular sex-based 

harassment case. The Department’s 

tentative view is that the requirement 

for all postsecondary institutions to 

hold a live hearing with advisorconducted cross-examination exceeds 

what is required in order to provide 

equitable procedures to the parties and 

is not necessary to provide a respondent 

with a meaningful opportunity to be 

heard. The Department’s view is also 

that this requirement in the current 

regulations does not adequately account 

for the diversity of postsecondary 

institutions subject to Title IX. This 

proposed approach would provide a 

recipient with reasonable options for 

how to structure its grievance 

procedures to ensure that they are 

equitable for the parties while 

accommodating each recipient’s 

administrative structure, education 

community, the applicable Federal and 

State case law, and State or local legal 

requirements by still permitting any 

postsecondary institution that so 

chooses to hold a live hearing with 

advisor-conducted cross-examination. 

The Department’s tentative view is 

that neither Title IX nor due process and 

fundamental fairness require 

postsecondary institutions to hold a live 

hearing with advisor-conducted crossexamination in all cases. The 

Department currently believes, however, 

that a postsecondary institution should 

be required to provide a livequestioning process that enables the 

decisionmaker to adequately assess the 

credibility of the parties and witnesses 

to the extent credibility is in dispute 

and is relevant to evaluating one or 

more allegations of sex-based 

harassment in its grievance procedures 

for sex-based harassment involving a 

student complainant or student 

respondent. Further, the Department 

currently believes that the procedures 

described in proposed § 106.46(f) and 

(g) would appropriately protect the right 

of all parties to have a meaningful 

opportunity to respond to allegations 

and the postsecondary institution’s 

interest in grievance procedures that 

enable the decisionmaker to seek the 

truth and minimize chilling effects on 

the reporting of sex-based harassment 

and on participation in the recipient’s 

grievance procedures by a complainant 

or respondent. 

The Department’s tentative position is 

that the procedures described in 

proposed § 106.46(f) and (g) 

appropriately recognize that although 

all postsecondary institutions, 

regardless of their size, type, 

administrative structure, and location, 

must comply with the requirements of 

Title IX, promulgating regulations that 

take into account the diversity of 

postsecondary institutions subject to 

Title IX would best ensure effective 

implementation of Title IX. In view of 

this, proposed § 106.46(g) would permit, 

but not require, all postsecondary 

institutions to hold a live hearing and 

proposed § 106.46(f)(1) would permit, 

but not require, postsecondary 

institutions to use advisor-conducted 

questioning at a live hearing when the 

decisionmaker determines that 

credibility is in dispute and relevant to 

evaluating one or more allegations of 

sex-based harassment. Under this 

approach, a postsecondary institution 

would still be able to hold live hearings 

if it chose to do so and a postsecondary 

institution, including a public 

postsecondary institution located within 

the jurisdiction of the Sixth Circuit 

where, as described above, advisorconducted cross-examination is 

currently required, may use advisorconducted questioning at a live hearing 

under the circumstances articulated by 

the court in Baum. A postsecondary 

institution that opted to hold live 

hearings would, at the request of either 

party, be required to conduct the live 

hearings with the parties in separate 

locations with technology enabling the 

decisionmaker and parties to 

simultaneously see and hear the party or 

the witness while that person is 

speaking or communicating in another 

format. 

Review of relevant case law on crossexamination. As the Department stated 

in the preamble to the 2020 

amendments and as explained in the 

discussion of the Framework for 

Grievance Procedures for Complaints of 

Sex Discrimination (Section II.F), the 

Supreme Court has not ruled on what 

elements are necessary for a public 

postsecondary institution’s Title IX 

sexual harassment grievance procedures 

to satisfy due process of law under the 

U.S. Constitution, and Federal appellate 

courts have taken different approaches 

on this issue in recent years. See 85 FR 

30327. It is important to recognize that 

academic disciplinary proceedings are 

not co-extensive with civil or criminal 

trials. See, e.g., Nash, 812 F.2d at 664 

(‘‘Due process requires that appellants 

have the right to respond, but their 

rights in the academic disciplinary 


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process are not co-extensive with the 

rights of litigants in a civil trial or with 

those of defendants in a criminal 

trial.’’). The Supreme Court and other 

Federal courts have held that there is no 

general right to cross-examine witnesses 

in disciplinary proceedings against 

students at the postsecondary school 

level, even in public institutions. See, 

e.g., Horowitz, 435 U.S. at 86 n.3 

(declining to recognize a right to a 

hearing with the opportunity for crossexamination during student disciplinary 

proceedings considering factors in 

Matthews); Butler v. Rector & Bd. of 

Visitors of Coll. of William & Mary, 121 

F. App’x 515, 520 (4th Cir. 2005) 

(finding ‘‘no basis in law’’ to import the 

right to cross-examine witnesses into 

the academic context); Gorman, 837 

F.2d at 16 (holding that the right to 

unlimited cross-examination is not ‘‘an 

essential requirement of due process in 

school disciplinary cases’’); Nash, 812 

F.2d at 664 (finding that the inability to 

question adverse witnesses in the usual, 

adversarial manner did not result in a 

denial of appellants’ constitutional 

rights to due process). 

Even absent a general right to crossexamination, some courts have held, in 

both public and private postsecondary 

settings, that some method of live crossexamination is required by due process 

and basic fairness when a disciplinary 

charge rests on a witness’s or 

complainant’s credibility. See, e.g., Doe 

v. Univ. of Scis., 961 F.3d 203, 215 (3d 

Cir. 2020) (holding that in a sexual 

assault case that hinges on credibility, 

basic fairness requires the chance to test 

witnesses’ credibility through some 

method of cross-examination, but 

declining ‘‘to prescribe the exact 

method by which a college or university 

must implement these procedures’’); 

Doe v. Univ. of Cincinnati, 872 F.3d 

393, 401 (6th Cir. 2017) (holding that 

accused students must have the right to 

cross-examine adverse witnesses in the 

most serious of cases, such as those 

depending on witness credibility); 

Winnick v. Manning, 460 F.2d 545, 549– 

50 (2d Cir. 1972) (holding that although 

unlimited cross-examination is not an 

essential element of due process in 

college discipline cases, it may be 

required when the resolution of the case 

turns on credibility assessments); Doe v. 

Allee, 30 Cal. App. 5th 1036, 1039 (Ct. 

App. 2019) (holding that in a case in 

which a student faces serious discipline 

for alleged sexual misconduct, and the 

credibility of witnesses is central to the 

adjudication of the charge, fundamental 

fairness requires, at a minimum, that the 

university provide a way for the accused 

to cross-examine those witnesses, 

directly or indirectly, at a hearing where 

the witnesses appear in person or by 

other means). As explained in the 

discussion of the case law regarding 

cross-examination and due process and 

in the preamble to the 2020 

amendments, the Sixth Circuit held in 

Baum that when a student is accused of 

misconduct, the university must hold 

some sort of hearing before imposing a 

sanction as serious as expulsion or 

suspension and if credibility is in 

dispute and material to the outcome, the 

hearing must include an opportunity for 

cross-examination. 903 F.3d at 581–84. 

The Department notes, however, that 

the Sixth Circuit did not consider 

whether examination by a neutral party 

(at either a live hearing or in separate 

meetings with the parties) would be 

sufficient to satisfy its view of 

constitutional due process. See Haidak, 

933 F.3d at 69–70. 

Following the Sixth Circuit’s decision 

in Baum, courts outside of the Sixth 

Circuit have generally held that even if 

there is a right to cross-examination in 

certain disciplinary cases, that right can 

be satisfied through indirect 

questioning—such as allowing parties to 

propose questions to be asked by a 

neutral actor—in both the public and 

private university setting. See, e.g., 

Univ. of Ark.-Fayetteville, 974 F.3d at 

867–68 (rejecting due process challenge 

when the accused student was 

permitted to submit questions to the 

hearing panel and the hearing panel had 

discretion about whether to pose the 

questions to witnesses); Haidak, 933 

F.3d at 69 (holding that in the university 

disciplinary setting, due process may 

require some opportunity to confront 

the complaining witness, but that this 

confrontation need not be done by the 

accused student or that student’s 

representative); Lee v. Univ. of N.M., 

500 F. Supp. 3d 1181, 1241–42 (D.N.M. 

2020) (finding that the Due Process 

Clause does not require postsecondary 

institutions to permit respondents to 

personally confront complainants even 

when credibility is at issue); Gendia v. 

Drexel Univ., No. 20–1104, 2020 WL 

5258315, at *5 (E.D. Pa. Sept. 2, 2020) 

(finding that the university satisfied the 

requirements for fundamental fairness 

when it allowed the parties to submit 

cross-examination questions to the 

adjudicator); Haas, 427 F. Supp. 3d at 

350–51 (declining to find a due process 

violation when the plaintiff was not 

allowed to personally cross-examine his 

accuser and noting that the Sixth 

Circuit’s holding in Baum was not 

binding on the court). In addition, in 

Doe v. Trustees of Boston College, 942 

F.3d 527, 535 (1st Cir. 2019), the U.S. 

Court of Appeals for the First Circuit 

rejected a fundamental fairness 

challenge to a one-year suspension for 

sexual assault imposed upon a student 

without the use of any form of live 

questioning. The First Circuit held that 

the private college’s basic fairness 

obligation did not require the school to 

provide an adjudicatory hearing process 

or even a process at which both parties 

are present and have the opportunity to 

suggest questions to be asked of the 

other in real time. Id. at 534. 

The Department notes that a few 

district courts outside of the Sixth 

Circuit recently have cited Baum to 

support their holdings, but it is unclear 

from these decisions whether these 

courts would have held that such a right 

could be satisfied by indirect crossexamination at a live hearing or in 

separate meetings with the parties. See, 

e.g., Doe v. Univ. of Conn., No. 

3:20cv92, 2020 WL 406356, at *5 (D. 

Conn. Jan. 23, 2020) (noting that courts 

have reached different conclusions as to 

whether the accused has a right to crossexamine witnesses in the traditional 

manner, referencing Baum, and holding 

that in this credibility case involving a 

severe sanction, the plaintiff was likely 

to succeed on his due process claim 

because he did not have the opportunity 

to question or confront two of the 

witnesses on whose statements the 

hearing officers relied); Norris v. Univ. 

of Colo., Boulder, 362 F. Supp. 3d 1001, 

1020 (D. Colo. 2019) (referring to the 

holding in Baum, noting that the Tenth 

Circuit has not so opined, but finding 

that the absence of a full hearing with 

cross-examination supports a claim for 

a violation of plaintiff’s due process 

rights); Univ. of Miss., 361 F. Supp. at 

611–13 (in refusing to grant the 

university’s motion to dismiss and thus 

declining to reject the Sixth Circuit’s 

approach to cross-examination in Baum, 

the court found that plaintiff pleaded 

enough facts to permit discovery as to 

whether there was a procedural due 

process violation because, inter alia, the 

plaintiff was not permitted to crossexamine his accuser or other witnesses 

either directly or through written 

questions because none of them 

appeared at the hearing). District courts 

in the Sixth Circuit have also extended 

the holding in Baum from student 

disciplinary proceedings to the 

employment context. See, e.g., Smock v. 

Bd. of Regents of Univ. of Mich., 353 F. 

Supp. 3d 651, 657 (E.D. Mich. 2018) 

(applying Baum’s cross-examination 

requirement to a university professor’s 

pre-deprivation hearing for alleged 

misconduct); Frost v. Univ. of Louisville, 


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392 F. Supp. 3d 793, 804–06 (W.D. Ky. 

2019) (same). 

After reevaluating this issue, 

including cases decided both before and 

after the promulgation of the 2020 

amendments, it is the Department’s 

tentative position that the relevant case 

law does not require a postsecondary 

institution to provide for a live hearing 

with advisor-conducted crossexamination in all cases, at least as long 

as it provides another live method of 

determining credibility. As noted, the 

proposed regulations would permit a 

postsecondary institution to employ 

live, advisor-conducted crossexamination when applicable case law 

or other sources of law require that 

approach or the postsecondary 

institution uses its discretion to choose 

that approach. The Department further 

notes that each permissible option for 

evaluating the allegations and assessing 

credibility under the proposed 

regulations would require that the 

questions posed be answered live, 

whether in individual meetings with the 

decisionmaker or investigator or at a 

live hearing. 

Scholarship on cross-examination. 

The preamble to the 2018 NPRM and 

2020 amendments, as well as the Baum 

court, referred to case law describing 

cross-examination as the greatest legal 

engine ever invented for the discovery 

of truth. The Department recognizes, 

however, that while that statement is 

oft-repeated, notable research from the 

last several decades has called into 

question whether adversarial crossexamination is the most effective tool 

for truth-seeking in the context of sexbased harassment complaints involving 

students at postsecondary institutions. 

In particular, there is growing 

evidence to suggest that ‘‘adults who 

have been sexually victimized may be a 

particularly vulnerable group of 

witnesses overall,’’ especially during 

cross-examination. Rachel Zajac & Paula 

Cannan, Cross-Examination of Sexual 

Assault Complainants: A 

Developmental Comparison, 16 

Psychiatry, Psych., & L. S36, S38 (2009) 

(citations omitted). For example, sexual 

assault has been associated with low 

self-esteem and low self-confidence, 

which have been shown to increase a 

person’s vulnerability to suggestion. Id. 

Adults who have been sexually 

victimized are also least likely to exhibit 

confidence, powerful speech, and 

perseverance in maintaining control of a 

verbal exchange, which are the 

attributes most favorable to adult 

witnesses. Id. (citations omitted). 

In addition, studies have found that 

information-gathering approaches such 

as questions asked in individual 

meetings instead of during a live 

hearing (sometimes described as 

inquisitorial procedures) are more likely 

to produce the truth than adversarial 

methods like cross-examination. These 

studies ‘‘suggested that inquisitorial 

procedures may result in the 

presentation of more accurate and less 

biased information.’’ Mark R. Fodacaro 

et al., Reconceptualizing Due Process in 

Juvenile Justice: Contributions from Law 

and Social Science, 57 Hastings L.J. 955, 

982, 982 n.165 (2006) (citing E. Allan 

Lind & Tom R. Tyler, The Social 

Psychology of Procedural Justice 25 

(1988)); see also Christopher Slobogin, 

Lessons from Inquisitorialism, 87 S. Cal. 

L. Rev. 699, 711 (2014). Because nonadversarial information gathering 

approaches tend to reduce opportunities 

for bias, researchers have found that 

such methods are ‘‘most likely to 

produce truth.’’ John Thibaut & Laurens 

Walker, A Theory of Procedure, 66 Calif. 

L. Rev. 541, 547 (1978). 

The Department recognizes that some 

courts, advocates, and legal scholars 

believe that advisor-conducted crossexamination is the most effective way, 

and in the view of some, the only way, 

to ensure the accuracy of witness 

testimony, especially in cases that hinge 

on credibility. After reevaluating the 

issue, however, including the case law 

and research discussed above, the 

Department’s tentative position is that 

methods that require parties and 

witnesses to answer questions in a live 

format, other than advisor-conducted 

cross-examination during a live hearing, 

can provide an effective way to seek the 

truth in sex-based harassment cases 

involving postsecondary students and 

ensure that the parties have a 

meaningful opportunity to be heard. For 

this reason, to the extent credibility is 

in dispute and relevant to evaluating 

one or more allegations of sex-based 

harassment, proposed § 106.46(f)(1) 

would permit a postsecondary 

institution to have the decisionmaker 

ask the parties and witnesses relevant 

questions and follow-up questions, 

including questions challenging 

credibility. Proposed § 106.46(f)(1) 

would permit the decisionmaker to do 

this during individual meetings with the 

parties or at a live hearing. Proposed 

§ 106.46(f)(1) would also allow each 

party to propose to the decisionmaker or 

investigator relevant questions and 

follow-up questions, including those 

challenging credibility that they want 

asked of any party or witness and have 

those questions asked, subject to the 

requirement in proposed § 106.46(f)(3), 

during individual meetings with the 

parties or at a live hearing, in addition 

to permitting any postsecondary 

institution that so chooses, to use 

advisor-conducted cross-examination. 

The Department’s tentative view is that 

any benefit that adversarial crossexamination may have over other 

methods of live questioning is not 

sufficient to justify mandating that all 

postsecondary institutions permit 

adversarial cross-examination in every 

case, either as a matter of due process 

or fundamental fairness or of 

effectuating Title IX’s 

nondiscrimination mandate, in light of 

the considerable costs imposed by 

adversarial cross-examination, 

particularly in the context of allegations 

of sex-based harassment. 

As explained in the discussion of 

proposed § 106.46(f)(1), regardless of 

format, this credibility assessment, if 

needed to evaluate one or more 

allegations of sex-based harassment, 

would have to take place prior to the 

decisionmaker determining whether 

sex-based harassment occurred. The 

decisionmaker must determine whether 

a proposed question is relevant prior to 

the question being posed and explain 

any decision to exclude a question as 

not relevant. If a decisionmaker 

determines that a party’s question is 

relevant and not otherwise 

impermissible, then the question must 

be asked; however, a postsecondary 

institution must not permit questions 

that are unclear or harassing of the party 

being questioned. A postsecondary 

institution would also retain discretion 

to impose other reasonable rules 

regarding decorum, provided they apply 

equally to the parties. The Department 

anticipates that the requirements in 

proposed § 106.46(f)(1) would provide 

an effective means for assessing 

credibility and seeking the truth while 

avoiding some of the deficiencies or 

drawbacks that may be associated with 

requiring advisor-conducted crossexamination in all sex-based harassment 

cases and for all types of postsecondary 

institutions. The Department notes that 

proposed § 106.46(e)(6)(i) would require 

a postsecondary institution to either 

provide the parties with equitable 

access to the relevant and not otherwise 

impermissible evidence or to the same 

investigative report that accurately 

summarizes this evidence. This 

evidence or investigative report would 

include a discussion of the evidence 

obtained through questioning of the 

parties and witnesses by the 

decisionmaker. In addition, although 

not required to do so, nothing in 

proposed § 106.46(f) would prohibit a 

postsecondary institution from 

compiling a transcript of questioning of 


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the parties and witnesses by the 

decisionmaker and providing a copy of 

the transcript to the parties. 

Under proposed § 106.46(f)(1), a 

postsecondary institution would have 

discretion to structure its processes for 

enabling the decisionmaker to 

adequately assess the credibility of the 

parties and witnesses to the extent 

credibility is both in dispute and 

relevant to evaluating one or more 

allegations of sex-based harassment as 

long as the process complies with the 

requirements set out in proposed 

§ 106.46(f)(1) and (3). For example, 

some postsecondary institutions may 

decide to have the decisionmaker ask 

their questions and the parties’ 

questions of any party and witnesses 

during individual meetings. Other 

postsecondary institutions may decide 

to hold a live hearing in which a 

decisionmaker poses their own 

questions and follow-up questions to 

the parties and also asks questions and 

follow-up questions of each party and 

witnesses that were proposed by the 

other party. In all instances, a 

postsecondary institution would not be 

permitted to have grievance procedures 

in which the questions and answers 

would be provided in writing. Although 

the discussion here refers to witnesses, 

the Department recognizes that not all 

grievance procedures will involve 

witnesses in addition to the parties. 

Notwithstanding the research 

discussed above regarding the potential 

deficiencies of advisor-conducted crossexamination as a truth-seeking tool, 

some postsecondary institutions may 

view it as the most effective means to 

assess credibility in certain cases and 

may choose to use it or may be required 

to use it based on the jurisdiction in 

which they are located. To 

accommodate these postsecondary 

institutions, proposed § 106.46(f)(1) 

would permit a postsecondary 

institution to use advisor-conducted 

questioning at a live hearing to satisfy 

the requirement in proposed 

§ 106.46(f)(1) regarding a process for 

assessing credibility. During this 

questioning, the party’s advisor would 

be permitted to ask any party and any 

witnesses all relevant questions and 

follow-up questions, including those 

challenging credibility, subject to the 

requirements in proposed § 106.46(f)(3), 

which are discussed above. 

When credibility is not in dispute. 

Courts, including the Sixth Circuit in 

Baum, have held that there are 

situations in which cross-examination is 

unwarranted. These include, for 

example, situations in which the 

respondent admits to engaging in the 

misconduct, in which a recipient 

reaches a decision based on evidence 

other than the complainant’s statements, 

and in which the respondent waives 

their right to a hearing. See, e.g., Doe v. 

Case W. Rsrv. Univ., 809 F. App’x 276, 

281–82 (6th Cir. 2020) (noting that the 

Sixth Circuit has yet to decide whether 

the right to cross-examination exists in 

Title IX proceedings conducted by a 

private university when credibility is at 

issue and holding that the plaintiff 

waived any right to cross-examination 

when he stated that he did not want any 

witnesses and selected the sole 

administrator hearing that did not allow 

for the presentation of evidence or 

cross-examination of witnesses); Baum, 

903 F.3d at 584 (explaining that if a 

student admits to engaging in 

misconduct cross-examination is 

unnecessary because there is little to be 

gained by adversarial questioning when 

the accused student has already 

confessed); Plummer, 860 F.3d at 775– 

76 (holding that accused students had 

no right to cross-examination when the 

defendant university did not rely on 

testimonial evidence from the alleged 

victim); Winnick, 460 F.2d at 549–50 

(even assuming the right to confront 

witnesses may be essential in some 

disciplinary hearings, due process did 

not require cross-examination in this 

case, because, inter alia, credibility was 

not at issue because the plaintiff 

admitted to the crucial fact at issue in 

the case); Doe v. Univ. of Neb., 451 F. 

Supp. 3d 1062, 1123 (D. Neb. 2020) 

(holding that while some courts have 

recently held that a state-college student 

facing expulsion for alleged sexual 

misconduct has the right under the 

Fourteenth Amendment to confront and 

cross-examine their accuser when 

credibility is material to the outcome, 

no such right exists when the accused 

admits to engaging in the misconduct); 

Flor v. Univ. of N.M., 469 F. Supp. 3d 

1143, 1153–54 (D.N.M. 2020) (holding 

that no right to cross-examination 

existed in this case because the 

university did not rely on the accuser’s 

statements in concluding that the 

plaintiff violated university policy and 

instead relied on communications 

between the plaintiff and the accuser 

and plaintiff did not challenge the 

authenticity of those communications). 

In these situations, a recipient would 

not be required to implement its process 

required under proposed § 106.46(f)(1) 

for enabling the decisionmaker to 

adequately assess the credibility of the 

parties and witnesses because 

credibility is not in dispute and is not 

relevant to evaluating the allegations. 

Removing the prohibition on 

statements not subject to crossexamination. On July 28, 2021, the 

United States District Court for the 

District of Massachusetts issued a 

decision in Victim Rights Law Center et 

al. v. Cardona vacating the language in 

current § 106.45(b)(6)(i) prohibiting a 

decisionmaker from relying on any 

statement of a party or witness who 

does not submit to cross-examination at 

a live hearing in reaching a 

determination regarding responsibility. 

552 F. Supp. 3d 104, 134 (D. Mass. 

2021), order clarified, No. 20–11104– 

WGY, 2021 WL 3516475, at *1 (D. Mass. 

Aug. 10, 2021), appeals filed, Nos. 21– 

1773, 21–1777, 21–1782, 21–1783, 21– 

1784, 21–1853 (1st Cir. 2021). The court 

found that the vacated language was 

arbitrary and capricious, concluding 

that the Department ‘‘failed to consider 

the consequences of § 106.45(b)(6)(i)’s 

prohibition on statements not subject to 

cross-examination in conjunction with 

other challenged provisions.’’ 552 F. 

Supp. 3d at 132. The court discussed 

that nothing in the 2020 amendments 

would prevent a respondent from 

working with the school to schedule the 

live hearing at an inconvenient time for 

third-party witnesses and the 

respondent may choose not to attend the 

hearing to avoid the possibility of selfincrimination, and the respondent may 

speak freely about the investigation to 

collect evidence or persuade other 

witnesses not to attend the hearing as 

long as this is not done in a ‘‘tortious 

or retaliatory manner.’’ Id. at 132–33. 

The court explained that when the 

prohibition on statements not subject to 

cross-examination is applied under such 

circumstances and a recipient applies 

the clear and convincing evidence 

standard, it is hard to ‘‘imagine how a 

complainant reasonably could overcome 

the presumption of non-responsibility 

[in the current regulations] to attain 

anything beyond the supportive 

measures that he or she is offered when 

they first file the formal complaint.’’ Id. 

at 133. The court further explained that 

it was striking down this prohibition not 

because this result is manifestly 

unreasonable, but because ‘‘nothing in 

the administrative record demonstrates 

that the Department was aware of this 

result, considered its possibility, or 

intended this effect’’ and ‘‘the 

construction of the [2020 amendments] 

suggests that the Department failed even 

implicitly to recognize this result.’’ Id. 

A party that the court gave leave to 

intervene has appealed the court’s 

judgment vacating the language in 

current § 106.45(b)(6)(i) and plaintiffs 

have also appealed the court’s 

judgment. Those appeals are currently 


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pending with the U.S. Court of Appeals 

for the First Circuit. 

The Department proposes revisions to 

the language in current § 106.45(b)(6)(i) 

that was vacated by the U.S. District 

Court of Massachusetts. The Department 

recognizes that the language in current 

§ 106.45(b)(6)(i) placing limitations on 

the decisionmaker’s ability to consider 

statements not subject to crossexamination was vacated by the district 

court and is thus no longer part of the 

current regulations. The Department is 

concerned, however, that placing no 

limitations on the decisionmaker’s 

ability to consider statements made by 

a party who does not submit to a 

credibility assessment could lead to 

manipulation by the parties. For 

example, if there were no limitations 

placed on the decisionmaker’s ability to 

consider prior statements from parties 

who do not submit to a credibility 

assessment, a complainant could write 

an email to a friend and leave a 

voicemail for another friend detailing 

the events related to the alleged sexbased harassment. If the complainant 

refused to submit to a credibility 

assessment, the decisionmaker would be 

permitted to consider the email and 

voicemail for their truth, but the 

respondent would not have an 

opportunity to question the 

complainant, including to assess 

credibility. This same result could also 

occur if a respondent writes an email to 

a friend and leaves a voicemail for 

another friend detailing the events in 

question and then refuses to submit to 

a credibility assessment. Under 

proposed § 106.46(f)(4), if a party does 

not respond to questions related to their 

own credibility, the decisionmaker 

would be prohibited from relying on 

any statement of that party that supports 

that party’s position. The Department’s 

proposed language is intended to avoid 

situations like that described above in 

which a party could avoid responding to 

questions related to their own 

credibility and the decisionmaker 

would have to consider prior statements 

made by that party that support that 

party’s position. It would apply when a 

party refuses to answer questions 

related to their own credibility either 

during the investigation in individual 

meetings with the decisionmaker or 

investigator or during the live hearing, 

if the postsecondary institution holds a 

live hearing. The Department would 

propose this change regardless of 

whether the district court’s vacatur is 

ultimately upheld on appeal. 

The Department also proposes 

incorporating language similar to 

current § 106.45(b)(6)(i) regarding 

inferences based on a party’s or 

witness’s absence from a live hearing or 

refusal to answer questions related to 

credibility into proposed § 106.46(f)(4). 

Under proposed § 106.46(f)(4), the 

decisionmaker would be prohibited 

from drawing an inference about 

whether sex-based harassment occurred 

based solely on a party’s or witness’s 

absence from a live hearing or refusal to 

respond to questions related to 

credibility, including a refusal to answer 

such questions during a live hearing. 

Incorporation of Requirements From the 

2020 Amendments 

Live hearing logistics. As explained in 

the summary of proposed § 106.46(g), 

the Department proposes incorporating 

the requirement from current 

§ 106.45(b)(6)(i) into proposed 

§ 106.46(g) so that if a postsecondary 

institution chooses to conduct a live 

hearing under proposed § 106.46(g), it 

may conduct the live hearing with the 

parties physically present in the same 

geographic location, but at the 

postsecondary institution’s discretion or 

upon the request of either party, it 

would conduct the live hearing with the 

parties physically present in separate 

locations with technology enabling the 

decisionmaker and parties to 

simultaneously see and hear the party or 

the witness while that person is 

speaking or communicating in another 

format. Participating from separate 

locations would include virtually 

participating from separate locations or 

participating while physically present 

but in separate rooms on the 

postsecondary institution’s campus. The 

Department also proposes incorporating 

into proposed § 106.46(g) the 

requirement in current § 106.45(b)(6)(i) 

that a postsecondary institution create 

an audio or audiovisual recording, or 

transcript, of any live hearing and make 

it available to the parties for inspection 

and review. Nothing in the proposed 

regulations would prohibit a recipient 

from imposing rules that restrict the 

parties from creating their own 

recording. Proposed § 106.46(g) would 

not impose specific requirements 

regarding how a recipient provides the 

recording or transcript to the parties for 

inspection and review and it is up to 

each recipient to determine how to 

fulfill this requirement and whether to 

also provide a copy of the recording or 

transcript to the parties. As explained in 

the discussion of proposed 

§ 106.45(b)(1), a recipient’s grievance 

procedures must treat complainants 

promptly and equitably, which may 

require certain considerations when the 

parties, witnesses, or other hearing 

participants are persons with 

disabilities or persons with limited 

English proficiency. When conducting a 

live hearing, it may be necessary for a 

recipient to provide auxiliary aids and 

services to persons with disabilities who 

are participating in the hearing. In 

addition, it may be necessary for a 

recipient to provide language assistance 

services, such as translations or 

interpretation, for persons with limited 

English proficiency who are 

participating in the hearing. 

Ability of the parties to propose 

questions and the recipient’s obligation 

to make relevance determinations. 

Current § 106.45(b)(6)(ii) requires 

recipients that are elementary and 

secondary schools, and other recipients 

that are not postsecondary institutions 

to afford each party the opportunity to 

submit written, relevant questions that a 

party wants asked of any party or 

witness, provide each party with the 

answers, and allow for additional, 

limited follow-up questions from each 

party. As explained in the summary of 

proposed § 106.45(f)(3), proposed 

§ 106.46(f)(3) would impose a similar 

obligation on postsecondary institutions 

by requiring them to allow each party to 

propose to the decisionmaker or 

investigator relevant and not otherwise 

impermissible questions that they want 

asked of any party or witness and have 

those questions subject to the 

requirements in proposed § 106.46(f)(3). 

Proposed § 106.46(f)(3) would include 

the requirement from current 

§ 106.45(b)(6)(i) and (ii) that the 

decisionmaker determine whether a 

proposed question is relevant prior to 

the question being posed and explain 

any decision to exclude a question as 

not relevant. 

Advisor-conducted questioning. When 

a postsecondary institution chooses to 

use advisor-conducted questioning at a 

live hearing, proposed § 106.46(f)(1)(ii) 

would incorporate the language from 

current § 106.45(b)(6)(i) requiring: (1) 

the recipient to permit each party’s 

advisor to ask the other party and any 

witnesses all relevant questions and 

follow-up questions, including those 

challenging credibility; (2) the 

decisionmaker to determine whether the 

proposed question is relevant and 

explain any decision to exclude a 

question as not relevant before a party 

or witness answers a question; and (3) 

the postsecondary institution to provide 

the party with an advisor of the 

postsecondary institution’s choice, who 

may be but is not required to be an 

attorney, without charge to the party, for 

the purpose of advisor-conducted 

questioning if a party does not have an 

advisor who can ask questions on their 

behalf. 


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Relevance. Current § 106.45(b)(6)(i) 

and (ii) limit questions during advisorconducted cross-examination and 

written cross-examination to those that 

are relevant and state that questions and 

evidence about the complainant’s sexual 

predisposition or prior sexual behavior 

are not relevant, unless such questions 

and evidence about the complainant’s 

prior sexual behavior are offered to 

prove that someone other than the 

respondent committed the conduct 

alleged by the complainant, or if the 

questions and evidence concern specific 

incidents of the complainant’s prior 

sexual behavior with respect to the 

respondent and are offered to prove 

consent. Although the language in 

proposed § 106.46(f)(1) and (3) would 

not explicitly refer to the complainant’s 

sexual predisposition or prior sexual 

behavior, the same limitations regarding 

those concepts would be incorporated 

into those proposed provisions. These 

limitations are explained in greater 

detail in the discussion of the proposed 

definition of ‘‘relevant’’ (§ 106.2) and 

the discussion of relevant evidence and 

evidence that is impermissible 

regardless of relevance in proposed 

§ 106.45(b)(7). 

Additional Clarifications in the 

Proposed Regulations 

Questions that are unclear or 

harassing and other rules regarding 

decorum. Although the 2020 

amendments do not address unclear or 

harassing questions, or rules of decorum 

in the regulatory text, the Department 

stated in the preamble to the 2020 

amendments that a recipient may adopt 

rules of decorum and noted that a 

recipient is better positioned than the 

Department to adopt rules of decorum 

that are tailored to its educational 

community. See 85 FR 30319. The 

Department also stated that a recipient 

may prohibit advisors from questioning 

parties or witnesses in an abusive, 

intimidating, or disrespectful manner 

and may require a party to use a 

different advisor if the party’s advisor 

refuses to comply with the school’s 

rules of decorum. See, e.g., id. at 30319– 

20, 30324, 30331, 30342, 30361. For 

example, the Department explained that 

if a party’s advisor of choice yells at 

others in violation of a school’s rules of 

decorum, the school may remove the 

advisor and require a replacement. See, 

e.g., id. at 30320, 30324, 30342. The 

school has this authority even when the 

advisor is asking a question that is 

relevant to the hearing. If the manner in 

which an advisor attempts to ask the 

question is harassing, intimidating, or 

abusive (e.g., advisor yells, screams, or 

approaches a witness in an intimidating 

manner), the preamble explained that a 

school may enforce a rule requiring that 

relevant questions must be asked in a 

respectful, non-abusive manner. See id. 

The Department further stated that 

nothing in the 2020 amendments 

prohibits a recipient from applying a 

rule that duplicative questions are 

irrelevant, or from imposing rules of 

decorum that require questions to be 

asked in a respectful manner as long as 

it applies those rules clearly, 

consistently, and equally to the parties. 

See id. at 30331. 

The Department’s tentative position is 

that it is important to explicitly require 

in the regulatory text that a 

postsecondary institution prohibit 

questions that are unclear or harassing 

of the party being questioned because a 

proceeding in which questions are 

unclear or harassing is not an equitable 

proceeding and not one likely to 

produce accurate information needed 

for evaluating the allegations of sexbased harassment and assessing 

credibility which impacts the 

postsecondary institution’s ability to 

determine whether sex-based 

harassment occurred and effectuate 

Title IX’s nondiscrimination mandate. A 

question would be unclear if it is vague 

or ambiguous such that it would be 

difficult for the decisionmaker or the 

party being asked to answer the 

question to discern what the question is 

about. For example, some of the key 

words in the question may have more 

than one meaning, or the period of time 

to which the question refers to may be 

unclear. Under the proposed 

regulations, a postsecondary institution 

would be permitted to request that the 

party or party’s advisor rephrase any 

questions that do not comply with these 

requirements. Permitting a 

postsecondary institution to impose 

other reasonable rules of decorum as 

long as it applies them equally to the 

parties and their advisors is consistent 

with current § 106.45(b) and proposed 

§ 106.45(i), which would permit a 

postsecondary institution to adopt 

additional provisions as part of its 

grievance procedures as long as they 

apply equally to the parties, and would 

also assist it in crafting procedures that 

are designed to accurately assess 

credibility and are also equitable for the 

parties. For these reasons, the 

Department included language in 

proposed § 106.46(f)(3) to make clear 

that a postsecondary institution must 

prohibit questions that are unclear or 

harassing of the party being questioned 

and to permit a postsecondary 

institution to impose other reasonable 

rules regarding decorum. In addition, 

when considering what other reasonable 

rules of decorum to impose, if any, a 

postsecondary institution should be 

aware of current § 106.6(d), which the 

Department is not proposing to revise. 

Current § 106.6(d) states that nothing in 

the Title IX regulations require a 

recipient to restrict any rights that 

would otherwise be protected from 

government action by the First 

Amendment of the U.S. Constitution. 

Section 106.46(h) Determination of 

Whether Sex-Based Harassment Has 

Occurred 

Current regulations: Section 

106.45(b)(7) requires a recipient to issue 

a written determination regarding 

responsibility, applying the standard of 

evidence described in current 

§ 106.45(b)(1)(vii). In this written 

determination, a recipient must include: 

identification of the allegations 

potentially constituting sexual 

harassment; a description of the 

procedural steps taken from the receipt 

of the formal complaint through the 

determination; findings of fact 

supporting the determination; 

conclusions regarding the application of 

the recipient’s code of conduct to the 

facts; a statement of, and rationale for, 

the result as to each allegation including 

a determination regarding 

responsibility, any disciplinary 

sanctions the recipient imposes on the 

respondent, and whether remedies will 

be provided by the recipient to the 

complainant; and the recipient’s 

procedures and permissible bases for 

appeal. Current § 106.45(b)(7) also 

requires that the recipient provide this 

written determination to the parties 

simultaneously; that the Title IX 

Coordinator is responsible for effective 

implementation of any remedies; and 

provides information about when the 

determination regarding responsibility 

becomes final. 

Proposed regulations: The 

Department proposes reorganizing the 

requirements from the current 

regulatory provision at § 106.45(b)(7) 

into §§ 106.45(b)(2), 106.45(h) and 

106.46(h), with strengthened protections 

for the parties and additional changes so 

that this provision is consistent with 

other revisions proposed throughout the 

regulations. 

In addition to the requirements of 

proposed § 106.45(h), which would 

apply to all complaints of sex 

discrimination, postsecondary 

institutions would have to comply with 

proposed § 106.46(h) in the context of 

complaints of sex-based harassment 

involving a student complainant or 

student respondent. Proposed 

§ 106.46(h) would remove the current 


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8As discussed in the 2020 amendments, ‘‘if a 

party disagrees with a decisionmaker’s relevance 

determination, the party has the opportunity to 

challenge the relevance determination on appeal’’ 

on the basis of procedural irregularity if the 

relevance determination affected the outcome. 85 

FR 30349 n.1340. 

reference to the postsecondary 

institution’s code of conduct and 

impose additional requirements 

regarding written communications with 

the parties. A postsecondary institution 

would have to provide a written 

determination simultaneously to the 

parties. The written determination 

would have to include a description of 

the alleged sex-based harassment; 

information about the policies and 

procedures the postsecondary 

institution used to evaluate the 

allegations; the decisionmaker’s 

evaluation of the relevant evidence and 

determination as to whether sex-based 

harassment occurred; whether the 

decisionmaker has found that sex-based 

harassment occurred; any disciplinary 

sanctions to be imposed on the 

respondent; whether remedies other 

than the imposition of disciplinary 

sanctions will be provided to the 

complainant, and, to the extent 

appropriate, other students identified to 

or by the postsecondary institution to be 

experiencing the effects of the sex-based 

harassment; and the postsecondary 

institution’s procedures for an appeal. 

Reasons: Following an investigation 

as set out in proposed § 106.46(e), (f), 

and (g), a postsecondary institution 

would have to provide the 

determination of whether sex-based 

harassment occurred in writing to the 

parties simultaneously. 

The Department also proposes 

revisions to improve overall clarity and 

to make § 106.46(h) consistent with 

other changes in the regulations. 

Proposed § 106.46(h)(1)(ii) would clarify 

that a postsecondary institution must 

include information about the policies 

and procedures that it used to evaluate 

the allegations in the complaint. The 

proposed regulations also would clarify 

at § 106.46(h)(1)(iii) that the written 

determination must provide the 

decisionmaker’s evaluation of relevant 

evidence and determination as to 

whether sex-based harassment occurred. 

This would consolidate and simplify the 

current regulations’ separate 

requirements at § 106.45(b)(7)(ii)(C) and 

(E) that the postsecondary institution 

provide findings of fact supporting its 

determination and provide a statement 

of, and the rationale for, the result as to 

each allegation, including the 

postsecondary institution’s 

determination regarding responsibility. 

The Department anticipates that this 

consolidated requirement would 

provide the parties with a more useful 

explanation of how a recipient reached 

its determination than as required under 

the current regulations, and would 

render unnecessary the current 

requirement to provide the ‘‘conclusions 

regarding the application of the 

recipient’s code of conduct to the facts,’’ 

at § 106.45(b)(7)(ii)(D). 

Further, the Department proposes that 

providing this determination in writing 

regarding sex-based harassment is 

appropriate in light of the particular 

circumstances of postsecondary 

students, as explained in the discussion 

of proposed § 106.46 (Section II.F.2.c), 

and the requirement that a recipient not 

discriminate based on sex in its 

education program or activity. 

Section 106.46(i) Appeals 

Current regulations: Section 

106.45(b)(8) requires a recipient to offer 

both parties an appeal from a 

determination regarding responsibility, 

and from a recipient’s dismissal of a 

formal complaint or any allegations 

therein on the bases of procedural 

irregularity, new evidence not 

reasonably available at the time, or 

conflict of interest or bias on the part of 

the Title IX Coordinator, investigator, or 

decisionmaker. 

Proposed regulations: The 

Department proposes preserving current 

§ 106.45(b)(8) at proposed § 106.46(i), 

including the clarification that an 

appeal must be offered from a 

postsecondary institution’s dismissal of 

any complaint or any allegations in a 

complaint. Proposed § 106.46(i) would 

state that, in addition to complying with 

the requirements in proposed 

§ 106.45(d)(3), a postsecondary 

institution must offer the parties an 

appeal from a determination that sexbased harassment occurred, and from a 

postsecondary institution’s dismissal of 

a complaint or any allegations therein. 

Proposed § 106.46(i) would provide 

required grounds for appeal: (i) 

procedural irregularity that would 

change the determination in the matter; 

(ii) new evidence that would change the 

outcome of the matter and was not 

reasonably available at the time the 

recipient dismissed the complaint or 

determined that sex-based harassment 

occurred; and (iii) conflict of interest or 

bias for or against complainants or 

respondents or the individual 

complainant or respondent by the Title 

IX Coordinator, investigator, or 

decisionmaker that would change the 

outcome of the matter. Consistent with 

the current regulations, if a 

postsecondary institution were to offer 

an appeal on additional bases, proposed 

§ 106.46(i)(2) would require that 

postsecondary institution to offer that 

right to appeal equally to the parties and 

ensure those additional bases are 

available to all parties. In addition, the 

Department proposes to require the 

postsecondary institution to comply in 

writing with the requirements in 

proposed § 106.45(d)(3)(i), (iv), and (v). 

Reasons: It is the Department’s 

tentative view that the current 

regulatory text should be retained 

concerning postsecondary institutions 

in grievance procedures involving 

postsecondary students and concerning 

the required bases for appeal, with a 

small number of revisions that reflect 

other proposed changes to the Title IX 

regulations. Further, as discussed in 

proposed § 106.45(d)(3), this right to 

appeal also requires robust protections 

such as training for appeal 

decisionmakers on how to serve 

impartially, including by avoiding bias, 

conflicts of interest, and prejudgment of 

the facts at issue; strict separation of the 

appeal decisionmakers from those who 

investigated and adjudicated the 

underlying case to reinforce 

independence and neutrality; and a 

reasonable, equivalent opportunity for 

the parties to participate in the appeals 

process. 

The proposed regulations would also 

maintain, for postsecondary students in 

proposed § 106.46(i), the right to appeal 

to a different decisionmaker as an 

additional safeguard designed to protect 

the integrity of the process. It is the 

Department’s current position that 

appeals can be an ‘‘important 

mechanism to reduce the possibility of 

unfairness or to correct potential errors 

made in the initial responsibility 

determination.’’ 85 FR 30397. Proposed 

§ 106.46(i) would provide the same 

grounds for appeal in cases involving 

postsecondary students as are set out in 

the current regulations on appeals. More 

specifically, under the proposed 

regulations, postsecondary institutions 

in cases involving one or more students 

must offer the right to appeal on any of 

the following bases that may have 

affected the postsecondary institution’s 

determination: (i) a procedural 

irregularity that would have altered the 

determination of whether sex-based 

harassment occurred; 8 (ii) new evidence 

that was not reasonably available at the 

time the determination of whether sexbased harassment occurred or dismissal 

was made; or (iii) if the Title IX 

Coordinator, investigator, or 

decisionmaker had a conflict of interest 

or bias for or against complainants or 

respondents generally, or for or against 

the individual complainant or 

respondent. Nothing in these proposed 


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regulations would preclude a recipient 

from offering additional grounds for 

appeal, as long as they are offered 

equally to all the parties. 

The Department proposes substituting 

‘‘complaint’’ for ‘‘formal complaint’’ 

because the proposed Title IX 

regulations no longer use the term 

‘‘formal complaint,’’ as explained in the 

discussion of the proposed definition of 

‘‘complaint’’ (§ 106.2). 

The Department also proposes 

referring to ‘‘the parties’’ rather than 

‘‘both parties’’ because there may be 

instances in which complaints are 

consolidated and there is more than one 

complainant or respondent in a single 

investigation and hearing. 

Lastly, the Department proposes 

requiring that postsecondary 

institutions fulfill the following 

requirements by communicating with 

the parties in writing: notifying the 

parties when an appeal is filed; 

providing the parties with a reasonable 

and equivalent opportunity to make a 

statement supporting or challenging the 

outcome; and notifying all parties of the 

result of the appeal, and the rationale 

for the result. It is the Department’s 

tentative view that preserving the 

requirements that a postsecondary 

institution must comply with these 

provisions in writing is appropriate in 

light of the particular circumstances of 

postsecondary students, as explained in 

the discussion of proposed § 106.46 

(Section II.F.2.c), and the requirement 

that a recipient not discriminate based 

on sex in its education program or 

activity. 

Section 106.46(j) Informal Resolution 

Current regulations: Section 

106.45(b)(2)(A) requires a recipient, 

upon receipt of a formal complaint, to 

provide written notice of any informal 

resolution process to the parties who are 

known. Current § 106.45(b)(9) also 

requires a recipient to provide a written 

notice to the parties disclosing the 

following: the allegations; the 

requirements of the informal resolution 

process, including the circumstances 

under which it precludes the parties 

from resuming a formal complaint 

arising from the same allegations; the 

fact that at any time prior to agreeing to 

a resolution, any party has the right to 

withdraw from the informal resolution 

process and resume the grievance 

process procedures with respect to the 

formal complaint; and any 

consequences resulting from 

participating in the informal resolution 

process, including the records that will 

be maintained or could be shared. 

Proposed regulations: The 

Department proposes preserving the 

requirements currently in § 106.45(b)(9). 

Proposed § 106.44(k) would set out the 

requirements a recipient would have to 

follow if it chooses to offer an informal 

resolution process. Proposed § 106.46(j) 

would state that if a postsecondary 

institution offers or provides the parties 

to the grievance procedures in proposed 

§§ 106.45 and 106.46, with an informal 

resolution process under proposed 

§ 106.44(k), the postsecondary 

institution must inform the parties in 

writing of the offer and of their rights 

and responsibilities in the informal 

resolution process, and must provide 

the information required under 

proposed § 106.44(k)(3) in writing. 

Reasons: The Department’s tentative 

view is that a recipient should continue 

to retain the discretion to offer the 

parties to a sex discrimination 

complaint, including sex-based 

harassment complaints, an alternative 

option for resolving such complaints. As 

explained in greater detail in the 

discussion of proposed § 106.44(k), the 

Department recognized in the preamble 

to the 2020 amendments that an 

informal resolution process could 

provide greater flexibility to recipients 

in serving their educational 

communities. 85 FR 30403. Further, the 

Department’s current view continues to 

be that a recipient is in the best position 

to determine whether an informal 

resolution process would be a potential 

good fit for the facts and circumstances 

of a particular complaint. 

Finally, the Department proposes that 

preserving the requirements that 

postsecondary institutions must comply 

with these provisions in writing is 

appropriate in light of the particular 

circumstances of postsecondary 

students, as explained in the discussion 

of proposed § 106.46 (Section II.F.2.c), 

and the requirement that a recipient not 

discriminate based on sex it its 

education program or activity. 

I. Assistant Secretary Review 

Section 106.47 Assistant Secretary 

Current regulations: Section 

106.44(b)(2) states that the Assistant 

Secretary will not deem a recipient’s 

determination regarding responsibility 

to be evidence of deliberate indifference 

by the recipient, or otherwise evidence 

of discrimination under Title IX, solely 

because the Assistant Secretary would 

have reached a different determination 

based on an independent weighing of 

the evidence. 

Proposed regulations: The 

Department proposes making minor 

revisions to the language in current 

§ 106.44(b)(2) and moving it to proposed 

§ 106.47. 

Reasons: For clarity, the Department 

proposes moving the language in 

current § 106.44(b)(2), which concerns 

the Assistant Secretary’s review of a 

recipient’s determination of whether 

sex-based harassment occurred, to 

proposed § 106.47. Proposed § 106.44 

would set out actions that a recipient 

must take to operate its education 

program or activity free from sex 

discrimination. Because proposed 

§ 106.47 would describe the Assistant 

Secretary’s approach to reviewing sexbased harassment complaints rather 

than describe requirements for a 

recipient, the Department proposes to 

move current § 106.44(b)(2) to proposed 

§ 106.47. Current § 106.44(b)(2) is 

limited to formal complaints of sexual 

harassment and the Department 

similarly proposes limiting the 

application of proposed § 106.47 to 

complaints of sex-based harassment. 

The Department continues to believe 

that as stated in the preamble to the 

2020 amendments, limiting this 

provision to sex-based harassment 

complaints ‘‘serves the interests of 

complainants and respondents in 

resolving [sex-based] harassment 

allegations, by limiting the 

circumstances under which a ‘final’ 

determination reached by the recipient 

may be subject to being set[ ] aside and 

requiring the parties to go through the 

grievance process for a second time.’’ 85 

FR 30221. In addition, the Department 

notes that as explained in the preamble 

to the 2020 amendments, violations of 

these proposed regulations may result in 

a recipient’s determination whether sexbased harassment occurred being set 

aside by OCR, but determinations will 

not be overturned ‘‘solely’’ because OCR 

would have weighed the evidence 

differently. Id. 

III. Pregnancy and Parental Status 

Statute: Title IX states that ‘‘[n]o 

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 address discrimination 

related to pregnancy or parental status. 

The Department has the authority to 

‘‘effectuate the provisions’’ of the Title 

IX prohibition on 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. 


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A. The 1975 Title IX Regulations 

Related to Pregnancy and Parental 

Status 

As explained in the Background 

discussion of the History of Title IX’s 

Nondiscrimination Mandate and 

Related Regulations, the regulations 

pertaining to pregnancy and parental 

status for students and employees have 

remained consistent since HEW first 

promulgated them in 1975. The 

regulations give effect to Title IX’s 

prohibition on sex discrimination in a 

recipient’s education program or 

activity in two ways. First, the 

Department’s Title IX regulations 

prohibit sex discrimination based on 

pregnancy, childbirth, false pregnancy, 

termination of pregnancy, or recovery 

therefrom, as well as sex-based 

distinctions based on parental, family, 

or marital status. 34 CFR 106.21(c)(1) 

and (2), 106.40(a), 106.40(b)(1), 

106.57(a)(1), and 106.57(b). This 

prohibition ensures that persons are not 

denied or limited in their access to a 

recipient’s program or activity because 

of sex-based stereotypes associated with 

pregnancy, parenting, or marital status. 

Second, current §§ 106.21(c)(3), 

106.40(b)(4), and 106.57(c) require that 

a recipient treat a student or employee’s 

pregnancy or related conditions in the 

same manner with respect to certain 

matters as any other temporary 

disability. The regulations also require a 

recipient to take proactive steps, such as 

providing for leave and reinstatement 

for pregnancy, childbirth, false 

pregnancy, termination of pregnancy, or 

recovery therefrom, without the need to 

show comparable treatment with 

persons with temporary disabilities. 34 

CFR 106.40(b)(5), 106.57(d). These 

provisions in the current regulations 

underscore that Title IX requires a 

variety of implementation strategies if it 

is to serve as a ‘‘strong and 

comprehensive measure,’’ 118 Cong. 

Rec. at 5804 (statement of Sen. Bayh), to 

‘‘achieve[ ] . . . the objective[ ]’’ of 

eliminating sex discrimination in 

federally subsidized education programs 

and activities under 20 U.S.C. 1682, id. 

at 5803. 

B. Need for Clarification Regarding 

Protections Because of Pregnancy and 

Parental Status 

The Title IX regulations regarding 

pregnancy and related conditions have 

remained static for nearly a half century. 

In that time, much has been learned 

about what appropriate standards are 

necessary to afford students and 

employees the ability to learn and work 

while pregnant or experiencing 

pregnancy-related conditions, and about 

what is necessary to ensure that such 

persons are not subject to 

discrimination on the basis of these 

conditions. As explained in greater 

detail in the discussion of the specific 

proposed regulations, the Department 

heard feedback from stakeholders 

through the June 2021 Title IX Public 

Hearing and in meetings held in 2022 

under Executive Order 12866, after the 

NPRM was submitted to OMB, that 

revisions to the Department’s Title IX 

pregnancy regulations are necessary to 

give effect to the statute’s 

nondiscrimination mandate in the 

contemporary educational context. 

Several stakeholders told the 

Department that the regulations are not 

sufficient to ensure full access to 

educational and employment 

opportunities for students and 

employees who are pregnant, 

experiencing pregnancy-related 

conditions, or who have been pregnant. 

They requested that the Department 

address forms of discrimination based 

on pregnancy and related conditions 

that are not currently covered explicitly 

by the regulations, such as 

discrimination based on past pregnancy 

and medical conditions related to 

pregnancy and childbirth, including 

lactation, and clarifying a recipient’s 

obligation to provide reasonable 

modifications to students because of 

pregnancy or related conditions. 

Stakeholders argued that students 

generally may not be aware of their 

rights and urged therefore that 

employees need better training in how 

to support students who are pregnant or 

experiencing pregnancy-related 

conditions. Further, stakeholders 

stressed that when simple modifications 

such as leave for childbirth and 

recovery or intermittent absences for 

lactation were not provided, students 

could face partial or total exclusion 

from education and a loss of future 

economic stability. They also asked that 

the Department strengthen its overall 

nondiscrimination protections for 

discrimination related to parental status, 

which is a particular issue at the 

postsecondary and graduate level, 

where education involves the provision 

of research projects, teaching assistance 

opportunities, and professional 

development opportunities often denied 

to mothers. Overall, stakeholders asked 

that the Department take steps to ensure 

that students are not denied access to a 

recipient’s education program or 

activity because of pregnancy or a 

related condition, or due to sex 

discrimination based on parental status, 

to prevent students from being forced to 

choose between their children and their 

education. 

Discrimination against students and 

employees who are pregnant or 

experiencing pregnancy-related 

conditions, in the Department’s 

experience, often reflects sex 

discrimination, whether based on 

‘‘mutually reinforcing stereotypes’’ 

about the roles of men and women, 

Nevada Dep’t of Hum. Res. v. Hibbs, 538 

U.S. 721, 736 (2003), the failure to 

accommodate conditions associated 

with women as effectively as those 

associated with men, see id. at 730–34, 

or otherwise. Importantly, this sort of 

discrimination can result not only from 

animus, but also from sex-based 

indifference to the needs of this student 

and employee population. Cf. Alexander 

v. Choate, 469 U.S. 287, 295–97 (1985) 

(stating that disability-based 

discrimination is ‘‘most often the 

product, not of invidious animus, but 

rather of thoughtlessness and 

indifference—of benign neglect’’ and 

thus that discrimination can include a 

failure to accommodate). In the 

Department’s view, a policy that 

presents obstacles to the ability of a 

student or employee who is pregnant, 

lactating, or experiencing other 

pregnancy-related conditions to access a 

recipient’s educational program or 

activity may constitute such 

discrimination under Title IX. 

Moreover, precisely because it is 

difficult to specify the counterfactual— 

how accommodating would the school 

have been if the person requesting an 

accommodation had done so for a 

condition associated with men rather 

than women—sex-based discrimination 

regarding pregnancy and related 

conditions will often take the form of 

‘‘subtle discrimination that may be 

difficult to detect on a case-by-case 

basis.’’ Hibbs, 538 U.S. at 736. To 

prevent such discrimination and to 

ensure that pregnancy and related 

conditions are not the vector through 

which sex becomes a barrier to a 

student’s or employee’s participation in 

a recipient’s education program or 

activity, proactive measures are 

necessary to ensure that a recipient 

affords students and employees who are 

pregnant or experiencing pregnancy 

related conditions full access 

throughout their pregnancy and 

recovery. To address these concerns, the 

Department now believes that its 

proposed regulations are necessary and 

appropriate to fully effectuate Title IX’s 

nondiscrimination guarantee for both 

students and employees. See 20 U.S.C. 

1682. 


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9 DOL’s Civil Rights Center enforces Section 188 

of WIOA. Section 188 of WIOA in pertinent part, 

incorporates the prohibitions on discrimination in 

programs and activities that receive Federal 

financial assistance under certain civil rights laws, 

including Title VI, Title IX, and Section 504. 

C. Other Relevant Statutes and Agency 

Interpretations 

Although the proposed regulations are 

exclusively for the purpose of 

implementing Title IX, the Department 

notes that the treatment of pregnancyrelated discrimination under other 

statutes enacted since 1975 confirms a 

general understanding by Congress that 

pregnancy-based discrimination is a 

form of sex discrimination and provides 

additional context for understanding 

how to eliminate discrimination based 

on pregnancy or related conditions. For 

example, in 1978, three years after the 

Department published its Title IX 

regulations, Congress passed the 

Pregnancy Discrimination Act (PDA), 

which amended Title VII’s prohibition 

on sex discrimination to prohibit 

employers from discriminating against 

employees on the basis of pregnancy, 

childbirth, or related medical 

conditions. 42 U.S.C. 2000e(k). The PDA 

also requires that women affected by 

pregnancy, childbirth, or related 

medical conditions be treated the same 

as other persons not so affected but 

similar in their ability or inability to 

work. Id. 

The fact that Congress did not amend 

Title IX’s definition of ‘‘sex’’ to 

explicitly include pregnancy, as it did 

for Title VII in 1978, does not signal 

Congress’s intent to exclude pregnancy 

coverage under Title IX. As articulated 

by the district court in Conley after 

recounting the relevant legislative 

history, ‘‘Congress passed the Pregnancy 

Discrimination Act in direct response to 

a Supreme Court opinion, [General 

Electric Co. v. Gilbert, 429 U.S. 125 

(1976),] that had substantively 

misinterpreted Title VII.’’ Conley, 145 F. 

Supp. 3d at 1084–85 (‘‘Although it is 

true that Congress has never amended 

Title IX’s definition of sex to explicitly 

include pregnancy, the Court is not 

persuaded that this fact signals 

Congress’s intent on the matter.’’). In 

contrast, there was no corresponding 

Title IX-related Supreme Court opinion 

that required Congress to respond. Id. at 

1083–85 (stating that Congress delegated 

much less authority to the EEOC to 

promulgate the regulation considered in 

Gilbert than it did to the Department to 

promulgate 34 CFR 106.40, and holding 

that the Department’s interpretation was 

entitled to deference under the standard 

set out in Chevron, U.S.A., Inc. v. Nat. 

Res. Def. Council, Inc., 467 U.S. 837, 

844 (1984)). 

Courts have considered the scope of 

the term ‘‘related medical conditions’’ 

under the PDA, particularly in 

connection with the issue of lactation. 

In 2013, for example, the U.S. Court of 

Appeals for the Fifth Circuit held that 

under the PDA, lactation is a medical 

condition related to pregnancy, 

explaining that ‘‘[i]t is undisputed . . . 

that lactation is a physiological result of 

being pregnant and bearing a child’’ and 

the definition of ‘‘medical conditions’’ 

includes physiological conditions. 

Equal Emp. Opportunity Comm’n v. 

Hous. Funding II, Ltd., 717 F.3d 425, 

428–29 (5th Cir. 2013). In 2017, the U.S. 

Court of Appeals for the Eleventh 

Circuit followed suit, holding that 

‘‘lactation is a related medical condition 

and therefore covered under the PDA.’’ 

Hicks v. City of Tuscaloosa, 870 F.3d 

1253, 1259 (11th Cir. 2017). 

In June 2015, the EEOC issued 

enforcement guidance on pregnancy 

discrimination and related issues, 

which clarified that Title VII, as 

amended by the PDA, prohibits 

discrimination based on current 

pregnancy, past pregnancy, potential or 

intended pregnancy, and medical 

conditions related to pregnancy or 

childbirth. 2015 EEOC Pregnancy 

Guidance. The 2015 EEOC Pregnancy 

Guidance further emphasized that 

‘‘[b]ecause lactation is a pregnancyrelated medical condition, less favorable 

treatment of a lactating employee may 

raise an inference of unlawful 

discrimination.’’ Id. The 2015 EEOC 

Pregnancy Guidance stated that: 

To continue producing an adequate milk 

supply and to avoid painful complications 

associated with delays in expressing milk, a 

nursing mother will typically need to 

breastfeed or express breast milk using a 

pump two or three times over the duration 

of an eight-hour workday. An employee must 

have the same freedom to address such 

lactation-related needs that she and her coworkers would have to address other 

similarly limiting medical conditions. For 

example, if an employer allows employees to 

change their schedules or use sick leave for 

routine doctor appointments and to address 

non-incapacitating medical conditions, then 

it must allow female employees to change 

their schedules or use sick leave for lactationrelated needs under similar circumstances. 

Id. Although the 2015 EEOC 

Pregnancy Guidance and related court 

cases interpreting the PDA are based on 

Title VII, not Title IX, the Department 

believes that they provide relevant 

background because both statutes long 

have been understood to prohibit 

pregnancy discrimination. Thus, Title 

VII and its application, including by the 

EEOC, provide a persuasive perspective 

for the Department’s understanding of 

what may constitute pregnancy 

discrimination in modern society. 

Moreover, courts often rely on 

interpretations of Title VII to inform 

interpretations of Title IX, and both 

laws apply to employees in the 

educational context. See, e.g., Franklin, 

503 U.S. at 75; Jennings, 482 F.3d at 

695; Frazier, 276 F.3d at 66; Gossett, 245 

F.3d at 1176. 

Like the PDA, protections in the 

Affordable Care Act (ACA) also reflect 

the types of supports breastfeeding 

employees need to participate fully in 

their employment. The ACA amended 

Section 7 of the Fair Labor Standards 

Act (FLSA) to require employers to 

provide reasonable break times and a 

private place, other than a bathroom, for 

employees covered under Section 7 of 

the FLSA who are breastfeeding to 

express milk for one year after a child’s 

birth. 29 U.S.C. 207(r)(1). The space 

must be ‘‘shielded from view and free 

from intrusion from coworkers and the 

public.’’ Id. DOL explained in a fact 

sheet that the space must be 

‘‘functional’’ and ‘‘available when 

needed’’ because ‘‘[t]he frequency of 

breaks needed to express milk as well as 

the duration of each break will likely 

vary.’’ U.S. Dep’t of Labor, Fact Sheet 

#73: Break Time for Nursing Mothers 

under the FLSA (Apr. 2018), https://

www.dol.gov/agencies/whd/fact-sheets/ 

73-flsa-break-time-nursing-mothers. 

Under the ACA/FLSA, a temporary or 

converted space is sufficient provided 

that the space is available when needed, 

shielded from view, and free from any 

intrusion from co-workers and the 

public. Id. The Department finds these 

statutes informative of how a recipient 

can ensure that students and employees 

can continue to access the recipient’s 

education program or activity while 

experiencing a pregnancy-related 

condition such as lactation. In addition, 

the nondiscrimination regulatory 

provisions of the WIOA, which are 

enforced by DOL,9 include a section 

obligating WIOA, Title I-financially 

assisted programs, activities, training, 

and services to refrain from 

discrimination based on pregnancy, 

childbirth, or related medical 

conditions, including childbearing 

capacity, as a form of sex 

discrimination. 81 FR 87130, 87221–22 

(Dec. 2, 2016) (codified at 29 CFR 38.8), 

https://www.govinfo.gov/content/pkg/ 

FR-2016-12-02/pdf/2016-27737.pdf. The 

WIOA nondiscrimination regulations 

contain a non-exhaustive list of 

examples of related medical conditions, 

including but not limited to lactation; 

disorders directly related to pregnancy 

(for example, preeclampsia, placenta 

previa, and gestational diabetes) and 


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other symptoms such as back pain; 

complications that require bed rest; and 

the after-effects of a delivery. Id. at 

87222. In the preamble to the final rule, 

DOL explained that the regulations set 

out the standards that it will apply in 

enforcing the prohibition on pregnancy 

discrimination, and that these standards 

are consistent with Title IX, as well as 

with Title VII as amended by the PDA. 

Id. at 87134. 

Finally, with respect to parental 

status, Executive Order 13152 states that 

to provide for a uniform policy for the 

Federal government’s efforts to prohibit 

discrimination based on a person’s 

parental status, ‘‘status as a parent’’ 

should be understood to refer to ‘‘the 

status of an individual who, with 

respect to an individual who is under 

the age of 18 or who is 18 or older but 

is incapable of self-care because of a 

physical or mental disability, is: (a) a 

biological parent, (b) an adoptive parent, 

(c) a foster parent, (d) a stepparent, (e) 

a custodian of a legal ward, (f) in loco 

parentis over such individual, or (g) 

actively seeking legal custody or 

adoption of such an individual.’’ 

Executive Order 13152 on Further 

Amendment to Executive Order 11478, 

Equal Employment Opportunity in 

Federal Government, E.O. 13152, 65 FR 

26115 (May 2, 2000), http://govinfo.gov/ 

content/pkg/WCPD-2000-05-08/pdf/ 

WCPD-2000-05-08-Pg977.pdf. Executive 

Order 13152 authorized the U.S. Office 

of Personnel Management to develop 

guidance on its provisions. Id. The 

scope of the Executive Order’s 

definition of ‘‘status of a parent’’ is 

informative for interpreting the 

Department’s longstanding Title IX 

regulations regarding sex discrimination 

based on parental status, as it 

illuminates the Federal government’s 

recognition of the many types of parents 

beyond biological parents. 

Against this backdrop, and after 

reweighing the relevant facts and 

circumstances, including a review of 

other civil rights laws that prohibit 

discrimination based on sex, the 

Department proposes revising its Title 

IX regulations related to pregnancy and 

related conditions, as well as sex 

discrimination related to marital, 

parental, and family status, to give 

greater effect to Title IX’s 

nondiscrimination mandate within the 

educational context. The Department’s 

current view is that in light of Title IX’s 

focus on eliminating sex discrimination 

for all students and employees, it is 

necessary to strengthen and clarify the 

Department’s regulatory protections for 

students and employees who are 

pregnant or experiencing pregnancyrelated conditions, as well as those that 

prevent sex discrimination related to 

marital, parental, and family status. 

D. Revised Definitions 

Section 106.2 Definition of ‘‘pregnancy 

or related conditions’’ 

Current regulations: The current 

regulations do not define the term 

‘‘pregnancy and related conditions.’’ 

However, with respect to students, 

current § 106.40(b) uses that term as a 

section title. Current § 106.21(c)(2) 

prohibits discrimination against 

applicants for admission on the basis of 

‘‘pregnancy, childbirth, termination of 

pregnancy, or recovery therefrom’’ and 

states that a recipient must treat 

‘‘disabilities related to pregnancy, 

childbirth, termination of pregnancy, or 

recovery therefrom’’ in the same manner 

and under the same policies as any 

other temporary disability. Current 

§ 106.40(b)(1) also prohibits 

discrimination against a student on the 

basis of ‘‘pregnancy, childbirth, false 

pregnancy, termination of pregnancy, or 

recovery therefrom.’’ With respect to 

employees, current § 106.57(b) and (d) 

prohibits discrimination against an 

employee on the basis of ‘‘pregnancy, 

childbirth, false pregnancy, termination 

of pregnancy, or recovery therefrom’’; 

states that ‘‘any temporary disability 

resulting therefrom’’ must be treated as 

any other temporary disability; and 

specifies that those situations must be 

used as a justification for leave. Finally, 

current § 106.51(b)(6) states that the 

subpart regarding employees applies to 

‘‘granting and return from leaves of 

absence, leave for pregnancy, childbirth, 

false pregnancy, termination of 

pregnancy, leave for persons of either 

sex to care for children or dependents, 

or any other leave.’’ 

Proposed regulations: The 

Department proposes adding a 

definition of the term ‘‘pregnancy or 

related conditions’’ at proposed § 106.2. 

The Department proposes defining 

‘‘pregnancy or related conditions’’ as: 

(1) Pregnancy, childbirth, termination 

of pregnancy, or lactation; 

(2) Medical conditions related to 

pregnancy, childbirth, termination of 

pregnancy, or lactation; or 

(3) Recovery from pregnancy, 

childbirth, termination of pregnancy, 

lactation, or their related medical 

conditions. 

Reasons: The Department’s tentative 

view is that the current regulations may 

be misconstrued as leaving gaps in 

coverage of discrimination based on 

‘‘pregnancy,’’ ‘‘related conditions,’’ or 

‘‘recovery therefrom’’ because the 

regulations do not clearly define those 

terms. The proposed changes would 

clarify a recipient’s obligations under 

Title IX to students and employees who 

are pregnant or experiencing pregnancyrelated conditions to ensure full 

implementation of Title IX’s 

nondiscrimination requirement. For 

example, the current regulations do not 

specify the status of medical conditions 

that are related to or caused by 

pregnancy, childbirth, termination of 

pregnancy, loss of pregnancy, or 

lactation but that are not necessarily 

related to ‘‘recovery’’ from pregnancy. 

These include a variety of common 

conditions including, for example, 

gestational diabetes, preeclampsia, 

hyperemesis gravidarum (i.e., severe 

nausea and vomiting), mastitis, and 

many others. The proposed definition 

would explicitly include related 

medical conditions. Finally, the 

proposed regulations would clarify that 

discrimination based on lactation is 

covered by Title IX’s prohibition on 

discrimination based on pregnancyrelated conditions. 

Discrimination based on any of these 

conditions and situations may present 

serious impediments to, and can lead to 

loss of, learning or employment for 

students and employees seeking to 

access a recipient’s education program 

or activity while at the same time 

managing health impacts of pregnancy 

or related conditions. The proposed 

definition would more fully implement 

Title IX by clarifying that Title IX covers 

discrimination based on medical 

conditions related to or caused by 

pregnancy, childbirth, termination of 

pregnancy, or lactation, even if they are 

not related to ‘‘recovery from 

pregnancy.’’ 

Because the Department’s Title IX 

regulations have provided important 

protections for students and applicants 

against discrimination in access to 

educational opportunities based on 

recovery from pregnancy, childbirth, 

and termination of pregnancy since they 

were first promulgated in 1975, the 

Department proposes clarifying that 

Title IX’s scope of coverage includes 

discrimination based on recovery from 

related medical conditions as well. 

The Department’s proposed definition 

would remove the term ‘‘false 

pregnancy,’’ which appears in current 

§§ 106.40(b)(1), 106.40(b)(4) and (5), 

106.51(b)(6), and 106.57(b) through (d). 

The Department’s current view is that 

the meaning of this term is unclear in 

the contemporary context and could 

bear multiple interpretations, including 

a pregnancy that is suspected, but not 

confirmed; a pregnancy that is falsely 

confirmed; or another medical condition 

that is clinically similar to pregnancy. 

To eliminate confusion and uncertainty, 


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the Department proposes interpreting 

‘‘pregnancy’’ in proposed § 106.2 to 

encompass a student’s or employee’s 

belief about either the student’s or 

employee’s own pregnancy or someone 

else’s. For example, if a student takes a 

pregnancy test that shows a positive test 

result, tells the recipient about the 

pregnancy, and the recipient then 

refuses to allow the student to 

participate in the student council based 

on the student’s pregnancy, the student 

would be protected from discrimination 

under this proposed definition even if, 

later, the student learned that the 

pregnancy test result was a false 

positive. Likewise, if an administrator 

believes—based on external physical 

indicators and a report from a 

colleague—that a professor is pregnant 

and assigns the professor fewer classes 

because of this, the professor would also 

be protected from discrimination under 

this proposed definition regardless of 

whether the professor was pregnant. 

Section 106.2 Definition of ‘‘Parental 

Status’’ 

Current regulations: None. Current 

§§ 106.21(c)(1), 106.37(a)(3), 106.40(a), 

and 106.57(a)(1) prohibit sex-based 

distinctions on the basis of ‘‘parental 

status’’ pertaining to students and 

applicants for admission, but do not 

define that term. 

Proposed regulations: The 

Department proposes adding a 

definition of the term ‘‘parental status’’ 

at § 106.2, as used in proposed 

§§ 106.21(c)(2)(i), 106.40(a), and 

106.57(a)(1), and current § 106.37(a)(3). 

The Department proposes defining 

‘‘parental status’’ as the status of a 

person who, with respect to another 

person who is under the age of 18 or 

who is 18 or older but is incapable of 

self-care because of a physical or mental 

disability, is: 

(1) A biological parent; 

(2) An adoptive parent; 

(3) A foster parent; 

(4) A stepparent; 

(5) A legal custodian or guardian; 

(6) In loco parentis with respect to 

such a person; or 

(7) Actively seeking legal custody, 

guardianship, visitation, or adoption of 

such a person. 

Reasons: As explained in the 

Background discussion of the History of 

Title IX’s Nondiscrimination Mandate 

and Related Regulations, the 

Department has prohibited sex 

discrimination related to parental status 

since 1975. The Department recognizes 

that sex stereotypes about who bears 

responsibility for raising children are 

still common and may affect studentand employee-parents in accessing 

educational opportunities even though 

TitleIX has long prohibited sex 

discrimination based on parental status. 

To provide clarity regarding this 

protection for recipients and others 

given the absence of a definition in the 

current regulations, the Department 

proposes adding a definition of 

‘‘parental status’’ that would apply to 

proposed §§ 106.21(c)(2)(i), 106.40(a), 

and 106.57(a)(1), and current 

§ 106.37(a)(3), the only four provisions 

of the proposed regulations that 

reference different treatment based on 

sex related to the parental status of 

applicants for admission or 

employment, students, and employees. 

The proposed definition would specify 

that a recipient must not discriminate 

against students, employees, or 

applicants for admission or employment 

who have caregiving responsibilities for 

others based on the status of being a 

biological or adoptive parent, guardian, 

foster parent, stepparent, legal 

custodian, or in loco parentis, or those 

who are actively seeking legal custody, 

adoption, visitation, or guardianship. 

This proposed change is informed by 

the definition of ‘‘status as a parent’’ in 

Executive Order 13152, which prohibits 

discrimination in Federal employment 

based on an individual’s status as a 

parent. As noted in the discussion of 

Other Relevant Statutes and Agency 

Interpretations (Section III.C), that 

Executive Order is informative 

background as to how Federal agencies 

should understand the concept of 

parental status in light of the various 

configurations of families. 

E. Admissions 

Section 106.21 Admissions 

Current regulations: The section 

heading is ‘‘Admission.’’ 

Proposed regulations: The 

Department proposes changing this 

section heading to ‘‘Admissions.’’ 

Reasons: The proposed section 

heading would align with the section 

heading at current § 106.15. 

Section 106.21(a) Admissions—Status 

Generally 

Current regulations: The section 

heading is ‘‘General.’’ 

Proposed regulations: The 

Department proposes changing this 

section heading to ‘‘Status generally.’’ 

As described in the discussion of 

Outdated Regulatory Provisions (Section 

VI), the Department also proposes 

removing references to §§ 106.16 and 

106.17 from this paragraph because 

those sections are no longer operative. 

Reasons: The proposed section 

heading would more accurately describe 

the content of the section and would 

align with proposed §§ 106.40(a) and 

106.57(a). 

Section 106.21(c) Parental, Family, or 

Marital Status; Pregnancy or Related 

Conditions 

Current regulations: Section 

106.21(c)(1) prohibits a recipient from 

treating students or applicants for 

admission differently based on sex in 

relation to their ‘‘actual or potential 

parental, family, or marital status.’’ It 

also prohibits discrimination and 

exclusion on the basis of ‘‘pregnancy, 

childbirth, termination of pregnancy, or 

recovery therefrom,’’ and requires 

pregnancy-related disabilities to be 

treated in the same manner as other 

temporary disabilities or conditions. 

Finally, current § 106.21(c)(4) prohibits 

pre-admission inquiries regarding 

marital status and limits inquiries as to 

sex. 

Proposed regulations: The 

Department proposes revisions to clarify 

the scope of current § 106.21(c), make 

this section consistent with related 

provisions at proposed § 106.40, and 

enhance readability. Specifically, the 

Department proposes to: 

• Revise the section heading to 

‘‘Parental, family, or marital status; 

pregnancy or related conditions’’; 

• Reorganize the section by 

separating items that require or prohibit 

certain actions by recipients; 

• Replace the term ‘‘disabilities 

related to pregnancy, childbirth, 

termination of pregnancy, or recovery 

therefrom’’ with ‘‘pregnancy or related 

conditions or any temporary disability 

resulting therefrom’’; 

• Clarify that the scope of coverage 

includes ‘‘past’’ parental, family, or 

marital status; 

• Clarify that the scope of coverage 

includes ‘‘current, potential, or past 

pregnancy or related conditions’’; 

• Replace ‘‘rule’’ with ‘‘policy, 

practice, or procedure’’; 

• Replace ‘‘apply’’ with ‘‘adopt or 

apply’’; 

• Replace ‘‘actual’’ with ‘‘current’’; 

• Delete ‘‘exclude’’ and ‘‘excludes’’; 

and 

• Replace ‘‘A recipient may make preadmission inquiry as to the sex of an 

applicant for admission, but only if such 

inquiry is made equally of such 

applicants of both sexes and if the 

results of such inquiry are not used in 

connection with discrimination 

prohibited by this part’’ with ‘‘A 

recipient may ask an applicant to selfidentify their sex, but only if this 

question is asked of all applicants and 

if the response is not used as a basis for 

discrimination prohibited by this part.’’ 


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Reasons: Changes for clarity, 

consistency, and readability. The 

Department proposes revising the 

section heading for proposed § 106.21(c) 

to better reflect the content of the 

subsection. The Department also 

proposes replacing ‘‘shall’’ with ‘‘must’’ 

and reorganizing the section by dividing 

the ‘‘must’’ from the ‘‘must not’’ 

provisions for better readability. In 

addition, the Department proposes 

replacing the term ‘‘pregnancy, 

childbirth, termination of pregnancy, or 

recovery therefrom’’ with ‘‘pregnancy or 

related conditions’’ to align with the 

proposed definition of ‘‘pregnancy or 

related conditions’’ in proposed § 106.2. 

Changes to scope of coverage. The 

Department proposes replacing ‘‘actual’’ 

with ‘‘current’’ in proposed 

§ 106.21(c)(2)(ii). The Department 

proposes making this minor change 

throughout the regulations at proposed 

§§ 106.21(c) and 106.40 to add clarity 

and consistency to the regulations. 

Because the Department’s proposed 

regulations would cover perceived 

pregnancy under the definition of 

‘‘pregnancy or related conditions’’ in 

proposed § 106.2, the Department now 

believes that ‘‘actual’’ may cause 

confusion and be unduly limiting. 

‘‘Current’’ would include the period of 

reasonable belief of pregnancy or related 

conditions. The Department further 

proposes clarifying that the scope of 

coverage in proposed § 106.21(c)(2)(ii) 

includes ‘‘current, potential, or past 

pregnancy or related conditions’’ to 

more fully address sex discrimination 

facing applicants at various points. This 

change would be consistent with similar 

proposed revisions to scope of coverage 

at proposed §§ 106.40(b)(1) and 

106.57(b) pertaining to students and 

employees, respectively. Likewise, the 

Department proposes adding 

§ 106.21(c)(2)(i) to clarify that the scope 

of coverage includes past parental, 

family, or marital status. This addition 

would make clear that prohibited sex 

discrimination includes discrimination 

based on sex related to a previously 

held parental, family, or marital status. 

For example, if a recipient refused to 

admit a woman to a graduate program 

because she was previously married, but 

admitted a previously married man with 

similar qualifications, this would be a 

prohibited form of sex discrimination 

under the proposed regulations. 

The proposed regulations also would 

clarify that covered actions include a 

recipient’s policies, practices, and 

procedures. The purpose of this change 

would be to encompass a broader range 

of recipient actions that could be forms 

of sex discrimination based on parental, 

family, or marital status and to prevent 

circumvention by reliance on policies, 

practices, or procedures not reflected in 

the recipient’s formal or informal rules. 

Likewise, the addition of ‘‘adopt’’ would 

indicate that a policy, practice, or 

procedure that is formally or informally 

decided upon would be subject to the 

proposed regulations, as well as those 

that are passed or otherwise announced 

formally but not yet applied in an 

individual case, and those that have 

been acted upon. For example, if a 

recipient announced a policy that 

student fathers, but not student mothers, 

could be admitted to a law enforcement 

training program, this policy would 

potentially violate proposed 

§ 106.21(c)(2)(i) even if the recipient had 

not yet applied it to any student. Both 

changes mentioned in this paragraph 

would be consistent with changes 

proposed in a similar section related to 

parental, familial, and marital status at 

proposed § 106.40(a). 

The Department proposes replacing 

the term ‘‘disabilities related to 

pregnancy, childbirth, termination of 

pregnancy, or recovery therefrom’’ with 

‘‘pregnancy or related conditions or any 

temporary disability resulting 

therefrom’’ in proposed § 106.21(c)(1). 

‘‘Disabilities related to pregnancy’’ 

could be interpreted to suggest that 

applicants would not be covered under 

the provision unless they had a 

disability under Section 504 or the 

ADA, something that could be difficult 

for a recipient or an applicant to 

ascertain during the admissions process. 

It also leaves unclear whether a 

pregnant student who is not 

experiencing any additional pregnancyrelated conditions would be protected 

under the current regulations. The 

proposed change would clarify that an 

applicant who is pregnant or 

experiencing pregnancy-related 

conditions or a temporary disability 

resulting therefrom must be treated in 

the same manner and under the same 

policies as those who have other 

temporary disabilities or physical 

conditions, simplifying the analysis 

both for the recipient and applicants. 

The proposed change would also align 

with the language the Department 

suggests in proposed §§ 106.40(b)(5) and 

106.57(c). 

The Department proposes deleting 

‘‘exclude’’ and ‘‘excludes’’ in proposed 

§ 106.21(c)(2)(ii) because they are used 

only occasionally in the current 

regulations to refer to discrimination 

and such intermittent use may cause 

confusion. Throughout the current and 

proposed regulations, the Department 

interprets ‘‘discriminate’’ to encompass 

exclusion. 

Pre-admission inquiries. In proposed 

§ 106.21(c)(2)(iii), the Department 

proposes replacing the term ‘‘in 

connection with discrimination’’ with 

‘‘as a basis for discrimination’’ to 

enhance clarity and consistency with 

usage elsewhere in the proposed 

regulations but does not intend this as 

a substantive change in meaning. In 

addition, the Department proposes 

revising the last sentence in 

§ 106.21(c)(2)(iii) to use the term ‘‘all 

applicants’’ instead of the term ‘‘both 

sexes’’ in recognition of the fact that 

some applicants may have a nonbinary 

gender identity. For the same reason, if 

a recipient asks applicants to selfidentify their sex and provides options 

from which applicants may choose, 

nothing in the current or proposed 

regulations would prohibit a recipient 

from offering nonbinary options in 

addition to male and female options. 

F. Discrimination Based on a Student’s 

Parental, Family, Marital Status, 

Pregnancy, or Related Conditions 

Section 106.40 Parental, Family, or 

Marital Status; Pregnancy or Related 

Conditions 

Current regulations: The section 

heading is ‘‘Marital or parental status.’’ 

Proposed regulations: The 

Department proposes changing this 

section heading to ‘‘Parental, family, or 

marital status; pregnancy or related 

conditions.’’ 

Reasons: The proposed section 

heading would more accurately describe 

the content of the section. 

Section 106.40(a) Status Generally 

Current regulations: Section 106.40(a) 

states that a ‘‘recipient shall not apply 

any rule concerning a student’s actual or 

potential parental, family, or marital 

status which treats students differently 

on the basis of sex.’’ 

Proposed regulations: The 

Department proposes the following edits 

to current § 106.40(a): 

• Replacing ‘‘rule’’ with ‘‘policy, 

practice, or procedure’’; 

• Changing ‘‘apply’’ to ‘‘adopt or 

apply’’; and 

• Changing ‘‘actual or potential’’ to 

‘‘current, potential, or past.’’ 

Reasons: The Department proposes 

several changes to clarify the scope of 

conduct prohibited by this section. 

First, as explained in greater detail in 

the discussion of proposed § 106.21(c), 

the proposed regulations would add to 

the types of actions that are subject to 

the prohibition to prevent 

circumvention by reliance on policies, 

practices, or procedures not reflected in 

the recipient’s express rules. For 


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example, if a high school had an 

informal practice of not inviting 

pregnant students to join the honor 

society, this action would violate 

proposed § 106.40(a) even if the practice 

was not written into any rule formally 

governing the activity. Likewise, if a 

recipient passed a policy that student 

mothers could not participate in class 

field trips, this policy would violate 

proposed § 106.40(a) even if the 

recipient had not yet applied it to any 

student. 

Second, the proposed regulations 

would clarify that a recipient is not 

permitted to adopt policies, practices, or 

procedures that treat students 

differently on the basis of sex; current 

§ 106.40(a) references only the 

application of such a rule. Use of the 

term ‘‘adopted’’ would indicate that the 

proposed regulations would cover a 

policy, practice, or procedure that is 

formally or informally decided upon; 

those that are passed or otherwise 

announced formally but not yet applied 

in an individual case; and those that 

have been acted upon. The proposed 

regulations would therefore cover 

policies, practices, and procedures 

without requiring an analysis of 

whether they had been applied to a 

student. 

Finally, to clarify coverage and 

maintain consistency with a similar 

provision at proposed § 106.21(c) 

regarding admissions, the Department 

proposes replacing the terms ‘‘actual or 

potential’’ with the terms ‘‘current, 

potential, or past.’’ As explained in the 

discussion of proposed § 106.21(c), this 

revision would help ensure that 

students are more fully protected from 

discrimination, recognizing that a 

person can be subject to sex stereotypes 

due to past status as well as present 

status. 

Section 106.40(b) Pregnancy or 

Related Conditions 

Current regulations: The section 

heading is ‘‘Pregnancy and related 

conditions.’’ 

Proposed regulations: The 

Department proposes changing this 

section heading to ‘‘Pregnancy or related 

conditions.’’ 

Reasons: The proposed section 

heading would more accurately describe 

the content of the section and would be 

consistent with the proposed definition 

of ‘‘pregnancy or related conditions’’ at 

§ 106.2. 

Section 106.40(b)(1) Pregnancy or 

Related Conditions—Nondiscrimination 

Current regulations: Section 

106.40(b)(1) prohibits a recipient from 

discriminating against or excluding a 

student from its education program or 

activity, including any class or 

extracurricular activity, on the basis of 

such student’s pregnancy, childbirth, 

false pregnancy, termination of 

pregnancy or recovery therefrom, unless 

the student requests voluntarily to 

participate in a separate portion of the 

program or activity of the recipient. 

Current § 106.40(b)(3) states that a 

recipient that operates a portion of its 

education program or activity separately 

for pregnant students to which students 

may voluntarily admit themselves must 

ensure that the separate portion is 

comparable to that offered to nonpregnant students. 

Proposed regulations: Proposed 

§ 106.40(b)(1) would prohibit a recipient 

from discriminating against any student 

based on current, potential, or past 

pregnancy or related conditions. The 

Department also proposes revising this 

provision to incorporate the 

requirement in current § 106.40(b)(3) 

that a recipient may permit a student 

based on pregnancy or related 

conditions to participate voluntarily in 

a separate portion of its education 

program or activity provided the 

recipient ensures that the separate 

portion is comparable to that offered to 

students who are not pregnant and do 

not have related conditions. 

Reasons: Proposed § 106.40(b)(1) 

would merge related and overlapping 

aspects of current § 106.40(b)(1) and (3), 

which prohibit discrimination based on 

pregnancy or related conditions and 

permit a recipient to allow a pregnant 

student or a student experiencing 

pregnancy-related conditions to 

voluntarily opt into separate portions of 

the recipient’s education program or 

activity provided the recipient ensures 

comparability with the standard 

education program or activity. 

The Department proposes clarifying 

the scope of the nondiscrimination 

provision to cover current, potential, or 

past pregnancy or related conditions 

because protecting students from 

discrimination on these bases helps to 

achieve Title IX’s objective of 

eradicating sex discrimination in 

federally funded education programs or 

activities. Title IX was enacted in large 

part because women were being denied 

educational access due to views that 

they were less capable and less 

committed to academic demands given 

their pregnancy and childrearing 

obligations. See 118 Cong. Rec. at 5804 

(statement of Sen. Bayh, sponsor of Title 

IX, explaining the widespread but false 

perception that women are disinterested 

in education or professional 

achievement because the duty or desire 

to marry and bear children has led to 

sex discrimination in education). 

Clarifying Title IX’s protections to cover 

current, potential, or past pregnancy or 

related conditions would ensure that a 

student is not treated unfairly in the 

educational context due to, for example, 

a likelihood of having children in the 

future, having had children in the past 

or experienced pregnancy-related 

medical conditions. Although not the 

basis for this proposal, the Department 

notes that this scope of coverage would 

be like that provided by the PDA, which 

the EEOC has recognized covers current, 

potential, and past pregnancy. 2015 

EEOC Pregnancy Guidance. This scope 

of coverage has contributed to 

addressing barriers to employment and 

professional achievement, and it is the 

Department’s current view that, 

fundamental to the purpose of Title IX, 

it would help address the barriers to 

educational access arising from false 

perceptions about pregnancy and 

childbearing plans. 

Section 106.40(b)(2) Pregnancy or 

Related Conditions—Requirement for 

Recipient to Provide Information 

Current regulations: Section 

106.40(b)(1) addresses pregnancyrelated nondiscrimination requirements. 

Current § 106.8(a) requires a recipient to 

designate a Title IX Coordinator to 

coordinate its efforts to comply with 

Title IX. Current § 106.8(b) requires that 

a recipient notify its students of the 

recipient’s nondiscrimination policy 

and that inquiries about a recipient’s 

Title IX obligations may be referred to 

the Title IX Coordinator. 

Proposed regulations: Proposed 

§ 106.40(b)(2) would require a recipient 

to ensure that when any employee is 

informed of a student’s pregnancy or 

related conditions by the student or a 

person who has a legal right to act on 

behalf of the student, the employee 

promptly informs that person of how to 

notify the Title IX Coordinator of the 

student’s pregnancy or related 

conditions for assistance and provides 

contact information for the Title IX 

Coordinator, unless the employee 

reasonably believes the Title IX 

Coordinator has already been notified. 

Reasons: The Department’s proposed 

provision seeks to effectuate Title IX’s 

goal of preventing sex discrimination by 

ensuring that when an employee of a 

recipient is informed of a student’s 

pregnancy or related conditions by the 

student or a person who has a legal right 

to act on behalf of the student, the 

employee is required to inform that 

person how they may contact the Title 

IX Coordinator for assistance. In doing 

so, the Department’s proposed provision 

takes into account the student’s interest 


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10The Department notes, however, that in 

elementary schools and secondary schools, Section 

504 imposes a continuing duty on school districts 

to identify any student who needs or is believed to 

need special education or related services because 

of a disability and seek parental consent to evaluate 

the student to determine, in part, what, if any, 

special education or related services are 

appropriate. 34 CFR 104.35; U.S. Dep’t of Educ., 

Office for Civil Rights, Parent and Educator 

Resource Guide to Section 504 in Public Elementary 

and Secondary Schools at 12, 19 (Dec. 2016), http:// 

www.ed.gov/ocr/docs/504-resource-guide201612.pdf. Depending on the specific 

circumstances, information about pregnancy-related 

conditions may initiate such a duty. For example, 

if Student A tells her high school teacher that a 

classmate, Student B, is home on bed rest due to 

pregnancy-related high blood pressure, this may be 

sufficient to trigger the school’s obligation to 

evaluate the student for areas of suspected physical 

disability. In addition, a recipient and its employees 

may have obligations under State and local laws 

requiring notification or reporting of child abuse, 

child molestation, sexual abuse, rape, or incest. 

in being free from sex discrimination 

and accessing necessary support and the 

right of the student and the student’s 

legal representatives to control what 

information is shared with a recipient 

regarding a student’s pregnancy or 

related health status, as well as when 

the information is shared. The 

Department also seeks to consider the 

administrative burden to recipients in 

carrying out this critical informational 

function. 

Under the proposed regulations, only 

when a student informs an employee of 

the student’s pregnancy would the 

employee be required to provide the 

student with information about how to 

notify the Title IX Coordinator. 

Similarly, only when a person who has 

a legal right to act on behalf of the 

student informs an employee of the 

student’s pregnancy would the 

employee be required to provide that 

person information about accessing to 

the Title IX Coordinator. In either case, 

unless the employee reasonably believes 

the Title IX Coordinator has already 

been notified, the employee would be 

responsible for telling the person who 

contacted them only two things: (1) how 

the person may notify the Title IX 

Coordinator of the student’s pregnancy 

or related conditions for assistance; and 

(2) contact information for the Title IX 

Coordinator. The Department expects 

that providing this information will be 

sufficient to inform the person of their 

option to contact the Title IX 

Coordinator as they see fit. The 

proposed regulations would also ensure 

that if a student or a person who has a 

legal right to act on behalf of the student 

preferred not to report the student’s 

pregnancy to the Title IX Coordinator, 

the person would have no obligation to 

do so. 

The Department intends the term ‘‘a 

person who has a legal right to act on 

behalf of the student’’ to be interpreted 

consistent with proposed § 106.6(g), 

which would not impose limitations on 

‘‘any legal right of a parent, guardian, or 

other authorized legal representative to 

act on behalf of’’ a student, subject to 

the FERPA statute, 20 U.S.C. 1232g, or 

its implementing regulations, 34 CFR 

part 99. Although a recipient would 

need to make a fact-specific 

determination, for purposes of proposed 

§ 106.40(b)(2), ‘‘a person who has a legal 

right to act on behalf of the student’’ 

would typically include the parents or 

legal guardians of minor students, legal 

guardians of adult students (for 

example, in the case of a student with 

significant disabilities), and authorized 

legal representatives of youth in out-ofhome care. For example, under 

proposed § 106.40(b)(2), if the parent of 

a minor student informs a high school 

teacher of a student’s pregnancy, the 

teacher would have to tell the parent 

how to notify the Title IX Coordinator 

and provide contact information. 

However, if the parent of an adult 

student in graduate school who does not 

have a legal right to act on behalf of the 

student contacted the student’s advisor 

to inform the advisor of the student’s 

pregnancy, the advisor would not be 

required to inform the parent of how to 

notify the Title IX Coordinator. The 

Department anticipates this approach 

would support the rights of parents of 

younger students while respecting the 

privacy interests of older students. 

The Department is mindful of 

recipient resources and submits that the 

proposed regulations are appropriately 

tailored and straightforward to 

implement. For example, an employee 

would not be required to act under this 

provision when the employee only 

suspects that a student is pregnant 

based on observation of physical 

indicators or rumor, or when told by a 

third party who is not a person with a 

legal right to act on behalf of the 

student. The proposed regulations 

would not require a recipient’s 

employees to inquire whether a student 

is pregnant based on physical indicators 

often associated with pregnancy.10 And 

under the proposed regulations, the 

employee would not have a duty to 

provide the student, or a person who 

has a legal right to act on behalf of the 

student, with information about the 

Title IX Coordinator if the employee 

reasonably believes the Title IX 

Coordinator has already been notified. 

For example, if a student tells her 

professor that she is pregnant, but the 

professor has already been informed of 

this fact by the Title IX Coordinator who 

notified the professor about the 

student’s upcoming parental leave, the 

professor would not be required to tell 

the student how to contact the Title IX 

Coordinator. 

The Department expects the proposed 

regulations would also be easily 

understood by employees because there 

is little ambiguity as to when they are 

required to act: if a student, or a person 

who has a legal right to act on behalf of 

the student, informs an employee that 

the student is pregnant or experiencing 

pregnancy-related conditions, the 

employee would have to provide the 

two pieces of basic information (how to 

notify the Title IX Coordinator and 

contact information for the Title IX 

Coordinator) to the student or the 

person who has a legal right to act on 

behalf of the student unless the 

employee knew or reasonably believed 

that the Title IX Coordinator was 

already informed. In addition, the 

provision would be helpful to students 

and their families because it would not 

require them to have any advance 

knowledge of a recipient’s available 

supports or to invoke specific words or 

requests for the employee to be required 

to provide them with information about 

the Title IX Coordinator. The standard 

also would afford recipients flexibility 

based on a student’s age and maturity 

level. Providing information as to how 

to notify the Title IX Coordinator would 

differ depending on the student’s age 

and maturity level. Nothing would 

prohibit an employee from offering to go 

with a student to the Title IX 

Coordinator or, at the student’s option, 

contacting the Title IX Coordinator on 

the student’s behalf; however, this is 

likely more appropriate at the 

elementary school or secondary school 

level and may not be necessary for a 

college student. Overall, the 

Department’s current view is that this 

provision would empower students and 

their families to decide whether they 

wish to obtain school-based supports at 

a potentially vulnerable time, thereby 

avoiding sex discrimination to the 

greatest extent possible. 

Section 106.40(b)(3) Pregnancy or 

Related Conditions—Specific Actions 

To Prevent Discrimination and Ensure 

Equal Access 

Current regulations: Section 

106.40(b)(1) addresses pregnancyrelated nondiscrimination requirements. 

Current § 106.40(b)(4) requires a 

recipient to treat ‘‘pregnancy, childbirth, 

false pregnancy, termination of 

pregnancy and recovery’’ similarly to 

any other temporary disability in certain 

contexts. Current § 106.40(b)(5) 

addresses leaves of absence. Current 

§ 106.40(b)(5) states that if a recipient 

does not maintain a leave policy for its 


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students, or a student does not 

otherwise qualify for leave under such 

a policy, a recipient will treat 

‘‘pregnancy, childbirth, false pregnancy, 

termination of pregnancy and recovery 

therefrom’’ as a justification for a leave 

of absence ‘‘for so long a period of time 

as is deemed medically necessary by the 

student’s physician, at the conclusion of 

which the student shall be reinstated to 

the status which she held when the 

leave began.’’ 

Proposed regulations: Proposed 

§ 106.40(b)(3) would combine aspects of 

the current regulations with specific 

actions the Title IX Coordinator would 

be required to take to ensure that a 

student who is pregnant or experiencing 

pregnancy-related conditions is not 

subject to discrimination and has equal 

access to the recipient’s education 

program or activity. Once the student, or 

a person who has a legal right to act on 

behalf of the student, notifies the Title 

IX Coordinator of a student’s pregnancy 

or related conditions, the Title IX 

Coordinator or appropriate designee 

would be required to promptly take four 

steps: 

(i) Inform the student, and if 

applicable the person who notified the 

Title IX Coordinator, of the recipient’s 

obligations to: (A) prohibit sex 

discrimination, including sex-based 

harassment; (B) provide the student 

with the option of reasonable 

modifications to the recipient’s policies, 

practices, or procedures because of 

pregnancy or related conditions; (C) 

allow access, on a voluntary basis, to 

any separate and comparable portion of 

the recipient’s education program or 

activity; (D) allow a voluntary leave of 

absence; (E) ensure the availability of 

lactation space; and (F) maintain 

grievance procedures that provide for 

the prompt and equitable resolution of 

complaints of sex discrimination, 

including sex-based harassment; 

(ii) Provide the student with the 

option of reasonable modifications to 

the recipient’s policies, practices, or 

procedures, as described in proposed 

§ 106.40(b)(4), because of pregnancy or 

related conditions; 

(iii) Allow the student to take a 

voluntary leave of absence from the 

recipient’s education program or 

activity to cover, at minimum, the 

period of time deemed medically 

necessary by the student’s physician or 

other licensed healthcare provider. To 

the extent that a recipient maintains a 

leave policy for students that allows a 

greater period of time than the 

medically necessary period, the 

recipient must permit the student to 

take leave under that policy instead if 

the student so chooses. Upon the 

student’s return to the recipient’s 

education program or activity, the 

student must be reinstated to the 

academic status and, as practicable, 

extracurricular status held when the 

leave began; and 

(iv) Ensure the availability of a 

lactation space, which must be a space 

other than a bathroom, that is clean, 

shielded from view, free from intrusion 

from others, and may be used by a 

student for expressing breast milk or 

breastfeeding as needed. 

Reasons: As noted in the discussion 

of the 1975 Title IX Regulations Related 

to Pregnancy and Parental Status 

(Section III.A), although the Title IX 

regulations have long recognized that 

proactive steps such as leave and 

reinstatement may be necessary to help 

to prevent discrimination based on 

pregnancy or related conditions and 

other forms of sex discrimination and to 

ensure that students are not denied 

equal access on the basis of pregnancy 

or related conditions, the Department 

proposes this new provision to clarify 

how a recipient must ensure 

nondiscrimination when notified about 

a student’s pregnancy or related 

condition and provide recipients with a 

simplified framework for compliance. 

Notice. The Title IX Coordinator’s 

responsibilities under this provision 

would be initiated upon notice to the 

Title IX Coordinator from the student— 

or a person who has a legal right to act 

on behalf of the student—of the 

student’s pregnancy or related 

conditions. At that point, the Title IX 

Coordinator would be required to take 

the specific actions set out in proposed 

§ 106.40(b)(3) to ensure that the 

recipient takes steps to prevent 

inadvertent discrimination and ensure 

that the student is not excluded from 

the recipient’s education program or 

activity. As explained in the discussion 

of proposed § 106.40(b)(2), the 

Department interprets the term ‘‘a 

person who has a legal right to act on 

behalf of the student’’ to be consistent 

with proposed § 106.6(g), which does 

not impose limitations on ‘‘any legal 

right of a parent, guardian, or other 

authorized legal representative to act on 

behalf of’’ a student, subject to the 

FERPA statute, 20 U.S.C. 1232g, or its 

implementing regulations, 34 CFR part 

99. Although a recipient would be 

required to make a fact-specific 

determination as to who constitutes ‘‘a 

person who has a legal right to act on 

behalf of the student’’ for purposes of 

proposed § 106.40(b)(3), this group 

would typically include the parents or 

legal guardians of minor students, legal 

guardians of adult students (for 

example, in the case of a student with 

significant disabilities), and authorized 

legal representatives of youth in out-ofhome care. Under proposed 

§ 106.40(b)(3), if the parent of a minor 

student were to inform the Title IX 

Coordinator of a student’s pregnancy, 

the Title IX Coordinator would be 

obligated to take the steps set forth in 

proposed § 106.40(b)(3), including 

providing information regarding the 

recipient’s obligations to both the parent 

and the student. However, if the parent 

of an adult student in graduate school 

who does not have a legal right to act 

on behalf of the student contacted the 

Title IX Coordinator to inform the Title 

IX Coordinator of the student’s 

pregnancy, the Title IX Coordinator 

would not be obligated to take the steps 

set forth in § 106.40(b)(3) because parent 

does not have a legal right to act on 

behalf of the student. The Department 

believes this approach would account 

for the rights of parents of younger 

students, while respecting the privacy 

interests of older students. A student 

would also have the right to directly 

inform the Title IX Coordinator of the 

student’s pregnancy or related 

conditions, which would require the 

Title IX Coordinator to take the steps set 

out in proposed § 106.40(b)(3). 

The Department’s current view is that 

the proposed notice standard would aid 

students, their families and 

representatives, and recipients because 

it would clarify that the student and 

those with legal rights to act on behalf 

of the student are the appropriate 

persons for sharing information about a 

student’s pregnancy or related 

conditions with the Title IX 

Coordinator. As explained in the 

discussion of the requirement for 

recipient to provide information in 

proposed § 106.40(b)(2), neither a 

student nor a person who has a legal 

right to act on behalf of the student 

would be obligated to disclose the 

student’s pregnancy to the recipient. 

And, cognizant both of student privacy 

and recipient resources, the Title IX 

Coordinator would not be required to 

take the steps described in proposed 

§ 106.40(b)(3) based only on observation 

of physical characteristics, rumors, or 

information from a third party who does 

not have a legal right to act on behalf of 

the student. 

Informing of the recipient’s 

obligations. The Title IX Coordinator 

would be required, after receiving notice 

of a student’s pregnancy or related 

conditions to inform the student—and if 

applicable any person who has the legal 

right to act on behalf of the student to 

the extent that person notified the Title 

IX Coordinator—of the recipient’s 

obligations under Title IX. This 


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information would inform the student 

and a person who has a legal right to act 

on behalf of the student of the 

recipient’s duties and the student’s 

options. It would enable the student to 

voluntarily request reasonable 

modifications because of pregnancy or 

related conditions that would prevent 

discrimination, ensure continuing 

access to the recipient’s education 

program or activity, and assist the 

student in understanding the recipient’s 

obligations to the student going forward. 

The recipient would also need to 

consider whether the student’s 

pregnancy or related conditions 

separately require a determination of 

whether a student is covered under 

Section 504. Depending on the precise 

facts, certain pregnancy-related 

conditions—including, for example, 

preeclampsia, gestational diabetes, and 

postpartum depression, among others— 

could be considered disabilities under 

Section 504. 

Reasonable modifications for students 

because of pregnancy or related 

conditions. The Department believes 

that providing a student with the option 

of reasonable modifications to the 

recipient’s policies, practices, or 

procedures because of pregnancy or 

related conditions is essential to 

preventing pregnancy-based 

discrimination and to ensuring equal 

access to a recipient’s education 

program or activity. Proposed 

§ 106.40(b)(3)(ii) would require the Title 

IX Coordinator to provide the student 

with the option of such modifications. 

The standards for these proposed 

voluntary reasonable modifications are 

explained in greater detail in the 

discussion of proposed § 106.40(b)(4). 

Voluntary leave of absence. Current 

§ 106.40(b)(5) states that ‘‘in the case of 

a recipient which does not maintain a 

leave policy for its students, or in the 

case of a student who does not 

otherwise qualify for leave under such 

a policy, a recipient shall treat 

pregnancy’’ or related conditions ‘‘as 

justification for a leave of absence for so 

long a period of time as is deemed 

medically necessary by the student’s 

physician.’’ It is the Department’s 

tentative view that, in the case of a 

recipient that maintains a leave policy, 

it may be unclear whether the 

appropriate length of leave is 

determined by the recipient’s policy or 

the period of medical necessity, and 

which trumps if those two periods 

differ. Also, some recipients, 

particularly elementary schools and 

secondary schools, may not maintain 

such policies for students. 

To increase clarity for recipients and 

students, proposed § 106.40(b)(3)(iii) 

would preserve the right of a student 

who is pregnant or experiencing related 

conditions to take a leave of absence 

from the recipient’s education program 

or activity for at least a medically 

necessary period, and to be reinstated to 

the same academic and, as practicable, 

extracurricular status upon return. The 

Department proposes revisions to clarify 

that any leave of absence must be 

voluntary and that the medically 

necessary period is only a minimum 

requirement. A recipient would be free 

to provide additional time if requested 

by the student and appropriate to the 

situation. For example, if a student’s 

medically necessary period concludes 

in the middle of a college semester, the 

student and recipient may both find it 

advantageous to extend the period of 

leave until the end of the semester. 

However, for a college student in a selfpaced independent study course who 

takes a voluntary leave of absence 

because of the student’s pregnancy or 

related conditions, that student and 

college may find it more helpful not to 

extend the period of leave in light of the 

flexibility of the independent study and 

the possibility that additional time off 

could put the student behind in the 

program. In addition, proposed 

§ 106.40(b)(3)(iii) would clarify that to 

the extent a recipient maintains a leave 

policy for students that allows a greater 

period of time than the medically 

necessary period, the recipient must 

permit the student to take leave under 

that policy instead if the student 

chooses. As explained in greater detail 

in the Background discussion of the 

History of Title IX’s Nondiscrimination 

Mandate and Related Regulations, a 

student’s right to take leave for 

pregnancy or related conditions, 

regardless of whether the recipient 

offers leave to students generally for 

other types of purposes, has been 

included in the Title IX regulations 

since 1975 and is designed to help 

achieve Title IX’s underlying objective 

of eliminating sex-based discrimination 

and barriers to equal access to education 

programs or activities. 

The Department also proposes 

revising this requirement to state that 

the period of medical necessity may be 

determined either by a physician (as in 

the current regulations) or another 

licensed healthcare provider. This 

change would provide additional 

flexibility to students and recipients, 

and would take into account that some 

students may be under the care of a 

midwife, nurse practitioner, or other 

licensed healthcare provider who is not 

a physician. 

The Department proposes revisions to 

clarify that a student must be reinstated 

to the same ‘‘academic and, as 

practicable, extracurricular’’ status upon 

return. OCR has long interpreted ‘‘same 

status upon return’’ under current 

§ 106.40(b)(5) as referring to ‘‘academic 

and extracurricular’’ status. See, e.g., 

U.S. Dep’t of Educ., Office for Civil 

Rights, Teenage Pregnancy and 

Parenthood Issues under Title IX of the 

Education Amendments of 1972 at 6 

(July 1991), https://files.eric.ed.gov/ 

fulltext/ED345152.pdf; U.S. Dep’t of 

Educ., Office for Civil Rights, 

Supporting the Academic Success of 

Pregnant and Parenting Students Under 

Title IX of the Education Amendments 

of 1972 at 5 (June 2013) (2013 

Pregnancy Pamphlet), https://

www2.ed.gov/about/offices/list/ocr/ 

docs/pregnancy.pdf. This proposed 

revision would make clear that upon 

return to school, a student must be 

restored to the student’s previous 

academic status, as well as to, as much 

as practicable, any extracurricular status 

the student may have held prior to the 

student’s leave. The Department 

acknowledges that in OCR’s previous 

guidance on pregnancy, OCR stated that 

a pregnant student who takes a 

voluntary leave of absence must be 

reinstated to the extracurricular status 

that the student held when the leave 

began. The Department recognizes, 

however, that in some instances, an 

extracurricular activity, event, or 

program will have ended by the time a 

student returns from leave or the 

student may not, due to timing or other 

logistical reasons, be able to participate. 

For example, if a particular school play 

in which a student was cast has ended 

its performance run before the student’s 

return, it will not be practicable to 

reinstate a student in that role and play. 

Likewise, if a student’s pregnancy leave 

resulted in the student’s absence during 

a qualifying event for an individual 

diving competition, it would not be 

practicable for the student to participate 

in that competition. These 

considerations would not, however, 

prevent the student in either situation 

from participating in plays with the 

drama club or competitions with the 

diving team in the future. Therefore, 

although the presumption is that a 

student returning from leave should be 

reinstated to the same extracurricular 

status, it is the Department’s current 

view that there may be some limited 

instances when exact reinstatement 

would not be administratively possible 

or practicable under the circumstances. 

Lactation space. As explained in the 

discussion in Need for Clarification 

Regarding Protections Because of 

Pregnancy and Parental Status (III.B) 


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and the explanation of the proposed 

definition of the term ‘‘pregnancy or 

related conditions’’ (§ 106.2), the 

Department proposes explicitly 

recognizing lactation as a basis for 

protection from discrimination. The 

Department currently believes that 

without appropriate modifications to 

ensure that schools prevent and end sex 

discrimination, a student who is 

lactating may face significant barriers to 

participating in and benefiting from a 

recipient’s education program or 

activity because of a recipient’s lack of 

awareness about the significant adverse 

health consequences that can result 

from delays in lactation. This lack of 

awareness can easily lead to adverse 

educational consequences as well, 

causing a student to miss or drop out of 

school and lose access to a recipient’s 

education program or activity due to 

their lactation needs. 

A student who is lactating would 

typically need breaks every few hours of 

the school day to express breast milk or 

breastfeed and an appropriate, sanitary 

space in which to do so. Many school 

settings lack appropriate spaces for a 

student to engage in these activities 

with adequate privacy and cleanliness. 

Secondary school students may require 

such spaces if their daily schedules 

allow limited flexibility and would not 

ordinarily allow for leaving school 

grounds two to three times each day to 

express milk or breastfeed. 

Consequently, lactation space on school 

grounds is necessary to enable students 

who are lactating to access their classes 

and extracurricular activities. Likewise, 

although postsecondary students often 

have more flexible class schedules than 

secondary school students, these 

students also need lactation space on 

campus so that they can have equal 

access to their courses and other 

campus activities. For students who do 

not have housing on or near campus, 

this need is heightened. Lack of access 

to lactation space in any of these 

scenarios could cause the student to 

miss school, quit school, or be unable to 

express breast milk or breast feed and, 

as a result, experience potentially 

painful physical side effects that 

prevents the student from fully 

accessing and obtaining the benefits of 

the recipient’s education program or 

activity. 

Proposed § 106.40(b)(3)(iv) would set 

out the requirements for a recipient’s 

lactation space, specifically that the 

recipient provide a place, other than a 

bathroom, that is clean, shielded from 

view, free from intrusion from others, 

and may be used by a student for 

expressing breast milk or breastfeeding. 

The Department anticipates that these 

requirements will provide the minimum 

acceptable standards for privacy, 

sanitation, and functionality necessary 

for students to attend to their lactation 

needs at school, be free from 

discrimination, and maintain equal 

access to the school’s education 

program or and activity. The 

Department expects that a bathroom 

would not be appropriate because in 

most cases, the only option for the 

student would be to sit on a toilet while 

expressing breast milk, which would 

not be sanitary or acceptable for the 

purpose of producing nutrition for a 

child. Likewise, privacy is critical to 

ensure that lactating students do not 

have to expose themselves to classmates 

or strangers. 

Nearly all recipients under Title IX 

are already required to provide a 

virtually identical physical space to 

certain employees under the FLSA. 29 

U.S.C. 207(r)(1). The only additional 

component added under the 

Department’s proposed regulations 

would be that the space be ‘‘clean.’’ 

Because most recipients already 

maintain janitorial services, the 

Department anticipates that the 

additional burden of cleaning a lactation 

space would not be significant. 

Proposed § 106.40(b)(3)(iv) would set 

minimum standards for a recipient’s 

student lactation space. The proposed 

regulations would not prohibit a 

recipient from using an employee 

lactation space for students as well, 

provided the space meets the 

requirements of proposed 

§ 106.40(b)(3)(iv). Likewise, there would 

be no prohibition on a recipient from 

offering additional features in their 

lactation spaces to increase 

functionality and comfort. With respect 

to the location of the lactation space, if 

necessary to address individualized 

concerns about distance from the 

student’s class or activity, the recipient 

may provide an alternative space or 

solution consistent with the student’s 

needs as a reasonable modification to 

prevent discrimination and ensure equal 

access based on pregnancy or related 

conditions under proposed 

§ 106.40(b)(3)(ii) and (4). 

Finally, nothing in the Department’s 

proposed regulations would preempt a 

State or local law that provides greater 

protections to students, as explained in 

the discussion of proposed § 106.6(b). 

This would ensure that if a State or local 

law goes further than the Department’s 

proposed regulations, for example by 

requiring more features in the lactation 

space (such as refrigeration, an outlet, a 

table, etc.), the Department’s proposed 

regulations would not interfere with 

those enhanced requirements. 

Section 106.40(b)(4) Pregnancy or 

Related Conditions—Reasonable 

Modifications for Students Because of 

Pregnancy or Related Conditions 

Current regulations: Section 

106.40(b)(1) prohibits discrimination on 

the basis of ‘‘pregnancy, childbirth, false 

pregnancy, termination of pregnancy or 

recovery therefrom’’ and current 

§ 106.40(b)(4), which requires a 

recipient to treat ‘‘pregnancy, childbirth, 

false pregnancy, termination of 

pregnancy and recovery’’ in the ‘‘same 

manner and under the same policies as 

any other temporary disability with 

respect to any medical or hospital 

benefit, service, plan, or policy which 

such recipient administers, operates, 

offers, or participates in with respect to 

students admitted to the recipient’s 

educational program or activity.’’ 

Proposed regulations: The 

Department proposes adding 

§ 106.40(b)(4), which includes 

protections from current § 106.40(b)(1) 

and (4). Proposed § 106.40(b)(4) would 

explain that, for purposes of this 

section, reasonable modifications to a 

recipient’s policies, practices, or 

procedures for a student who is 

pregnant or is experiencing pregnancyrelated conditions: 

(i) Must be provided on an 

individualized and voluntary basis 

depending on the student’s needs 

resulting from pregnancy or related 

conditions when necessary to prevent 

discrimination and ensure equal access 

to the recipient’s education program or 

activity, unless the recipient can 

demonstrate that making the 

modification would fundamentally alter 

the recipient’s education program or 

activity, when a ‘‘fundamental 

alteration’’ would be a change that is so 

significant that it alters the essential 

nature of the recipient’s education 

program or activity; 

(ii) Must be effectively implemented, 

coordinated, and documented by the 

Title IX Coordinator; and 

(iii) May include but are not limited 

to, breaks during class to attend to 

related health needs, breastfeeding, or 

expressing breast milk; intermittent 

absences to attend medical 

appointments; access to online or other 

homebound education; changes in 

schedule or course sequence; extension 

of time for coursework and rescheduling 

of tests and examinations; counseling; 

changes in physical space or supplies 

(for example, access to a larger desk or 

a footrest); elevator access; or other 

appropriate changes to policies, 

practices, or procedures. 

Reasons: Reasonable modification for 

pregnancy or related conditions 


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standard. The Department proposes 

adding § 106.40(b)(4) to require a 

recipient to offer a student reasonable 

modifications to its policies, practices, 

and procedures to prevent pregnancyrelated discrimination and to ensure 

equal access to a student who is 

pregnant or experiencing pregnancyrelated conditions, unless the recipient 

can demonstrate that making the 

modification would fundamentally alter 

the recipient’s education program or 

activity. 

As noted in the discussion of the 1975 

Title IX Regulations Related to 

Pregnancy and Parental Status (Section 

III.A), the Department’s Title IX 

regulations require a recipient to take a 

variety of steps to ensure equal 

treatment and access for students who 

are pregnant or experiencing pregnancyrelated conditions. Current 

§ 106.40(b)(1) prohibits discrimination 

based on pregnancy or related 

conditions. Current § 106.40(b)(4) 

requires a recipient to treat pregnancy or 

related conditions similarly to other 

temporary disabilities with respect to, 

inter alia, medical or hospital benefits. 

And current § 106.40(b)(5) requires a 

recipient to take specific, tailored steps 

necessary to support students who are 

pregnant or experiencing pregnancyrelated conditions to enable them to 

access its education program or 

activity—regardless of whether the 

recipient takes similar steps for all 

students. The Department now believes 

that the current regulations may not 

sufficiently achieve the objectives of 

Title IX. For example, some recipients 

do not maintain policies related to 

temporary disabilities of students, 

leaving their responsibilities to pregnant 

students under current § 106.40(b)(4) 

unclear. Likewise, the wording of 

current § 106.40(b)(4) may suggest that a 

recipient’s responsibility extends only 

to ‘‘medical or hospital’’ benefits, 

services, plans or policies—for example, 

student health insurance plans—rather 

than requiring day-to-day modifications 

of the education program or activity that 

would be necessary to prevent 

discrimination and ensure equal access 

for pregnant students and students who 

are experiencing pregnancy-related 

conditions in a modern context. 

The Department anticipates that 

recipients would benefit from increased 

clarity as to what proactive steps they 

must take to prevent intentional or 

inadvertent discrimination under Title 

IX. Measures designed to eliminate 

subtle and even unconscious forms of 

discrimination are particularly useful to 

ensure that students who are pregnant 

or experiencing pregnancy-related 

conditions have access to the recipient’s 

education program or activity. It is the 

Department’s current view that the 

proposed regulations provide clear and 

functional requirements for recipients to 

ensure that pregnant students and 

students experiencing pregnancy-related 

conditions are not discriminated 

against, and that these requirements are 

necessary to protect the rights of these 

students and help effectuate Title IX’s 

nondiscrimination goal. 

Recognizing the varied language used 

in different laws, regulations, and 

guidance, the Department proposes the 

reasonable modifications framework set 

out in proposed § 106.40(b)(4) as the 

appropriate framework to achieve Title 

IX’s nondiscrimination objective in the 

educational context. The Department 

notes that this is similar to the 

framework under Title II of the ADA for 

determining necessary different 

treatment to meet the disability-related 

needs of a qualified individual with a 

disability. Specifically, under Title II, a 

public entity must reasonably modify its 

policies, practices, or procedures to 

avoid discrimination unless the 

modifications would fundamentally 

alter the nature of its service, program, 

or activity. 28 CFR 35.130(b)(7). 

Although a pregnancy would not be in 

and of itself a disability under Title II, 

the reasonable modification framework 

of Title II applies to disabilities related 

to pregnancy, as well as all other 

disabilities. 28 CFR part 35, app. C 

(citing 2015 EEOC Pregnancy 

Guidance). It is the Department’s 

current view that this framework would 

achieve Title IX’s nondiscrimination 

mandate and account for both student 

and recipient needs. For example, it 

would require a recipient to act when 

necessary to prevent sex discrimination 

but would allow flexibility for the 

recipient to choose from among a range 

of options appropriate to the student’s 

individualized needs under the 

circumstances. This approach would 

also invite collaboration between the 

student and the recipient to determine 

appropriate reasonable modifications in 

a situation as the recipient seeks to 

determine what is needed. As the 

recipient prevents discriminatory 

barriers in its education program or 

activity through the provision of 

reasonable modifications because of 

pregnancy or related conditions, over 

time, this process would benefit not 

only the students who receive 

reasonable modifications, but also 

subsequent students who may be in 

need of modifications as the recipient 

becomes more efficient and effective at 

providing them. The Department 

expects that this framework not only 

will be most effective in ensuring 

against sex discrimination as required 

by Title IX but also will be familiar to 

most schools and thus, would be 

relatively straightforward to adopt and 

implement in order to prevent 

discrimination and ensure equal access 

for students who are pregnant or 

experiencing related conditions. 

Moreover, Title II’s treatment of 

pregnancy-related conditions informs 

the Department’s understanding of what 

constitutes discrimination against 

students with those conditions. 

The fundamental alteration standard 

would not compromise the integrity of 

a recipient’s education program or 

activity. Proposed § 106.40(b)(4)(i) 

would clarify that a fundamental 

alteration is a change so significant that 

it alters the essential nature of the 

recipient’s education program or 

activity. Determining whether a change 

constitutes a fundamental alteration 

would necessarily be fact-specific. 

Proposed § 106.40(b)(4)(i) provides that 

it would be the recipient’s burden to 

demonstrate that a proposed 

modification would fundamentally alter 

its education program or activity. To the 

extent a recipient determines that a 

requested modification would require a 

fundamental alteration under the 

proposed regulations, it would have to 

provide other modifications that would 

not result in a fundamental alteration 

but would nevertheless ensure that, to 

the maximum extent possible, the 

student who made the request is not 

discriminated against and receives equal 

access to the recipient’s education 

program or activity. The recipient 

would also be required to document 

those efforts as part of the requirement 

under proposed § 106.40(b)(4)(ii) that 

the Title IX Coordinator effectively 

implement, coordinate, and document 

reasonable modifications for students 

because of pregnancy and related 

conditions, and retain such records 

under proposed § 106.8(f)(4). 

Individualized and voluntary basis. 

Proposed § 106.40(b)(4)(i) would require 

a recipient to consider a student’s needs 

on an individualized and voluntary 

basis as situations will vary widely 

based on many unique factors such as 

the age of student, the type of education 

program or activity, the student’s health, 

and other circumstances. Under the 

proposed regulations, a recipient would 

be required to consider all reasonable 

modifications based on pregnancy or 

related conditions necessary to ensure 

equal access in each student’s case 

rather than adopt a generalized 

approach for all students who are 

pregnant or experiencing related 

conditions. The recipient’s actions 


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under the Department’s proposed 

regulations would be initiated by notice 

from the student or the student’s family 

to the Title IX Coordinator; however, it 

would not be incumbent on the student 

or their family to identify or request a 

specific possible reasonable 

modification. For example, a recipient 

may engage in an interactive process 

with the student and, when appropriate, 

the student’s parent, guardian, or other 

authorized legal representative, to 

discuss the student’s needs and options 

that would best ensure equal access. 

The identification of reasonable 

modifications would likely be a 

collaborative effort between the student 

and the recipient, but it would be the 

recipient’s duty to select a reasonable 

modification, offer it, and—if accepted 

by the student on a voluntary basis— 

effectively implement it. As noted, the 

Department’s proposed regulations 

would ensure that a student would 

receive a modification only on a 

voluntary basis, meaning that a student 

could not be required to accept a 

particular modification. The student 

would have the right to choose a 

reasonable modification or to remain in 

their program under the status quo. 

Role of Title IX Coordinator. Proposed 

§ 106.40(b)(4)(ii) would require that the 

Title IX Coordinator effectively 

implement, coordinate, and document 

reasonable modifications provided to 

students because of individual needs 

related to pregnancy or related 

conditions. The steps involved with 

implementation and coordination 

would vary depending on the 

circumstances but would generally 

include determining what modifications 

are appropriate with input from the 

student and any other necessary 

individuals, communicating approved 

modifications to the student and any 

relevant staff members, ensuring that all 

other staff members involved in carrying 

out the modifications were performing 

their roles, and documenting when and 

how modifications took place. For 

example, if a student were entitled to 

breaks from class for lactation, the Title 

IX Coordinator may need to take actions 

such as ensuring that the student’s 

instructors were aware of their 

obligation to allow breaks, that the 

instructors met that obligation, that 

there was a plan for enabling the 

student to make up any time missed, 

and that the student knew how to report 

if there were any problem with 

implementation. The Title IX 

Coordinator would be required to 

document any modifications because of 

pregnancy or related conditions 

provided under proposed 

§ 106.40(b)(4)(ii) and maintain such 

records under proposed § 106.8(f)(4). 

Types of modifications. Proposed 

§ 106.40(b)(4)(iii) would explain that 

reasonable modifications for a student 

based on pregnancy or related 

conditions may include a wide array of 

supports. The Department notes that a 

student’s options for reasonable 

modifications because of pregnancy or 

related conditions are in no way 

affected by reasonable modifications for 

students with disabilities (or vice versa). 

In addition, a student’s options for 

reasonable modifications because of 

pregnancy or related conditions would 

not be limited by the fact that the 

recipient has never had occasion to 

provide a particular modification to any 

student in the past. 

For example, if a student were to 

request intermittent absences to attend 

morning prenatal medical appointments 

and the opportunity to make up lost 

class time without penalty within a 

reasonable amount of time, that could 

be an appropriate reasonable 

modification for a pregnant student 

even if the recipient had not provided 

similar breaks to any other student (for 

example, because none had requested or 

needed them), as long as this 

arrangement was appropriate to the 

pregnant student’s individualized need 

and did not require a fundamental 

alteration of the recipient’s education 

program or activity. Likewise, if the 

recipient felt it could prevent 

discrimination through some alternative 

modification, such as offering the 

student the opportunity to switch to a 

comparable course that met in the 

afternoon, that could be reasonable as 

well. 

Alternatively, depending on the facts 

and circumstances, if a student 

requested that her school waive her 

entire senior year and allow her to 

graduate without those credits as a 

reasonable modification because of 

pregnancy, this would likely present a 

fundamental alteration of the recipient’s 

program under this section. In this case, 

the recipient would be obligated to offer 

alternative modifications sufficient to 

prevent sex discrimination, such as 

allowing the student to complete her 

required number of credits at a slower 

pace or granting her extensions of time 

to complete certain tests or assignments. 

The proposed regulations would 

include several additional examples of 

potential reasonable modifications 

because of pregnancy or related 

conditions to inform both students and 

recipients of their broad range of 

options. 

Section 106.40(b)(5) Pregnancy or 

Related Conditions—Comparable 

Treatment to Temporary Disabilities or 

Conditions 

Current regulations: Section 

106.40(b)(4) requires a recipient to treat 

‘‘pregnancy, childbirth, false pregnancy, 

termination of pregnancy and recovery’’ 

in the ‘‘same manner and under the 

same policies as any other temporary 

disability with respect to any medical or 

hospital benefit, service, plan or policy 

which such recipient administers, 

operates, offers, or participates in with 

respect to students admitted to the 

recipient’s educational program or 

activity.’’ 

Proposed regulations: Proposed 

§ 106.40(b)(5) would add a heading to 

the section, would replace ‘‘pregnancy, 

childbirth, false pregnancy, termination 

of pregnancy and recovery’’ with 

‘‘pregnancy or related conditions or any 

temporary disability resulting 

therefrom,’’ and would add a limitation 

to make clear that this provision would 

apply only when the issue is not 

otherwise addressed under proposed 

§ 106.40(b)(3). 

Reasons: The Department proposes 

minor edits to increase readability and 

align this section with the definition of 

‘‘pregnancy or related conditions’’ in 

proposed § 106.2. In light of the 

proposed addition of a new provision 

on reasonable modifications because of 

pregnancy or related conditions, leave, 

and lactation space at proposed 

§ 106.40(b)(3), the Department proposes 

clarifying that proposed § 106.40(b)(5) 

would apply only to issues not already 

resolved under the process set out in 

proposed § 106.40(b)(3). The 

Department anticipates that this 

clarification would dispel confusion for 

recipients and students, but at the same 

time retain the protection of current 

§ 106.40(b)(4). In addition, the inclusion 

of ‘‘temporary disability therefrom’’ 

would align this provision with 

proposed §§ 106.21(c)(1) and 106.57(c), 

creating consistency and 

comprehensibility for recipients, 

students, and employees. 

Section 106.40(b)(6) Pregnancy or 

Related Conditions—Certification To 

Participate 

Current regulations: Section 

106.40(b)(2) allows a recipient to require 

a student, based on pregnancy, 

childbirth, false pregnancy, termination 

of pregnancy or recovery therefrom, to 

obtain the certification of a physician 

that the student is physically and 

emotionally able to continue 

participation so long as such a 

certification is required of all students 


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for other physical or emotional 

conditions requiring the attention of a 

physician. 

Proposed regulations: The 

Department proposes § 106.40(b)(6) to 

clarify that a recipient may not require 

a student who is pregnant or 

experiencing pregnancy-related 

conditions to provide certification from 

a physician or other licensed healthcare 

provider that the student is physically 

able to participate in the recipient’s 

class, program, or extracurricular 

activity unless: (i) the certified level of 

physical ability or health is necessary 

for participation in the class, program, 

or extracurricular activity; (ii) the 

recipient requires such certification of 

all students participating in the class, 

program, or extracurricular activity; and 

(iii) the information obtained is not used 

as a basis for discrimination prohibited 

by the regulations. It would also remove 

‘‘emotionally.’’ 

Reasons: Under the current 

regulations, a recipient can require a 

student who is pregnant or experiencing 

pregnancy-related conditions to obtain 

certification of physical and emotional 

ability to participate if it requires 

students with other physical or 

emotional conditions to obtain the same 

certification. Although the Department 

acknowledges that there may be reasons 

that this certification could be necessary 

in narrow circumstances, the 

Department now believes that current 

§ 106.40(b)(2)—a provision that exists 

solely to guide recipients on how and 

on what basis to exclude students who 

are pregnant or have pregnancy-related 

conditions—is too broad and permissive 

as written. 

For example, under the current 

regulations, it would be difficult, or 

even impossible, for a student who is 

pregnant or experiencing pregnancyrelated conditions to know whether an 

ability-certification requirement was 

being applied to the student 

appropriately because that student 

would not necessarily know whether or 

which other students had been asked for 

the same certification, especially in light 

of the privacy protections applicable to 

the health conditions of other students. 

The current regulations also may lead to 

different treatment of pregnant students 

from students who are not pregnant and 

do not have pregnancy-related 

conditions because they allow 

recipients to single out pregnant 

students, and students with ‘‘physical 

and emotional conditions,’’ for abilitycertification requirements. In addition, 

the current regulations lack any 

requirement that the certified level of 

physical ability or health be necessary 

to the activity for which a recipient 

seeks medical certification prior to 

permitting participation by a student 

who is pregnant or experiencing 

pregnancy-related conditions. 

To address these concerns and to 

prevent and minimize the possibility of 

sex-based discrimination, the 

Department proposes clarifying that a 

recipient may not require a student who 

is pregnant or experiencing pregnancyrelated conditions to provide a 

certification of physical ability or health 

unless (i) a certain level of physical 

ability or health is necessary for 

participation in a specific class, 

program, or extracurricular activity; (ii) 

it requires such certification of all 

students in the same class, program, or 

extracurricular activity; and (iii) the 

information obtained is not used as a 

basis for sex discrimination. The 

Department proposes allowing 

certification from licensed healthcare 

providers in addition to physicians to 

allow greater flexibility and decrease 

burden to students being treated by 

these providers. Finally, the Department 

also proposes deleting ‘‘emotionally’’ 

from current § 106.40(b)(2), as it is 

unnecessary and suggests a stereotypical 

assumption regarding the mental health 

of students who are pregnant or 

recovering from childbirth. With these 

changes, the Department aims to ensure 

that pregnant students and students 

who are experiencing pregnancy-related 

conditions would not face different 

burdens than other students regarding 

certification to participate in the 

recipient’s education program or 

activity. 

In proposing these revisions, the 

Department notes several points. First, 

nothing in proposed § 106.40(b)(6) 

would bear in any way on the rights of 

a student experiencing, for example, 

postpartum depression. That student 

would be protected from discrimination 

based on pregnancy or related 

conditions under proposed 

§ 106.40(b)(1), particularly considering 

the clarified definition of ‘‘pregnancy or 

related conditions’’ at proposed § 106.2, 

which would extend to medical 

conditions related to pregnancy. The 

recipient would also be required to 

provide the student reasonable 

modifications, leave, and the other steps 

set out in proposed § 106.40(b)(3). 

Likewise, nothing in proposed 

§ 106.40(b)(6) would limit a student’s 

rights or a recipient’s obligations under 

Section 504, which prohibits 

discrimination on the basis of disability, 

whether physical or mental in nature. 

Depending on the nature of the 

impairment, the student would also 

likely qualify for protection as a person 

with a disability under Section 504. To 

the extent a recipient has a specific 

concern about the mental health of a 

student who is pregnant or experiencing 

pregnancy-related conditions, the 

proposed provision would not preclude 

the recipient from making an inquiry, 

provided that such inquiry did not 

subject the student to discrimination on 

the basis of sex or disability. 

Second, proposed § 106.40(b)(6) 

would pertain only to limited situations 

in which physical ability or health is 

necessary for a specific class, program, 

or extracurricular activity. Examples 

when this situation might arise include 

school sports, a vocational course (e.g., 

firefighting) that includes physicalability requirements to perform specific 

tasks, or a class that will expose 

students to hazardous chemicals. 

Outside of these limited situations, the 

Department does not anticipate that 

most recipients would have any reason 

to request a certification of physical 

ability or health prior to allowing any 

students to participate in most classes, 

programs, or extracurricular activities. 

Third, a recipient may not forbid 

participation as a general matter by 

students who are pregnant or 

experiencing pregnancy-related 

conditions. For example, if a high 

school requires certification of physical 

ability or health from all students who 

wish to join its track team, it may 

require that certification from a 

pregnant student. The school may not, 

however, require that a student certify 

prior to participation that the student is 

not pregnant or require only pregnant 

students to provide a certification of 

physical ability or health. Likewise, a 

recipient would be prohibited under 

proposed § 106.40(b)(6)(iii) from using 

any information obtained through its 

request for certification of physical 

ability or health to discriminate based 

on sex. 

Fourth, a recipient’s default 

assumption should be that a student 

who is pregnant or experiencing 

pregnancy-related conditions may 

participate, unless there is a specific, 

documented medical reason tied to the 

physical ability or health requirements 

of the class, program, or extracurricular 

activity that cannot be overcome with 

reasonable modifications for a student 

who is pregnant or experiencing 

pregnancy-related conditions under 

proposed § 106.40(b)(4). If reasonable 

modifications because of a student’s 

pregnancy or related conditions would 

prevent discrimination by ensuring 

participation, the recipient must 

provide these modifications and allow 

participation. 

Finally, this provision would not be 

intended to address how or when a 


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recipient may request that a student 

provide medical documentation to 

support the need for certain reasonable 

modifications because of pregnancy or 

related conditions under proposed 

§ 106.40(b)(4) or to determine a 

minimum amount of leave to which a 

student would be entitled under 

proposed § 106.40(b)(3)(iii). Although 

the Department anticipates that such 

documentation will be unnecessary in 

most cases, it could be appropriate in 

limited situations depending on the 

circumstances of a student’s needs, the 

education program or activity, and the 

modification at issue. 

G. Discrimination Based on an 

Employee’s Parental, Family, Marital 

Status, Pregnancy, or Related 

Conditions 

Section 106.51(b)(6) Employment 

Current regulations: Section 106.51 

describes certain prohibitions on sex 

discrimination in a recipient’s 

employment actions. Specifically, 

current § 106.51(b)(6) states that the 

subpart applies to ‘‘[g]ranting and return 

from leaves of absence, leave for 

pregnancy, childbirth, false pregnancy, 

termination of pregnancy, leave for 

persons of either sex to care for children 

or dependents, or any other leave.’’ 

Proposed regulations: The 

Department proposes replacing 

‘‘pregnancy, childbirth, false pregnancy, 

termination of pregnancy’’ with 

‘‘pregnancy or related conditions.’’ 

Reasons: As explained in greater 

detail in the Department’s discussion of 

the proposed definition of ‘‘pregnancy 

or related conditions’’ (§ 106.2), the 

Department’s tentative view is that 

using this term will add clarity and 

consistency regarding which 

individuals each provision covers. 

Section 106.57 Parental, Family, or 

Marital Status; Pregnancy or Related 

Conditions 

Current regulations: The section 

heading is ‘‘Marital or parental status.’’ 

Proposed regulations: The 

Department proposes changing this 

section heading to ‘‘Parental, family, or 

marital status; pregnancy or related 

conditions.’’ 

Reasons: The proposed section 

heading would more accurately describe 

the content of the section. 

Section 106.57(a)(1) General 

Current regulations: Section 

106.57(a)(1) states that a recipient shall 

not apply any policy or take any 

employment action ‘‘[c]oncerning the 

potential marital, parental, or family 

status of an employee or applicant for 

employment which treats persons 

differently on the basis of sex.’’ 

Proposed regulations: The 

Department proposes the following edits 

to current § 106.57(a) and (a)(1): 

• Changing the heading of § 106.57(a) 

from ‘‘General’’ to ‘‘Status generally’’; 

• Changing ‘‘apply’’ to ‘‘adopt or 

apply’’ in proposed § 106.57(a); and 

• Changing ‘‘potential’’ to ‘‘current, 

potential, or past’’ in proposed 

§ 106.57(a)(1). 

Reasons: The Department proposes 

these three changes for the reasons set 

out in the discussion of proposed 

§ 106.40(a), which applies a similar 

prohibition on discrimination to 

students. The Department’s tentative 

view is also that using the same terms 

throughout the regulations would better 

enable recipients, students, and 

employees to understand and apply 

them. Specifically, with respect to the 

change from ‘‘apply’’ to ‘‘adopt or 

apply,’’ the Department’s tentative view 

is that a recipient should be prohibited 

from adopting discriminatory policies 

based on pregnancy or related 

conditions. Adding ‘‘adopt’’ is intended 

to enable persons to understand that 

they may challenge a rule as being 

discriminatory even before it has been 

applied and caused harm. For example, 

if a recipient adopted a rule that it 

would not hire pregnant individuals, 

this rule would raise compliance 

concerns even if the recipient had not 

yet applied it to exclude an individual 

applicant. Likewise, the Department’s 

tentative view is that clarifying that 

Title IX’s coverage includes current and 

past parental, family, or marital status 

would more fully implement Title IX’s 

guarantee against sex discrimination. 

For example, the proposed regulations 

would address a situation in which a 

recipient disciplined employees who 

are mothers for excessive absences more 

harshly than employees who are fathers 

because the recipient assumed that the 

mothers were less committed employees 

due to family obligations. 

Section 106.57(b) Pregnancy or 

Related Conditions 

Current regulations: Section 106.57(b) 

states that a recipient shall not 

discriminate against or exclude from 

employment any employee or applicant 

for employment on the basis of 

pregnancy, childbirth, false pregnancy, 

termination of pregnancy, or recovery 

therefrom. 

Proposed regulations: The 

Department proposes the following edits 

to current § 106.57(b): 

• Changing the heading of § 106.57(b) 

from ‘‘Pregnancy’’ to ‘‘Pregnancy or 

related conditions’’; and 

• Replacing ‘‘pregnancy, childbirth, 

false pregnancy, termination of 

pregnancy, or recovery therefrom’’ with 

‘‘current, potential, or past pregnancy or 

related conditions.’’ 

Reasons: The Department proposes 

these two changes for the reasons set out 

in the discussion of proposed 

§ 106.40(b), which would apply a 

similar prohibition on discrimination to 

students. The Department’s tentative 

view is also that using the same terms 

throughout the regulations will better 

enable recipients and those covered to 

understand and apply them. In this 

section, adding ‘‘lactation’’ and ‘‘related 

medical conditions’’ to the bases already 

explicitly covered would be consistent 

with Title IX’s goal of preventing 

discrimination and eliminating barriers 

to equal access based on sex. For the 

reasons explained in the discussion of 

the proposed definition of the term 

‘‘pregnancy or related conditions’’ 

(§ 106.2), this change would address 

more types of sex discrimination in 

employment in the educational context. 

For example, this proposed formulation 

would make clear that a recipient could 

not take an adverse employment action 

against an employee because the 

employee needed to miss work to 

receive treatment for mastitis, a medical 

condition related to lactation. It would 

also clarify that a recipient could not 

discriminate based on current, potential, 

and past pregnancy or related 

conditions. Proposed § 106.57(b) would 

also prohibit a recipient from 

terminating an employee for a past 

complication due to pregnancy, for 

example, out of concern that if the 

employee became pregnant again, the 

employee would require a long leave 

time to recover. See 2015 EEOC 

Pregnancy Guidance (‘‘[I]f an employee 

was discharged during her pregnancyrelated medical leave (i.e., leave 

provided for pregnancy or recovery from 

pregnancy) or her parental leave (i.e., 

leave provided to bond with and/or care 

for a newborn or adopted child), and if 

the employer’s explanation for the 

discharge is not believable, a violation 

of Title VII may be found.’’) 

Section 106.57(c) Comparable 

Treatment to Temporary Disabilities or 

Conditions 

Current regulations: Section 106.57(c) 

states that a recipient shall treat 

pregnancy, childbirth, false pregnancy, 

termination of pregnancy, and recovery 

therefrom and any temporary disability 

resulting therefrom as any other 

temporary disability for all job-related 

purposes, including commencement, 

duration and extensions of leave, 

payment of disability income, accrual of 


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seniority and any other benefit or 

service, and reinstatement, and under 

any fringe benefit offered to employees 

by virtue of employment. 

Proposed regulations: The 

Department proposes the following 

revisions to current § 106.57(c): 

• Changing the heading from 

‘‘Pregnancy as temporary disability’’ to 

‘‘Comparable treatment to temporary 

disabilities or conditions’’; and 

• Replacing ‘‘pregnancy, childbirth, 

false pregnancy, termination of 

pregnancy, or recovery therefrom and’’ 

with ‘‘pregnancy or related conditions 

or.’’ 

Reasons: The Department proposes 

these two changes for the reasons set out 

in the discussion of proposed 

§ 106.40(b)(5), which applies to 

students. The Department’s current 

view is also that using the same terms 

throughout the regulations will better 

enable recipients and those covered to 

understand and apply them. Adding 

‘‘lactation’’ and ‘‘related medical 

conditions’’ to the bases already 

explicitly covered in current § 106.57(c) 

would be consistent with Title IX’s goal 

of preventing discrimination and 

eliminating barriers to equal access 

based on sex. For the reasons explained 

in the discussion of the proposed 

definition of the term ‘‘pregnancy or 

related conditions’’ (§ 106.2), this 

change will address a more 

comprehensive range of circumstances 

that could be the subject of sex 

discrimination in employment in the 

educational context. For example, under 

the proposed regulations, if a recipient 

provided paid leave time under a 

temporary disability policy for an 

employee to receive physical therapy to 

recovery from a broken leg, it would 

have to allow comparable paid time for 

an employee who needed to attend 

physical therapy to address a pelvic 

injury due to childbirth. 

Section 106.57(d) Pregnancy Leave 

Current regulations: Section 106.57(d) 

states that in the case of a recipient 

which does not maintain a leave policy 

for its employees, or in the case of an 

employee with insufficient leave or 

accrued employment time to qualify for 

leave under such a policy, a recipient 

shall treat pregnancy, childbirth, false 

pregnancy, termination of pregnancy, 

and recovery therefrom as a justification 

for a leave of absence without pay for 

a reasonable period of time, at the 

conclusion of which the employee shall 

be reinstated to the status which she 

held when the leave began or to a 

comparable position, without decrease 

in rate of compensation or loss of 

promotional opportunities, or any other 

right or privilege of employment. 

Proposed regulations: The 

Department proposes the following edits 

to current § 106.57(d): 

• Replacing ‘‘pregnancy, childbirth, 

false pregnancy, termination of 

pregnancy, or recovery therefrom’’ with 

‘‘pregnancy or related conditions’’; 

• Revising ‘‘leave of absence’’ to 

‘‘voluntary leave of absence’’; and 

• Replacing ‘‘the status which she 

held’’ with ‘‘the status held.’’ 

Reasons: The Department proposes 

these three changes for the reasons set 

out in the discussion of proposed 

§ 106.40(b)(3)(iii), which applies to 

students. The Department’s tentative 

view is also that using the same terms 

throughout the regulations would better 

enable recipients, students, and 

employees to understand and apply 

them. Adding ‘‘lactation’’ and ‘‘related 

medical conditions’’ to the bases already 

explicitly covered is consistent with 

Title IX’s goal of preventing 

discrimination and eliminating barriers 

to equal access based on sex. For the 

reasons explained in the discussion of 

the proposed definition of the term 

‘‘pregnancy or related conditions’’ 

(§ 106.2), this change would address a 

more comprehensive range of 

circumstances that could be the subject 

of sex discrimination in employment in 

the educational context. The 

Department proposes adding 

‘‘voluntary’’ to clarify that an employee 

must not be forced to take leave due to 

pregnancy or related conditions, but 

rather must have the right to choose 

whether to take leave. Finally, the 

Department proposes clarifying the text 

of the provision for readability to 

replace ‘‘the status which she held’’ 

with ‘‘the status held.’’ 

Section 106.57(e) Lactation Time and 

Space 

Current regulations: None. 

Proposed regulations: The 

Department proposes adding 

requirements in proposed § 106.57(e) 

that a recipient must: (1) provide 

reasonable break time for an employee 

to express breast milk or breastfeed as 

needed; and (2) ensure the availability 

of a lactation space, which must be a 

space other than a bathroom that is 

clean, shielded from view, free from 

intrusion from others, and may be used 

by an employee for expressing breast 

milk or breastfeeding as needed. 

Reasons: Overview. Ensuring equal 

access to employment in the education 

sector regardless of sex was a central 

purpose of Title IX at the time of its 

passage. See 118 Cong. Rec. at 5810 

(statement of Dr. Bernice Sandler 

explaining that employers in the 

education sector often refused to hire 

women because of concerns about 

absenteeism due to family obligations, 

despite the fact that the Women’s 

Bureau of the Department of Labor 

found that ‘‘men lose more time off the 

job because of hernias than do women 

because of childbirth and pregnancy’’). 

OCR and the Department received 

feedback from stakeholders during the 

June 2021 Title IX Public Hearing and 

in meetings held in 2022 under 

Executive Order 12866, after the NPRM 

was submitted to OMB, that civil rights 

protections based on pregnancy or 

related conditions are critical in the 

educational context. The Department 

now believes that clearly defined rights 

to lactation time and space are essential 

to prevent different treatment on the 

basis of sex and exclusion from 

recipient workplaces. 

For employees in the education 

sector, lactation needs may present 

different challenges depending on the 

nature of the employment. Employees, 

particularly in elementary schools and 

secondary schools, may lack an 

appropriate place to express breast milk 

and instead resort to expressing milk in 

an unsanitary environment, such as a 

restroom stall, a supply closet, or even 

a car. If appropriate space is not 

provided, these employees may have 

little choice but to attend to their 

lactation needs in a space that is open 

and, in doing so, risk exposing 

themselves to colleagues and students. 

Or these employees may be denied the 

reasonable break time necessary to 

express milk, leading to painful health 

complications. If an employee is unable 

to access appropriate time and space for 

lactation, the employee may have no 

choice but to leave their employment in 

order to continue to care for their child’s 

nutritional needs in the way the 

employee thinks best. To prevent subtle 

forms of sex discrimination and ensure 

equal access regardless of sex, the 

Department would require that a 

recipient: (1) provide reasonable break 

time for an employee to express breast 

milk or breastfeed as needed; and (2) 

ensure the availability of a lactation 

space, which must be a space other than 

a bathroom that is clean, shielded from 

view, free from intrusion from others, 

and may be used by an employee for 

expressing breast milk or breastfeeding 

as needed. 

Overall, it is the Department’s current 

view that requiring a recipient to 

provide its employees with reasonable 

break time and space for lactation 

would prevent discrimination and 

address sex-based barriers to equal 

access in employment by allowing 


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employees to attend to lactation needs 

while at work. Absent this rule, and 

depending on the circumstances, an 

employee could face discipline or job 

loss for absenteeism if the employee 

needed reasonable break time or space 

to express breast milk. An employee 

could also face harassment or retaliation 

because the current regulations do not 

clearly address lactation, including 

lactation time and space. Proposed 

§ 106.57(e) would clearly set out a 

recipient’s obligation, so both recipients 

and employees would have clear 

information about their obligations and 

rights consistent with Title IX. 

Reasonable break time. Reasonable 

break time is necessary to ensure that a 

lactating employee can successfully 

access their school-based employment. 

As noted by the EEOC, ‘‘a nursing 

mother will typically need to breastfeed 

or express breast milk using a pump two 

or three times over the duration of an 

eight-hour workday.’’ 2015 EEOC 

Pregnancy Guidance. Because the 

physical needs and employment 

scenarios may vary by individual, 

proposed § 106.57(e)(1) would provide 

flexibility for a recipient to adapt to a 

range of situations. The time must be 

sufficient for the employee—every few 

hours—to travel to the lactation space, 

express breast milk or breastfeed, wash 

their lactation supplies if any, store the 

milk, and return to the work area. 

Lactation space. Proposed 

§ 106.57(e)(2) would also require a 

recipient to ensure the availability of a 

lactation space, which must be a space 

other than a bathroom that is clean, 

shielded from view, free from intrusion 

from others, and may be used by an 

employee for expressing breast milk or 

breastfeeding as needed. This 

requirement would be like the lactation 

space that the Department would 

require a recipient to provide to a 

student under proposed 

§ 106.40(b)(3)(iv). As explained in 

greater detail in the discussion of 

proposed § 106.40(b)(3)(iv), the 

Department expects that these are also 

the appropriate minimum standards to 

prevent discrimination and create equal 

access for lactating employees. 

Specifically, these standards would 

allow an employee to express breast 

milk in a private, clean, and appropriate 

location as needed. Because the 

standards for both students and 

employee spaces would be the same, a 

recipient could choose to offer a 

common space for both students and 

employees, thereby minimizing cost 

while ensuring civil rights compliance. 

The Department further notes that 

nothing in proposed § 106.57(e)(1) or (2) 

would preempt State or local laws that 

do not conflict with Title IX and may 

afford greater protection to employees 

regarding lactation time and space, as 

explained in greater detail in the 

discussion of proposed § 106.6(b). 

Section 106.60 Pre-Employment 

Inquiries 

Current regulations: Section 106.60 

prohibits pre-employment inquiries 

regarding marital status and limits 

permissible inquiries as to sex. 

Proposed regulations: The 

Department proposes revisions to make 

this section consistent with related 

provisions at proposed § 106.21(c) 

regarding pre-admission inquiries and 

to enhance readability. Specifically, the 

Department proposes to replace ‘‘[a] 

recipient may make pre-employment 

inquiry as to the sex of an applicant for 

employment, but only if such inquiry is 

made equally of such applicants of both 

sexes and if the results of such inquiry 

are not used in connection with 

discrimination prohibited by this part’’ 

with ‘‘[a] recipient may ask an applicant 

for employment to self-identify their 

sex, but only if this question is asked of 

all applicants and if the response is not 

used as a basis for discrimination 

prohibited by this part’’ in proposed 

§ 106.60(b). 

Reasons: As explained in the 

discussion of proposed § 106.21(c), the 

Department proposes replacing the term 

‘‘in connection with discrimination’’ 

with ‘‘as a basis for discrimination’’ to 

enhance clarity and consistency with 

usage elsewhere in the proposed 

regulations but does not intend this as 

a substantive change in meaning. In 

addition, the Department proposes 

revising § 106.60(b) to refer to ‘‘all 

applicants’’ instead of to ‘‘both sexes’’ in 

recognition of the fact that some 

applicants may have a nonbinary gender 

identity. For the same reason, if a 

recipient asks applicants to self-identify 

their sex and provides options from 

which an applicant may choose, nothing 

in the current or proposed regulations 

would prohibit a recipient from offering 

nonbinary options in addition to male 

and female options. 

IV. Title IX’s Coverage of All Forms of 

Sex Discrimination 

Statute: Title IX states that ‘‘[n]o 

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). Title IX includes 

several statutory exemptions and 

exceptions from its coverage, including 

for the membership practices of certain 

organizations, admissions to private 

undergraduate colleges, educational 

institutions that train individuals for the 

military services or merchant marine, 

and educational institutions that are 

controlled by a religious organization to 

the extent that application of Title IX 

would be inconsistent with the religious 

tenets of the controlling organization. 20 

U.S.C. 1681(a)(1)–(9). Title IX also 

includes a provision concerning the 

discrete context of ‘‘living facilities for 

the different sexes.’’ 20 U.S.C. 1686. The 

Department 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. 

The statute does not explicitly 

reference distinct forms of sex 

discrimination, such as discrimination 

based on sex stereotypes, sex 

characteristics, pregnancy or related 

conditions, sexual orientation, or gender 

identity, or discrimination taking the 

form of sex-based harassment. Although 

it does not address these specific 

applications, the Supreme Court made 

clear in 1982 that ‘‘if we are to give Title 

IX the scope that its origins dictate, we 

must accord it a sweep as broad as its 

language.’’ N. Haven Bd. of Educ., 456 

U.S. at 521. 

A. History of the Department’s 

Interpretation of Title IX’s Coverage 

The Department’s Title IX regulations 

have long included provisions 

explaining Title IX’s coverage of 

discrimination based on pregnancy or 

related conditions and sex stereotypes. 

See, e.g., 34 CFR 106.21(c)(2) and (3), 

106.40(b), 106.51(b)(6), 106.57(b) 

through (d), 106.61. In 2006 and 2020, 

the Department amended the 

regulations to address additional 

specific applications of Title IX’s 

coverage of discrimination based on sex 

stereotypes. See 34 CFR 106.34(b)(4)(i), 

106.45(b)(1)(iii). Although the 

Department has not previously used its 

rulemaking authority to clarify Title IX’s 

specific application to discrimination 

based on sex characteristics, sexual 

orientation, or gender identity, OCR has 

previously addressed these applications 

of Title IX through guidance and 

administrative enforcement. 

OCR first issued guidance on Title 

IX’s application to sexual orientation 

discrimination and the rights of gay and 

lesbian students in its 1997 Sexual 

Harassment Guidance, which stated: 

‘‘Although Title IX does not prohibit 

discrimination on the basis of sexual 

orientation, sexual harassment directed 

at gay or lesbian students may constitute 


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11 In August 2016, the Department adopted 

regulations governing Equity Assistance Centers 

under Title IV of the Civil Rights Act of 1964 

defining ‘‘sex desegregation’’ to mean ‘‘assignment 

of students to public schools and within those 

schools without regard to their sex (including 

transgender status; gender identity; sex stereotypes, 

such as treating a person differently because he or 

she does not conform to sex-role expectations 

because he or she is attracted to or is in a 

relationship with a person of the same sex; and 

pregnancy and related conditions), including 

providing students with a full opportunity for 

participation in all educational programs regardless 

of their sex.’’ See 34 CFR 270.7; U.S. Dep’t of Educ., 

Office of Elementary and Secondary Educ., Final 

Regulations, Equity Assistance Centers (Formerly 

Desegregation Assistance Centers (DAC)), 81 FR 

46807, 46816 (July 18, 2016), https://

www.govinfo.gov/content/pkg/FR-2016-07-18/pdf/ 

2016-16811.pdf. This interpretation of the term 

‘‘sex’’ is relevant to the interpretation of Title IX 

because Title IX amended Title IV in 1972 to add 

sex segregation to the types of segregation that 

could be addressed by technical assistance. 

Similarly, in December 2016, DOL adopted 

regulations under Section 188 of WIOA, which 

incorporates Title IX’s prohibition on sex 

discrimination. These regulations provide that 

unlawful sex-based discriminatory practices 

include ‘‘[t]reating an individual adversely because 

the individual identifies with a gender different 

from that individual’s sex assigned at birth.’’ See 29 

CFR 38.7; U.S. Dep’t of Labor, Office of the Sec’y, 

Final Rule, Implementation of the 

Nondiscrimination and Equal Opportunity 

Provisions of WIOA, 81 FR 87130, 87221 (Dec. 2, 

2016), https://www.govinfo.gov/content/pkg/FR2016-12-02/pdf/2016-27737.pdf. Neither of these 

regulatory provisions has been altered or challenged 

since 2016. 

sexual harassment prohibited by Title 

IX.’’ 62 FR 12039 (footnote omitted). In 

2001, OCR revised and reissued this 

guidance after the Supreme Court issued 

decisions in Gebser and Davis, two 

cases that addressed sexual harassment 

in educational settings, and Oncale, a 

case involving same-sex sexual 

harassment in the workplace. 2001 

Revised Sexual Harassment Guidance at 

i-ii. This revised guidance added a few 

clarifications, including that 

‘‘sufficiently serious sexual harassment 

is covered by Title IX even if the hostile 

environment also includes taunts based 

on sexual orientation,’’ id. at 27 n.15, 

that ‘‘it can be discrimination on the 

basis of sex to harass a student on the 

basis of the victim’s failure to conform 

to stereotyped notions of masculinity 

and femininity,’’ id. at v, and that ‘‘Title 

IX prohibits sexual harassment 

regardless of the sex of the harasser, i.e., 

even if the harasser and the person 

being harassed are members of the same 

sex,’’ id. at 3. The 1997 Sexual 

Harassment Guidance and 2001 Revised 

Sexual Harassment Guidance thus 

addressed some specific forms of sex 

discrimination against gay, lesbian, and 

gender-nonconforming students. They 

did not specifically address other forms 

of sex discrimination, such as 

discrimination based on gender identity. 

In October 2010, OCR issued a Dear 

Colleague Letter on Harassment and 

Bullying, which discussed Title IX’s 

application to LGBT students: 

Although Title IX does not prohibit 

discrimination based solely on sexual 

orientation, Title IX does protect all students, 

including lesbian, gay, bisexual, and 

transgender (LGBT) students, from sex 

discrimination. When students are subjected 

to harassment on the basis of their LGBT 

status, they may also . . . be subjected to 

forms of sex discrimination prohibited under 

Title IX. The fact that the harassment 

includes anti-LGBT comments or is partly 

based on the target’s actual or perceived 

sexual orientation does not relieve a school 

of its obligation under Title IX to investigate 

and remedy overlapping sexual harassment 

or gender-based harassment. 

2010 Dear Colleague Letter on 

Harassment and Bullying at 8 

In July 2013, the Federal government 

resolved its first administrative 

enforcement case finding compliance 

concerns under Title IX regarding a 

school’s denial of a transgender 

student’s access to sex-separate facilities 

and accommodations during an 

overnight school trip. In their resolution 

letter, OCR and the Civil Rights Division 

of the U.S. Department of Justice (DOJ) 

emphasized the district’s failure to 

contemplate any reasonable alternative 

arrangements that would have been less 

burdensome on the student. OCR Case 

No. 09–12–1020, Arcadia Unified Sch. 

Dist. (July 24, 2013) (resolution letter 

and agreement) (Arcadia Resolution 

Letter and Agreement), www.justice.gov/ 

sites/default/files/crt/legacy/2013/07/ 

26/arcadialetter.pdf; www.justice.gov/ 

sites/default/files/crt/legacy/2013/07/ 

26/arcadiaagree.pdf. In the resolution 

agreement, the district agreed to, among 

other things, treat the transgender male 

student ‘‘the same as other male 

students in all respects.’’ 

In 2014, OCR issued two more 

guidance documents that further 

clarified Title IX’s coverage of gender 

identity discrimination. In April 2014, 

OCR issued the 2014 Q&A on Sexual 

Violence, which stated for the first time 

in a guidance document that Title IX’s 

prohibition on sex discrimination 

extends to claims of discrimination 

based on gender identity. 2014 Q&A on 

Sexual Violence at 5. Then in December 

2014, OCR issued a Question-andAnswer document on single-sex classes 

and extracurricular activities, which 

stated that ‘‘[u]nder Title IX, a recipient 

generally must treat transgender 

students consistent with their gender 

identity in all aspects of the planning, 

implementation, enrollment, operation, 

and evaluation of single-sex classes.’’ 

U.S. Dep’t of Educ., Office for Civil 

Rights, Questions and Answers on Title 

IX and Single-Sex Elementary and 

Secondary Classes and Extracurricular 

Activities at 25 (Dec. 1, 2014) (2014 

Q&A on Single-Sex Elementary and 

Secondary Classes and Activities), 

www.ed.gov/ocr/docs/faqs-title-ixsingle-sex-201412.pdf. Although the 

2014 Q&A on Sexual Violence was 

rescinded and replaced with new 

guidance in September 2017, the 2014 

Q&A on Single-Sex Elementary and 

Secondary Classes and Activities is still 

in effect. 

In May 2016, OCR and DOJ’s Civil 

Rights Division issued a joint Dear 

Colleague Letter addressing the rights of 

transgender students under Title IX, 

stating that ‘‘the Departments treat a 

student’s gender identity as the 

student’s sex for purposes of Title IX 

and its implementing regulations.’’ 2016 

Dear Colleague Letter on Title IX and 

Transgender Students at 2. The 2016 

Dear Colleague Letter then explained 

that ‘‘[t]his means that a school must not 

treat a transgender student differently 

from the way it treats other students of 

the same gender identity.’’ Id. The letter 

addressed the application of Title IX 

with respect to harassment and issues 

related to identification documents, 

names and pronouns, sex-separate 

activities and facilities, and privacy and 

education records. It also included an 

extensive set of citations to examples of 

OCR’s resolutions of past Title IX 

complaints and similar interpretations 

by courts and other agencies of Federal 

laws prohibiting sex discrimination. 

After the 2016 Dear Colleague Letter on 

Title IX and Transgender Students was 

issued, the Departments of Education 

and Labor revised regulations 

implementing other Federal laws to 

adopt similar interpretations that 

prohibitions on sex discrimination 

include discrimination based on gender 

identity, as well as many aspects of 

discrimination based on sexual 

orientation.11

In August 2016, a Federal district 

court issued an order finding that the 

interpretation set out in the 2016 Dear 

Colleague Letter on Title IX and 

Transgender Students was contrary to 

law and should not have been issued 

without undergoing the notice-andcomment process required by the 

Administrative Procedure Act and 

granted a nationwide preliminary 

injunction barring OCR and DOJ from 

relying on the 2016 Dear Colleague 

Letter on Title IX and Transgender 

Students in their enforcement of Title 

IX. Texas v. United States, 201 F. Supp. 

3d 810 (N.D. Tex. 2016). Other Federal 

courts that reviewed the Department’s 

interpretation found it to be reasonable. 

See, e.g., G.G. ex rel. Grimm v. 


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Gloucester Cnty. Sch. Bd., 822 F.3d 709, 

723 (4th Cir. 2016) (according 

controlling weight to the ‘‘Department’s 

interpretation of its own regulation, 

§ 106.33), vacated and remanded, 137 S. 

Ct. 1239, 197 L. Ed. 2d 460 (2017); Bd. 

of Educ. of the Highland Loc. Sch. Dist. 

v. U.S. Dep’t of Educ., 208 F. Supp. 3d 

850, 870 (S.D. Ohio 2016) (same); 

Whitaker v. Kenosha Unified Sch. Dist. 

No. 1 Bd. of Educ., No. 16–CV–943–PP, 

2016 WL 5239829, at *3 (E.D. Wis. Sept. 

22, 2016) (same), aff’d sub nom. 

Whitaker By Whitaker v. Kenosha 

Unified Sch. Dist. No. 1 Bd. of Educ., 

858 F.3d 1034 (7th Cir. 2017), abrogated 

on other grounds as recognized by Ill. 

Republican Party v. Pritzker, 973 F.3d 

760, 762 (7th Cir. 2020). 

In February 2017, DOJ and OCR 

issued a letter withdrawing the 

statements of policy and guidance 

reflected in the 2016 Dear Colleague 

Letter on Title IX and Transgender 

Students ‘‘in order to further and more 

completely consider the legal issues 

involved.’’ U.S. Dep’t of Justice and U.S. 

Dep’t of Educ., Office for Civil Rights, 

Dear Colleague Letter on Transgender 

Students at 1 (Feb. 22, 2017) (2017 Dear 

Colleague Letter on Transgender 

Students), https://www2.ed.gov/about/ 

offices/list/ocr/letters/colleague-201702- 

title-ix.pdf. On March 3, 2017, the court 

dissolved the preliminary injunction 

when the plaintiffs voluntarily 

dismissed the lawsuit. Plaintiff’s Notice 

of Voluntary Dismissal, Texas v. United 

States, No. 7:16–cv–00054 (N.D. Tex. 

Mar. 3, 2017), ECF No. 128. 

When the Department amended the 

Title IX regulations in May 2020, it 

declined to address Title IX’s coverage 

of discrimination on the basis of gender 

identity or sexual orientation, but noted 

in the preamble to the 2020 

amendments that the most recent 

position of the United States in thenpending Supreme Court cases was ‘‘(1) 

that the ordinary public meaning of ‘sex’ 

at the time of Title VII’s passage was 

biological sex and thus the appropriate 

construction of the word ‘sex’ does not 

extend to a person’s sexual orientation 

or transgender status, and (2) that 

discrimination based on transgender 

status does not constitute sex 

stereotyping but a transgender plaintiff 

may use sex stereotyping as evidence to 

prove a sex discrimination claim if 

members of one sex (e.g., males) are 

treated less favorably than members of 

the other sex (e.g., females).’’ 85 FR 

30178. The Department also declined to 

define the term ‘‘sex’’ because it 

determined that doing so was not 

necessary: Sexual harassment ‘‘does not 

depend on whether the definition of 

‘sex’ involves solely the person’s 

biological characteristics (as at least one 

commenter urged) or whether a person’s 

‘sex’ is defined to include a person’s 

gender identity (as other commenters 

urged).’’ Id. The Department asserted, 

however, that ‘‘Title IX and its 

implementing regulations include 

provisions that presuppose sex as a 

binary classification’’ and that the 

Department has previously 

acknowledged ‘‘physiological 

differences between the male and 

female sexes.’’ Id. 

Subsequently in June 2020, the 

Supreme Court held in Bostock that sex 

discrimination, as prohibited by Title 

VII, encompasses discrimination based 

on sexual orientation and gender 

identity, 140 S. Ct. at 1737, even on the 

assumption (which the Court accepted 

for sake of argument) that ‘‘sex’’ refers 

‘‘only to biological distinctions between 

male and female,’’ id. at 1739. The Court 

stated that to discriminate on the basis 

of sexual orientation or gender identity 

‘‘requires an employer to intentionally 

treat individual employees differently 

because of their sex.’’ Id. at 1742. The 

Court explained that when an employer 

fires a person for being gay or 

transgender, the employer necessarily 

fires that person for ‘‘traits or actions it 

would not have questioned in members 

of a different sex.’’ Id. at 1737. The 

Court in Bostock found that ‘‘no 

ambiguity exists about how Title VII’s 

terms apply to the facts before [it]’’—i.e., 

allegations of discrimination in 

employment against several individuals 

based on sexual orientation and gender 

identity. Id. at 1749. Indeed, the Court 

stated that ‘‘it is impossible to 

discriminate against a person’’ because 

of their sexual orientation or gender 

identity ‘‘without discriminating against 

that individual based on sex.’’ Id. at 

1741. In the months immediately 

following the Supreme Court’s decision 

in Bostock, OCR took steps to clarify its 

position on Bostock’s application to 

Title IX. On August 31, 2020, OCR 

opened an investigation of a complaint 

of sexual orientation discrimination. 

OCR Case No. 04–20–1409, Shelby Cnty. 

Sch. Dist. (Aug. 31, 2020) (letter of 

notification), http://www.ed.gov/ocr/ 

letters/20200831-letter-ofnotification.pdf. In its notification letter, 

OCR noted that although there are 

differences between workplaces and 

schools, Bostock ‘‘guides OCR’s 

understanding that discriminating 

against a person based on their 

homosexuality or identification as 

transgender generally involves 

discrimination on the basis of their 

biological sex.’’ Id. at 2. OCR indicated 

that it would investigate allegations that 

the complainant had been subjected to 

‘‘ ‘homophobic bigot[ry]’ ’’ because she 

‘‘ ‘didn’t date guys’ ’’ and ‘‘ ‘likes girls’ ’’ 

and that she had been denied an 

opportunity because of her sexual 

orientation. Id. at 1. 

On the same day, OCR issued a 

revised Letter of Impending 

Enforcement Action in its investigation 

of the Connecticut Interscholastic 

Athletic Conference (CIAC) and six 

school districts, in which it denied that 

Bostock or its reasoning should alter its 

analysis of Title IX’s application to 

student participation on sex-separate 

athletics teams. OCR Case No. 01–19– 

4025, Conn. Interscholastic Athletic 

Conf. et al. (Aug. 31, 2020) (revised 

letter of impending enforcement action) 

(Rev. CIAC Letter), http://www.ed.gov/ 

ocr/docs/investigations/more/01194025- 

a2.pdf. The letter stated that when a 

recipient provides ‘‘separate teams for 

members of each sex’’ under 34 CFR 

106.41(b), ‘‘the recipient must separate 

those teams on the basis of biological 

sex’’ and not on the basis of gender 

identity. Id. at 36. The letter also 

departed from OCR’s typical practice 

concerning enforcement letters by 

stating that this letter ‘‘constitutes a 

formal statement of OCR’s interpretation 

of Title IX and its implementing 

regulations and should be relied upon, 

cited, and construed as such.’’ Id. at 49. 

In 2021, however, OCR closed the 

investigation after archiving and 

marking the letter ‘‘not for reliance,’’ 

citing its inconsistency with Executive 

Order 13988 (describing Bostock) and 

the fact that it was issued without 

having followed the appropriate 

procedures required for issuing 

guidance. 

In January 2021, the Department 

posted a memorandum signed by the 

Principal Deputy General Counsel in its 

Office of the General Counsel, which 

commented on Bostock’s application to 

Title IX. U.S. Dep’t of Educ., Office for 

Civil Rights, Memorandum from 

Principal Deputy General Counsel 

delegated the authority and duties of the 

General Counsel Reed D. Rubinstein to 

Kimberly M. Richey, Acting Assistant 

Secretary of the Office for Civil Rights 

re Bostock v. Clayton Cnty. (Jan. 8, 2021) 

(archived and marked not for reliance 

2021) (Rubinstein Memorandum), 

https://www2.ed.gov/about/offices/list/ 

ocr/correspondence/other/ogcmemorandum-01082021.pdf. The 

Rubinstein Memorandum stated that the 

Bostock Court’s ‘‘assumption that the 

ordinary public meaning of the term 

‘sex’ in Title VII means biological 

distinctions between male and female 

. . . is consistent with and further 

supports the Department’s long-standing 


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construction of the term ‘sex’ in Title IX 

to mean biological sex, male or female.’’ 

Rubinstein Memorandum at 2. The 

Rubinstein Memorandum also pointed 

to the preamble to the 2020 

amendments, specifically the statement 

that ‘‘ ‘[i]n promulgating regulations to 

implement Title IX, the Department 

expressly acknowledged physiological 

differences between the male and 

female sexes,’ ’’ to bolster its 

interpretation. Id. at 3. The Rubinstein 

Memorandum stated that ‘‘[c]onsistent 

with Bostock, harassment on the basis of 

a person’s transgender status or 

homosexuality may implicate that 

person’s biological sex and, thus, may at 

least in part constitute ‘conduct on the 

basis of sex,’ ’’ such that it ‘‘constitute[s] 

sexual harassment prohibited by Title 

IX.’’ Id. at 6. However, the Rubinstein 

Memorandum also argued that 

‘‘Bostock’s holding and reasoning, to the 

extent relevant, support the 

Department’s position that Title IX’s 

statutory and regulatory provisions 

permit, and in some cases require, 

biological sex, male or female, to be 

taken into account in an education 

program or activity.’’ Id. Thus, the 

Rubinstein Memorandum concluded, a 

recipient is required to separate athletic 

participants ‘‘solely based on their 

biological sex,’’ to restrict access to sexseparate facilities ‘‘based on biological 

sex,’’ and to rely on a student’s 

‘‘biological’’ sex in other circumstances 

in which sex separation is permitted by 

Title IX. Id. at 7, 9, 12–13. The 

Rubinstein Memorandum did not, 

however, explain how a school should 

determine a student’s ‘‘biological’’ sex. 

The Rubinstein Memorandum stated 

that the Department’s Office of the 

General Counsel was not persuaded to 

follow the recent appellate cases to the 

contrary. Id. at 9–11 (discussing Grimm 

v. Gloucester Cnty. Sch. Bd., 972 F.3d 

586 (4th Cir. 2020), as amended (Aug. 

28, 2020), cert. denied, 141 S. Ct. 2878 

(2021); Adams v. Sch. Bd. of St. Johns 

Cnty., 968 F.3d 1286 (11th Cir. 2020), 

vacated and superseded, 3 F.4th 1299 

(11th Cir. 2021), reh’g en banc pending, 

9 F.4th 1369 (11th Cir. 2021)). 

In 2021, OCR archived the Rubinstein 

Memorandum and marked it ‘‘not for 

reliance,’’ citing its inconsistency with 

Executive Order 13988 (describing 

Bostock) and its issuance without 

having followed the procedures 

required for issuing guidance. In June 

2021, after reviewing the text of Title IX 

in light of the Supreme Court’s decision 

in Bostock and other Federal courts’ 

decisions in Title IX cases, OCR 

published a Notice of Interpretation in 

the Federal Register discussing those 

cases and clarifying that Title IX’s 

prohibition on sex discrimination 

encompasses discrimination on the 

basis of sexual orientation and gender 

identity. 2021 Bostock Notice of 

Interpretation, 86 FR 32637. In the 

Notice of Interpretation, OCR discussed 

the text of Title IX and Federal courts’ 

interpretation of Title IX and concluded 

that the Supreme Court’s reasoning in 

Bostock applies to Title IX. Id. at 32638. 

OCR underscored the similarity of the 

relevant text of Title VII and Title IX 

and recognized the harm these forms of 

discrimination can cause to students, 

citing numerous court rulings 

recognizing harm in individual 

students’ cases. Id. at 32638–39. OCR 

made clear that this interpretation 

would inform OCR’s evaluation and 

investigation of complaints but that it 

would not dictate the outcome in any 

particular case or set of facts. Id. at 

32639. The Notice of Interpretation did 

not address how coverage of sexual 

orientation and gender identity 

discrimination affects obligations under 

the current Title IX regulations. 

B. Proposed Regulations 

Section 106.10 Scope 

Current regulations: None. 

Proposed regulations: The 

Department proposes adding this 

provision to the regulations to clarify 

the scope of Title IX’s prohibition on 

discrimination on the basis of sex. 

Reasons: The Department proposes 

adding a new section, § 106.10, titled 

Scope, to its Title IX regulations to 

clarify Title IX’s coverage of specific 

forms of sex discrimination, including 

some that are already addressed in the 

current regulations, such as 

discrimination based on pregnancy or 

related conditions, and others that are 

consistent with decisions of Federal 

courts and the Department’s 

identification of sex-based barriers to 

equal educational opportunity. This 

new section would state that 

discrimination on the basis of sex 

includes discrimination on the basis of 

sex stereotypes, sex characteristics, 

pregnancy or related conditions, sexual 

orientation, and gender identity. 

As summarized above, the 

Department has at times articulated a 

narrower interpretation of the scope of 

Title IX’s prohibition on sex 

discrimination. For example, the 

Department previously stated that Title 

IX does not fully encompass 

discrimination on the basis of sexual 

orientation or gender identity. See, e.g., 

2001 Revised Sexual Harassment 

Guidance at 3; 2010 Dear Colleague 

Letter on Harassment and Bullying at 8; 

Preamble to the 2020 Amendments, 85 

FR 30178–79. After the Supreme Court 

decided Bostock, however, Department 

officials acknowledged that Title IX 

covers sexual orientation and gender 

identity discrimination, albeit only so 

far as the discrimination impermissibly 

takes ‘‘biological’’ sex into account. See, 

e.g., Rubinstein Memorandum at 4. 

The Department now believes that its 

prior position (i.e., that Title IX’s 

prohibition on sex discrimination does 

not encompass discrimination based on 

sexual orientation and gender identity) 

is at odds with Title IX’s text and 

purpose and the reasoning of the 

Bostock Court and other courts to have 

considered the issue in recent years— 

both before and after Bostock. 

Title IX and its implementing 

regulations do not use the term ‘‘on the 

basis of sex’’ in a restrictive way. For 

example, consistent with judicial 

interpretations, OCR has long 

recognized that Title IX prohibits sexual 

harassment and discrimination based on 

sex stereotypes. The specific forms of 

sex discrimination that the Department 

proposes to add to the express 

prohibitions in § 106.10 do not depend 

on resolving the question of whether the 

term ‘‘sex’’ is limited to physiological or 

‘‘biological’’ characteristics. As noted, in 

certain documents in August 2020 and 

January 2021, the Department indicated 

that Title IX’s scope should be limited 

to discrimination rooted in ‘‘biological 

sex,’’ but as Bostock demonstrated with 

respect to Title VII, even accepting that 

definition of ‘‘sex’’ would not preclude 

Title IX’s coverage of these forms of 

discrimination. Given that, and 

following the approach reflected in the 

2020 regulations, the Department does 

not propose adding a definition of ‘‘sex’’ 

here because sex can encompass many 

traits and because it is not necessary for 

the regulations to define the term for all 

circumstances. See 85 FR 30178; cf. 

Schroer v. Billington, 424 F. Supp. 2d 

203, 212–13 (D.D.C. 2006) (construing 

the phrase ‘‘because of . . . sex’’ 

broadly is ‘‘a straightforward way to 

deal with the factual complexities that 

. . . stem from real variations . . . in 

the different components’’ of sexuality, 

including ‘‘chromosomal, gonadal, 

hormonal, and neurological’’ 

variations); Students & Parents for Priv. 

v. U.S. Dep’t of Educ., No. 16–CV–4945, 

2017 WL 6629520, at *3 (N.D. Ill. Dec. 

29, 2017) (‘‘As the Magistrate Judge 

correctly recognized, however, and as 

the Seventh Circuit has since 

conclusively held, federal protections 

against sex discrimination are 

substantially broader than based only on 

genitalia or chromosome.’’); Rentos v. 

Oce-Office Sys., No. 95-cv-7908, 1996 


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WL 737215, at *6 (S.D.N.Y. Dec. 24, 

1996) (recognizing the many different 

factors the medical community has 

determined to be pertinent in 

identifying someone’s gender). 

The Supreme Court in Bostock 

similarly declined to resolve the parties’ 

dispute concerning the definition of 

‘‘sex’’ under a civil rights law 

prohibiting discrimination on the basis 

of sex. The Court acknowledged the 

parties’ competing definitions of ‘‘sex’’: 

the employers’ definition of the term as 

‘‘status as either male or female [as] 

determined by reproductive biology,’’ 

and the employees’ definition as 

‘‘capturing more than anatomy and 

reaching at least some norms concerning 

gender identity and sexual orientation.’’ 

140 S. Ct. at 1739. The Court declined 

to resolve that dispute because ‘‘nothing 

in our approach . . . turns on the 

outcome of the parties’ debate’’ about 

definitions. Id. The Court explained 

that, even if one assumes ‘‘for 

argument’s sake’’ the employers’ 

narrower definition of sex as referring 

‘‘only to biological distinctions between 

male and female,’’ discrimination 

‘‘because of sex’’ occurs whenever an 

employer discriminates against a person 

for being gay or transgender: In such a 

circumstance, the Court explained, the 

employer ‘‘intentionally treats a person 

worse because of sex—such as by firing 

the person for actions or attributes it 

would tolerate in an individual of 

another sex.’’ Id. at 1739–40; see also id. 

at 1741 (‘‘If the employer intentionally 

relies in part on an individual 

employee’s sex when deciding to 

discharge the employee—put 

differently, if changing the employee’s 

sex would have yielded a different 

choice by the employer—a statutory 

violation has occurred.’’). And, the 

Court explained, this is so whether or 

not ‘‘other factors besides the plaintiff’s 

sex contributed to the decision’’ and 

regardless of whether ‘‘the employer 

treated women as a group the same 

when compared to men as a group.’’ Id. 

at 1741. Bostock thus makes clear that 

it is ‘‘impossible to discriminate against 

a person’’ on the basis of sexual 

orientation or gender identity without 

‘‘discriminating against that individual 

based on sex,’’ even assuming that sex 

refers only to certain ‘‘biological 

distinctions.’’ Id. at 1739, 1741. 

The Department does not intend that 

the specific categories of discrimination 

listed in proposed § 106.10 would be 

exhaustive, as evidenced by the use of 

the word ‘‘includes.’’ Title IX’s broad 

prohibition on discrimination ‘‘on the 

basis of sex’’ under a recipient’s 

education program or activity 

encompasses, at a minimum, 

discrimination against an individual 

because, for example, they are or are 

perceived to be male, female, or 

nonbinary; transgender or cisgender; 

intersex; currently or previously 

pregnant; lesbian, gay, bisexual, queer, 

heterosexual, or asexual; or genderconforming or gender-nonconforming. 

All such classifications depend, at least 

in part, on consideration of a person’s 

sex. The Department therefore proposes 

to clarify in this section that, consistent 

with Bostock and other Supreme Court 

precedent, Title IX bars all forms of sex 

discrimination, including 

discrimination based on sex stereotypes, 

sex characteristics, pregnancy or related 

conditions, sexual orientation, and 

gender identity. 

Sex characteristics. Proposed § 106.10 

would also specifically recognize that 

Title IX prohibits discrimination on the 

basis of sex characteristics. These 

include a person’s physiological sex 

characteristics and other inherently sexbased traits. See Grimm, 972 F.3d at 608 

(quoting Whitaker, 858 F.3d at 1051). 

The prohibition on discrimination based 

on sex characteristics would cover, 

among other things, discrimination 

based on intersex traits. The term 

‘‘intersex’’ generally describes people 

with variations in physical sex 

characteristics. These variations may 

involve anatomy, hormones, 

chromosomes, and other traits that 

differ from expectations generally 

associated with male and female bodies. 

Intersex traits are typically a result of 

medical conditions, including but not 

limited to congenital adrenal 

hyperplasia, Klinefelter syndrome, and 

androgen insensitivity syndrome. 

Consortium on the Management of 

Disorders of Sex Development, Clinical 

Guidelines for the Management of 

Disorders of Sex Development in 

Childhood at 2–7 (2006), https://

dsdguidelines.org/files/clinical.pdf. 

Discrimination based on intersex 

traits is rooted in perceived differences 

between an individual’s specific sex 

characteristics and those that are 

considered typical for their sex assigned 

at birth. As discussed above, 

discrimination based on anatomical or 

physiological sex characteristics (such 

as genitals, gonads, chromosomes, and 

hormone function) is inherently sexbased. Thus, intersex traits are 

‘‘inextricably bound up with’’ sex. Cf. 

Bostock, 140 S. Ct. at 1742; id. at 1746 

(discrimination against ‘‘persons with 

one sex identified at birth and another 

today’’ is sex discrimination). The 

Department therefore proposes to clarify 

that sex discrimination under Title IX 

includes discrimination on the basis of 

sex characteristics, including intersex 

traits. 

Sexual orientation. Proposed § 106.10 

would clarify that the regulations 

prohibit discrimination on the basis of 

sexual orientation. Although the 

Department has previously stated that 

Title IX does not prohibit 

discrimination based solely on sexual 

orientation, the Department has long 

maintained that Title IX prohibits 

discrimination and harassment based on 

sex stereotypes. See, e.g., 85 FR 30179; 

2010 Dear Colleague Letter on 

Harassment and Bullying at 8; 2001 

Revised Sexual Harassment Guidance at 

3. In June 2021, OCR published a notice 

clarifying that, in light of the Supreme 

Court’s decision in Bostock, OCR 

interprets Title IX’s prohibition on sex 

discrimination to encompass 

discrimination on the basis of sexual 

orientation. 2021 Bostock Notice of 

Interpretation, 86 FR 32637. The 

Supreme Court in Bostock provided 

examples to illustrate how sexual 

orientation discrimination is necessarily 

a form of sex discrimination. In one 

example, the Court stated: 

Consider, for example, an employer with 

two employees, both of whom are attracted 

to men. The two individuals are, to the 

employer’s mind, materially identical in all 

respects, except that one is a man and the 

other a woman. If the employer fires the male 

employee for no reason other than the fact he 

is attracted to men, the employer 

discriminates against him for traits or actions 

it tolerates in his female colleague. Put 

differently, the employer intentionally 

singles out an employee to fire based in part 

on the employee’s sex, and the affected 

employee’s sex is a but-for cause of his 

discharge. 

Bostock, 140 S. Ct. at 1741. As OCR 

explained in the 2021 Bostock Notice of 

Interpretation, it carefully reviewed the 

Bostock decision, the similarities in the 

text of Title VII and Title IX, the way 

other Federal courts have analyzed Title 

IX’s application to sexual orientation 

discrimination and the sex-based harms 

that sexual orientation discrimination 

causes and concluded that OCR’s 

interpretation of Title IX should be 

consistent with the Supreme Court’s 

reasoning in Bostock. Other Federal 

courts have likewise recognized that 

Title IX covers sexual orientation 

discrimination. See, e.g., Koenke v. 

Saint Joseph’s Univ., No. CV 19–4731, 

2021 WL 75778, at *2 (E.D. Pa. Jan. 8, 

2021); Doe v. Univ. of Scranton, No. 

3:19–CV–01486, 2020 WL 5993766, at 

*5 n.61 (M.D. Pa. Oct. 9, 2020); Videckis 

v. Pepperdine Univ., 150 F. Supp. 3d 

1151, 1159–60 (C.D. Cal. 2015). 

Gender identity. Proposed § 106.10 

would also clarify that Title IX prohibits 


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discrimination on the basis of an 

individual’s gender identity. The 

Department has previously described its 

jurisdiction over gender identity 

discrimination in guidance documents 

and in filings in Federal court. See, e.g., 

2016 Dear Colleague Letter on Title IX 

and Transgender Students; 2014 Q&A 

on Sexual Violence at 5; Brief for the 

United States as Amicus Curiae 

Supporting Plaintiff-Appellant, Grimm, 

822 F.3d 709 (No. 15–2056), https://

www.justice.gov/crt/file/788971/ 

download; Statement of Interest of the 

United States, Tooley v. Van Buren Pub. 

Schs., No. 2:14-cv-13466–AC–DRG (E.D. 

Mich. Feb. 24, 2015), https://

www.justice.gov/sites/default/files/crt/ 

legacy/2015/02/27/tooleysoi.pdf. 

Federal courts had likewise recognized 

that Title IX covers gender identity 

discrimination. See, e.g., Grimm, 972 

F.3d at 616–19; Whitaker, 858 F.3d at 

1049–50. However, the Department 

subsequently rescinded the 2016 Dear 

Colleague Letter on Title IX and 

Transgender Students and declined to 

assert in the 2020 amendments that 

Title IX prohibits discrimination on the 

basis of a person’s gender identity. See, 

e.g., 85 FR 30177–79. Then, following 

the Supreme Court’s decision in 

Bostock, the Department once again 

acknowledged that complaints of 

discrimination on the basis of 

transgender status ‘‘might fall within the 

scope of Title IX’s non-discrimination 

mandate because they allege sex 

discrimination.’’ Rubinstein Memo at 4 

(citing Bostock, 140 S. Ct. at 1741, 

1737). More recently OCR affirmed that 

discrimination on the basis of sex under 

Title IX should align with the Supreme 

Court’s reasoning in Bostock. Thus, in 

its 2021 Bostock Notice of 

Interpretation, OCR made clear that, 

consistent with Bostock, it interprets 

Title IX’s prohibition on sex 

discrimination to cover discrimination 

on the basis of gender identity. 86 FR 

32637 (citing Bostock’s holding that 

when an employer discriminates against 

a person for being transgender, ‘‘the 

employer necessarily discriminates 

against that person for ‘traits or actions 

it would not have questioned in 

members of a different sex’’). The 

proposed regulations are consistent with 

OCR’s 2021 Bostock Notice of 

Interpretation and the interpretation of 

Federal courts that have applied 

Bostock to Title IX. 

Sex stereotypes. Proposed § 106.10 

would clarify that discrimination based 

on sex stereotypes, i.e., fixed or 

generalized expectations regarding a 

person’s aptitudes, behavior, selfpresentation, or other attributes based 

on sex, is prohibited under Title IX. The 

proposed regulations would codify the 

long-recognized principle that Title IX 

and other sex discrimination laws 

prohibit harassment and other forms of 

discrimination based on a person’s 

conformity or nonconformity to 

stereotypical notions of masculinity and 

femininity. As the Supreme Court 

explained in Price Waterhouse v. 

Hopkins, the assumption that persons 

must act and dress in a particular way 

based on expectations related to a 

person’s sex is a form of discrimination 

on the basis of sex. See 490 U.S. at 235 

(plurality opinion) (‘‘[T]he man who 

. . . bore responsibility for explaining 

to Hopkins the reasons for the Policy 

Board’s decision to place her candidacy 

on hold [advised her that] in order to 

improve her chances for partnership 

. . . Hopkins should ‘walk more 

femininely, talk more femininely, dress 

more femininely, wear make-up, have 

her hair styled, and wear jewelry.’ ’’); 

accord id. at 272 (O’Connor, J., 

concurring in the judgment). ‘‘[W]e are 

beyond the day,’’ wrote the Court, 

‘‘when an employer could evaluate 

employees by assuming or insisting that 

they matched the stereotype associated 

with their group, for ‘[i]n forbidding 

employers to discriminate against 

individuals because of their sex, 

Congress intended to strike at the entire 

spectrum of disparate treatment of men 

and women resulting from sex 

stereotypes.’ ’’ Id. at 251 (plurality 

opinion) (internal citations omitted); see 

also Bostock, 140 S. Ct. at 1742–43 

(‘‘[A]n employer who fires both Hannah 

and Bob for failing to fulfill traditional 

sex stereotypes doubles rather than 

eliminates Title VII liability . . . .’’). 

Many Federal courts have applied this 

principle and recognized the ways that 

sex stereotyping can deprive students of 

equal access to education in violation of 

Title IX. See, e.g., Whitaker, 858 F.3d at 

1049 (‘‘A policy that . . . punishes [an] 

individual for his or her gender nonconformance . . . violates Title IX.’’); 

Pederson v. La. State Univ., 213 F.3d 

858, 880 (5th Cir. 2000) (recognizing 

that a university violated Title IX when 

its funding decisions in athletics were 

based on ‘‘paternalism and stereotypical 

assumptions about [women’s] interests 

and abilities,’’ and a ‘‘remarkably 

outdated view of women and 

athletics’’); Videckis, 150 F. Supp. 3d at 

1160 (‘‘It is undisputed that Title IX 

forbids discrimination on the basis of 

gender stereotypes.’’); Pratt v. Indian 

River Cent. Sch. Dist., 803 F. Supp. 2d 

135, 152 (N.D.N.Y. 2011) (holding that 

allegations of peer harassment based on 

nonconformity or perceived 

nonconformity with sex stereotypes 

state a claim under Title IX); Seiwert v. 

Spencer-Owen Cmty. Sch. Corp., 497 F. 

Supp. 2d 942, 953 (S.D. Ind. 2007) 

(holding that harassment for ‘‘acting in 

a manner that did not adhere to the 

traditional male stereotypes’’ states a 

Title IX claim); Riccio v. New Haven Bd. 

of Educ., 467 F. Supp. 2d 219, 226 (D. 

Conn. 2006) (‘‘The language set forth in 

the [2001] OCR Guidance and the 

holding in Oncale clearly support the 

conclusion that a female student, 

subjected to pejorative, female 

homosexual names by other female 

students, can bring a claim of sexual 

harassment under Title IX.’’); Theno v. 

Tonganoxie Unified Sch. Dist. No. 464, 

377 F. Supp. 2d 952, 965, 973 (D. 

Kansas 2005) (‘‘[A] rational trier of fact 

could conclude that plaintiff was 

harassed because his harassers 

perceived that he did not act as they 

believed a man (or perhaps more 

accurately a teenage boy) should act’’ 

when he was harassed for failing ‘‘to 

satisfy his peers’ stereotyped 

expectations for his gender’’); 

Montgomery v. Indep. Sch. Dist. No. 

709, 109 F. Supp. 2d 1081, 1092 (D. 

Minn. 2000) (stating that a reasonable 

factfinder ‘‘could infer that [plaintiff] 

suffered harassment due to his failure to 

meet masculine stereotypes’’); cf. United 

States v. Virginia, 518 U.S. 515, 533 

(1996) (stating that in making 

classifications based on sex, the State 

‘‘must not rely on overbroad 

generalizations about the different 

talents, capacities, or preferences of 

males and females’’). 

Title IX’s prohibition on 

discrimination on the basis of sex 

stereotypes is also embedded in the 

current regulations and OCR’s historical 

guidance documents. See, e.g., 34 CFR 

106.34(b)(4) (prohibiting single-sex 

classes that rely on ‘‘overly broad 

generalizations about the different 

talents, capacities, or preferences of 

either sex’’); 34 CFR 106.45(b)(1)(iii) 

(‘‘Any materials used to train Title IX 

Coordinators, investigators, 

decisionmakers, and any person who 

facilitates an informal resolution 

process, must not rely on sex 

stereotypes and must promote impartial 

investigations and adjudications of 

formal complaints of sexual 

harassment.’’); 2001 Revised Sexual 

Harassment Guidance at 3 (‘‘[G]enderbased harassment, which may include 

acts of verbal, nonverbal, or physical 

aggression, intimidation, or hostility 

based on sex or sex-stereotyping, but not 

involving conduct of a sexual nature, is 

also a form of sex discrimination to 

which a school must respond . . . .’’ 


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12 In 1974, HEW proposed regulations that 

contained earlier, materially identical versions of 

these general, presumptive prohibitions on sexbased separation and differential treatment. See 39 

FR 22228, 22235–36 (1974) (proposing 45 CFR 

86.31(b)(4) & (8), 86.34(a), 86.38(a)). President Ford 

approved those regulations and submitted them to 

the Speaker of the House and the President of the 

Senate for review pursuant to Section 431(d)(1) of 

the GEPA, under which Congress had 45 days in 

which to assess whether the rule was ‘‘inconsistent 

with the Act from which it derives its authority, 

and disapprove such final regulation.’’ Public Law 

93–380, 88 Stat. 567, § 431(d)(1), previously 

codified at 20 U.S.C. 1232(d)(1). Congress did not 

take any steps to disapprove the regulations because 

of these provisions, and the final regulations, which 

included the same provisions, were published on 

June 4, 1975, and went into effect on July 21, 1975. 

See 40 FR 24128, 24141–42 (1975). 

(footnote omitted)). The proposed 

addition of this new section would be 

consistent with these provisions and 

increase clarity of Title IX’s coverage of 

discrimination based on sex stereotypes. 

Pregnancy or related conditions. 

Proposed § 106.10 would also clarify 

that the regulations prohibit 

discrimination based on pregnancy or 

related conditions, consistent with the 

Department’s longstanding 

interpretation of Title IX and as 

explained in more detail in the 

discussion of proposed amendments to 

§§ 106.2, 106.21, 106.40, 106.51, and 

106.57 in Pregnancy and Parental Status 

(Section III). 

In sum, the Department proposes to 

clarify Title IX’s scope in proposed 

§ 106.10 to more closely align with Title 

IX’s text, purpose, and principles 

articulated in Federal case law and to 

more effectively protect people from all 

forms of sex discrimination under 

federally funded education programs 

and activities. 

Section 106.31(a) Education Programs 

or Activities—General 

Current regulations: Section 106.31(a) 

describes generally the conduct 

prohibited by Title IX and notes the 

limited application of this subpart to 

admissions to certain classes of 

institutions. 

Proposed regulations: The 

Department proposes adding the word 

‘‘otherwise’’ in redesignated paragraph 

(a)(1) and renumbering the paragraph 

accordingly. The Department also 

proposes adding a new paragraph (a)(2) 

to clarify that in the limited 

circumstances in which Title IX or the 

regulations permit different treatment or 

separation on the basis of sex, a 

recipient must not carry out such 

different treatment or separation in a 

manner that discriminates on the basis 

of sex by subjecting a person to more 

than de minimis harm, unless otherwise 

permitted by Title IX or the regulations. 

Proposed § 106.31(a)(2) would clarify 

that adopting a policy or engaging in a 

practice that prevents a person from 

participating in an education program or 

activity consistent with their gender 

identity subjects a person to more than 

de minimis harm on the basis of sex. 

Reasons: Adding the word ‘‘otherwise’’ 

before ‘‘be subjected to discrimination 

under’’ would clarify that denial of 

benefits based on sex and exclusion 

from participation based on sex are 

themselves forms of prohibited sex 

discrimination. The statute and current 

regulations generally use the term 

‘‘discrimination’’ to describe any form 

of prohibited conduct under Title IX or 

the regulations—including when a 

person is, on the basis of sex, excluded 

from participation in or denied the 

benefits of an education program or 

activity receiving Federal financial 

assistance. See, e.g., 20 U.S.C. 1681(a) 

(titled ‘‘Prohibition against 

discrimination’’); 34 CFR part 106 (titled 

‘‘Nondiscrimination on the Basis of Sex 

in Education Programs or Activities 

Receiving Federal Financial 

Assistance’’); 34 CFR 106.1 (Title IX is 

‘‘designed to eliminate (with certain 

exceptions) discrimination on the basis 

of sex’’). Regulations implementing 

other civil rights laws with similar 

statutory language also use the term 

‘‘otherwise’’ in this context to make 

clear that ‘‘discrimination’’ is an 

umbrella term describing all conduct 

prohibited by the statute. See, e.g., 34 

CFR 100.1, 100.3(a) (Title VI); 34 CFR 

104.4(a), 104.4(b)(5), 104.21, 104.43(a), 

104.44(d) (Section 504). 

Proposed § 106.31(a)(2) would clarify 

that in the discrete circumstances when 

Title IX or the regulations permits a 

recipient to separate or treat persons 

differently on the basis of sex, a 

recipient must not do so in a manner 

that discriminates on the basis of sex by 

subjecting a person to more than de 

minimis harm unless otherwise 

permitted by Title IX or the regulations. 

When a recipient separates girls and 

boys, or women and men, or applies 

different rules to them, it treats such 

persons ‘‘on the basis of [sex].’’ This 

understanding of sex-based different 

treatment does not depend on any 

particular definition of the term ‘‘sex.’’ 

A recipient’s action is based on sex, for 

example, if it relies upon ‘‘biological 

distinctions between male and female.’’ 

Cf. Bostock, 140 S. Ct. at 1739. 

Since 1975, the Department’s 

regulations have specified that such 

separate or differential treatment on the 

basis of sex is presumptively a form of 

prohibited sex discrimination. See, e.g., 

34 CFR 106.31(b)(4), (7) (‘‘Except as 

provided in this subpart, in providing 

any aid, benefit, or service to a student, 

a recipient shall not, on the basis of sex 

. . . [s]ubject any person to separate or 

different rules of behavior, sanctions, or 

other treatment; [or] [o]therwise limit 

any person in the enjoyment of any 

right, privilege, advantage, or 

opportunity.’’); see also id. at 106.34(a) 

(‘‘Except as provided for in this section 

or otherwise in this part, a recipient 

shall not provide or otherwise carry out 

any of its education programs or 

activities separately on the basis of sex 

. . . .’’); id. at 106.41(a) (‘‘No person 

shall, on the basis of sex, be excluded 

from participation in, be denied the 

benefits of, be treated differently from 

another person or otherwise be 

discriminated against in any 

interscholastic, intercollegiate, club or 

intramural athletics offered by a 

recipient, and no recipient shall provide 

any such athletics separately on such 

basis.’’). These regulations, which were 

the subject of a congressional hearing 

before they took effect and which 

Congress did not take steps to 

disapprove,12 reflect the understanding 

that subjecting students to differential 

treatment on the basis of their sex in the 

education context is presumptively 

harmful, including because such 

differential treatment is often based 

upon, and thus perpetuates, ‘‘overbroad 

generalizations about the different 

talents, capacities, or preferences’’ of the 

sexes. Virginia, 518 U.S. at 533. 

Nevertheless, the Department has 

never treated all distinctions based on 

sex as impermissible discrimination. 

The Department’s regulations have 

recognized limited contexts in which 

recipients are permitted to employ sexspecific rules or to separate students on 

the basis of sex because the Department 

has determined that in those contexts 

such treatment does not generally 

impose harm on students. See, e.g., 34 

CFR 106.33 (toilet, locker room, and 

shower facilities); id. at 106.34(a)(3) 

(human sexuality classes). 

Although the Department has the 

authority to interpret the statute and 

promulgate regulations, its regulations 

must not contradict the express 

provisions of the statute. Rather, those 

regulatory provisions are premised on 

the understanding that in certain 

situations, the fact that a recipient 

employs a sex-based distinction or 

separation does not, as such, amount to 

‘‘discrimination’’ that Title IX forbids in 

the first place. In particular, to the 

extent separation or different treatment 

based on sex imposes no harm or only 

de minimis harm, it will not amount to 

discrimination on the basis of sex under 

Title IX. Cf. Oncale, 523 U.S. at 81 (Title 

VII does not reach non-harmful 

‘‘differences in the ways men and 


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13Research suggests that school policies that 

permit students to participate consistent with their 

gender identity may be associated with better 

mental health. See, e.g., Stephen T. Russell et al., 

Chosen Name Use Is Linked to Reduced Depressive 

Symptoms, Suicidal Ideation, and Suicidal 

Behavior among Transgender Youth, 63 J. 

Adolescent Health 503, 505 (2018), https://

pubmed.ncbi.nlm.nih.gov/29609917 (describing 

gender-affirming policies that ‘‘likely enhance 

safety and reduce physical and mental health 

disparities for transgender populations’’). 

women routinely interact with’’ each 

other.) 

There may be, however, 

circumstances in which even generally 

permissible sex-based treatment would 

cause more than de minimis harm to 

protected individuals. Proposed 

§ 106.31(a)(2) would clarify that in these 

circumstances, the harmful treatment 

would be discriminatory and therefore 

prohibited by Title IX, unless otherwise 

permitted by the statute or regulations. 

See Peltier v. Charter Day Sch., Inc., 

Nos. 20–1001, 20–1023, 2022 WL 

2128579, at *16 (4th Cir. June 14, 2022) 

(en banc) (‘‘for the plaintiffs to prevail 

under Title IX, they must show that . . . 

the challenged action caused them 

harm, which may include ‘emotional 

and dignitary harm’ ’’ (internal citation 

omitted)); cf. Burlington N. & Santa Fe 

Ry. Co. v. White, 548 U.S. 53, 59–60 

(2006) (‘‘No one doubts that the term 

‘discriminate against’ refers to 

distinctions or differences in treatment 

that injure protected individuals.’’); see 

also Threat v. City of Cleveland, 6 F.4th 

672, 678 (6th Cir. 2021) (‘‘To 

‘discriminate’ reasonably sweeps in 

some form of an adversity and a 

materiality threshold.’’). 

Such harm may result, for example, if 

the sex separation or differential 

treatment is based upon, and thus 

perpetuates, ‘‘overbroad generalizations 

about the different talents, capacities, or 

preferences’’ of the sexes, Virginia, 518 

U.S. at 533, or upon other harmful sex 

stereotypes. See 34 CFR 106.34(b)(4)(i) 

(requiring recipients to ensure that 

single-sex classes and activities 

permitted under the regulations do not 

rely upon ‘‘overly broad generalizations 

about the different talents, capacities, or 

preferences of either sex’’). 

In addition, prohibited harm may 

result when a recipient applies a 

generally permissible sex-based policy, 

or makes an otherwise permissible sexbased distinction, in a manner that 

discriminates against one or more 

protected individuals by subjecting 

them to more than de minimis harm on 

the basis of sex. In these situations, even 

when a recipient’s sex-specific 

treatment or separation does not 

materially harm most students to whom 

it applies, and therefore may generally 

be maintained by a recipient, Title IX 

prohibits its application to those 

individual students who would suffer 

more than de minimis harm on the basis 

of sex. See, e.g., Grimm, 972 F.3d at 

617–18 (applying Title IX’s statutory 

prohibition against discrimination on 

the basis of sex when sex-based 

separation caused harm). This is 

because the statute specifies that ‘‘no 

person’’ shall be subjected to 

discrimination on the basis of sex in a 

federally funded education program or 

activity unless otherwise permitted by 

the statute. In Bostock, the Court 

explained that Title VII’s prohibition on 

discrimination against an ‘‘individual’’ 

means that the ‘‘focus should be on 

individuals, not groups.’’ 140 S. Ct. at 

1740. Use of the term ‘‘person’’ in Title 

IX compels the same conclusion. See 

Jackson, 544 U.S. at 180 (‘‘Congress 

enacted Title IX not only to prevent the 

use of federal dollars to support 

discriminatory practices, but also ‘to 

provide individual citizens effective 

protection against those practices.’ ’’ 

(quoting Cannon, 441 U.S. at 704 

(stating that, in enacting Title IX, 

Congress ‘‘wanted to provide individual 

citizens effective protection against 

those [discriminatory] practices’’))). 

In particular, courts have recognized 

that a recipient subjects students to such 

harm when it bars them from accessing 

otherwise permissible sex-separate 

facilities or activities consistent with 

their gender identity. See, e.g., 

Whitaker, 858 F.3d at 1045–46 

(discussing district court’s findings, 

based on expert testimony, that denying 

transgender student’s access to a sexseparate education program or activity 

consistent with his gender identity 

imposed significant harm on his mental 

health and overall well-being); Grimm, 

972 F.3d at 617–18 (holding that 

evidence that a transgender boy suffered 

physical, emotional, and dignitary 

harms as a result of being denied access 

to a sex-separate program or activity 

consistent with his gender identity was 

sufficient to constitute harm under Title 

IX); B.P.J. v. W. Va. State Bd. of Educ., 

550 F. Supp. 3d 347, 356 (S.D. W. Va. 

2021) (finding a likelihood of success on 

middle school student’s Title IX claim 

challenging a State law excluding her 

from a sex-separate education program 

or activity because she alleged that the 

law ‘‘both stigmatizes and isolates’’ her); 

Bd. of Educ. of the Highland Loc. Sch. 

Dist., 208 F. Supp. 3d at 870–71 

(describing stigma and isolation caused 

by district’s exclusion of transgender 

girl from a sex-separate education 

program or activity consistent with her 

gender identity).13

For these reasons, proposed 

§ 106.31(a)(2) would make clear that 

preventing any person from 

participating in an education program or 

activity consistent with their gender 

identity would subject them to more 

than de minimis harm on the basis of 

sex and therefore be prohibited, unless 

otherwise permitted by Title IX or the 

regulations. 

Some members of the public have 

urged the Department that Title IX does 

not prohibit harms that result when a 

student is separated or treated 

differently based on sex in a way that 

is inconsistent with their gender 

identity. These members of the public 

have argued that preventing transgender 

students from accessing sex-separate 

spaces and programs consistent with 

their gender identity will serve to 

protect other students from harms to 

their safety, privacy, and comfort. The 

Department recognizes schools’ 

legitimate interest in protecting the 

safety and privacy of all students. Yet 

schools can and do protect those 

interests without also causing harm to 

other students by excluding them from 

sex-separate spaces and programs. See, 

e.g., Rehearing Amicus Brief of School 

Administrators from Twenty-Nine 

States and the District of Columbia in 

Support of Plaintiff-Appellee Gavin 

Grimm, Grimm, 972 F.3d 586 (No. 19– 

1952), 2019 WL 6341095. Indeed, 

Federal courts have rejected claims that 

treating students consistent with their 

gender identity harms cisgender 

students in violation of Title IX, and 

have specifically addressed and 

dismissed unsubstantiated concerns 

about privacy and safety associated with 

treating people consistent with their 

gender identity. See, e.g., Grimm, 972 

F.3d at 626 (Wynn, J., concurring) 

(describing and debunking ‘‘transgender 

predator’’ myth); Whitaker, 858 F.3d at 

1052 (holding that transgender student’s 

presence provides no more of a risk to 

other students’ privacy rights than does 

the presence of any other student in a 

sex-separate space); Doe v. Boyertown 

Area School District, 897 F.3d 518, 521 

(3d Cir. 2018) (same); Parents for Priv. 

v. Barr, 949 F.3d 1210, 1228–29 (9th 

Cir.), cert. denied, 141 S. Ct. 894 (2020) 

(holding that ‘‘[t]he use of facilities for 

their intended purpose, without more, 

does not constitute an act of harassment 

simply because a person is 

transgender’’); Cruzan v. Special Sch. 

Dist. # 1, 294 F.3d 981, 984 (8th Cir. 

2002) (per curiam) (holding that 

transgender woman’s mere presence in 

a sex-separate space did not constitute 

actionable sexual harassment of her 

female co-workers). The Supreme Court 


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has also rejected the notion that the 

preferences or discomfort of some can 

justify otherwise unconstitutional 

discrimination against others. See City 

of Cleburne v. Cleburne Living Ctr., 473 

U.S. 432, 450 (1985). 

Proposed § 106.31(a)(2) would also 

recognize that, despite Title IX’s general 

prohibition on sex discrimination 

against an individual, there are 

circumscribed situations in which Title 

IX or the regulations permit a recipient 

to separate students on the basis of sex, 

even where doing so may cause some 

students more than de minimis harm. 

For example, 20 U.S.C. 1681 specifically 

exempts certain sex-specific practices of 

certain designated entities from 

coverage by Title IX’s 

antidiscrimination mandate. See, e.g., 

20 U.S.C. 1681(a)(5) (stating that 20 

U.S.C. 1681 shall not apply to the 

admissions practices of traditionally 

single sex public institutions of 

undergraduate higher education); 20 

U.S.C. 1681(a)(6) (stating that 20 U.S.C. 

1681 shall not apply to the membership 

practices of social fraternities or 

sororities or certain voluntary youth 

organizations). Congress also enacted a 

specific, separate provision of Title IX 

with respect to living facilities, which 

provides that ‘‘[n]otwithstanding 

anything to the contrary contained in 

[Title IX],’’ including Title IX’s general 

prohibition on sex discrimination by 

recipients of federal funds in 20 U.S.C. 

1681, nothing in Title IX ‘‘shall be 

construed to prohibit any educational 

institution receiving funds under this 

Act, from maintaining separate living 

facilities for the different sexes.’’ 20 

U.S.C. 1686. Of Title IX’s voluminous 

legislative history, the debate over 20 

U.S.C. 1686 fills only a few pages, all of 

which focus on the narrow question of 

whether Title IX should be understood 

to mandate coeducational living in all 

instances in light of the then-growing 

prevalence of coeducational 

dormitories. Rep. Standish Thompson of 

Georgia introduced an amendment that 

‘‘simply would state that nothing 

contained herein shall preclude any 

educational institution from 

maintaining separate living facilities 

because of sex.’’ 117 Cong. Rec. 39260 

(1971) (statement of Rep. Standish 

Thompson). Rep. Thompson further 

stated that ‘‘[a]ll this amendment does is 

to allow for different living 

accommodations for the sexes,’’ and 

urged his colleagues to support it—as 

they did, without recorded opposition. 

Id. at 39263. 

The Department’s current view is thus 

that regardless of whether some 

students might experience more than de 

minimis harm if excluded from a 

particular sex-separate living facility on 

the basis of sex, Congress has 

nonetheless permitted that exclusion. 

Congress’s choice to specify limited 

circumstances where harm resulting 

from sex separation is permitted 

illustrates that, outside of those 

contexts, Title IX’s general prohibition 

on sex discrimination prohibits such 

harm. 

Moreover, 20 U.S.C. 1686 itself affects 

only one aspect of Title IX’s 

nondiscrimination mandate, even 

within the context of ‘‘living facilities.’’ 

Schools may maintain ‘‘separate living 

facilities for the different sexes.’’ 20 

U.S.C. 1686. The Department’s 

regulations, however, have long 

provided that housing offered for 

students of one sex must ‘‘as a whole’’ 

be ‘‘[c]omparable in quality and cost’’ to 

the housing offered to students of the 

other sex. 34 CFR 106.32(b)(2)(ii). The 

Supreme Court’s observation that Title 

IX’s protection against discrimination 

must be construed broadly reinforces 

that view. N. Haven Bd. of Educ., 456 

U.S. at 521 (‘‘[I]f we are to give Title IX 

the scope that its origins dictate, we 

must accord it a sweep as broad as its 

language.’’ (citations and internal 

alterations omitted)). 

The Department also recognizes that 

exclusion from a particular male or 

female athletics team may cause some 

students more than de minimis harm, 

and yet that possibility is allowed under 

current § 106.41(b). The Department’s 

authority to permit such different 

treatment in the context of athletics is 

described in the discussion of § 106.41. 

In addition, the regulations also 

specify circumstances in which a 

recipient may not afford students of one 

sex preferential benefits or treatment 

that it denies to students of the other 

sex—another form of prohibited sex 

discrimination. See, e.g., 34 CFR 106.33 

(providing that a recipient ‘‘may provide 

separate toilet, locker room, and shower 

facilities on the basis of sex, but such 

facilities provided for students of one 

sex shall be comparable to such 

facilities provided for students of the 

other sex’’); id. at 106.34(b) (providing 

that nonvocational coeducational 

elementary or secondary schools may 

provide nonvocational single-sex classes 

or extracurricular activities if doing so 

is ‘‘substantially related to achieving’’ 

an ‘‘important’’ objective, but only if, 

inter alia, ‘‘[t]he recipient provides to all 

other students, including students of the 

excluded sex, a substantially equal 

coeducational class or extracurricular 

activity in the same subject or activity’’). 

* * * * * 

The Department has previously 

articulated inconsistent interpretations 

with respect to how a recipient must 

treat a student’s gender identity when 

the recipient is otherwise permitted to 

separate or treat students differently on 

the basis of sex. Between 2013 and 

2016, the Department investigated and 

resolved complaints to address 

noncompliance with Title IX regarding 

schools’ denial of transgender students’ 

access to education programs or 

activities consistent with their gender 

identity and issued policy guidance 

explaining how Title IX bars gender 

identity discrimination. See, e.g., 

Arcadia Resolution Letter and 

Agreement; 2016 Dear Colleague Letter 

on Title IX and Transgender Students. 

In 2017, however, the Department 

withdrew the 2016 Dear Colleague 

Letter on Title IX and Transgender 

Students to ‘‘further and more 

completely consider the legal issues 

involved.’’ See 2017 Dear Colleague 

Letter on Transgender Students. In 

2020, in a letter subsequently archived 

and marked not for reliance, the 

Department asserted in the context of an 

enforcement case that permitting 

transgender girls to participate on a 

girls’ athletics team denied cisgender 

girls athletic benefits and opportunities 

in violation of Title IX. See Revised 

CIAC Letter at 3–4. Then, in January 

2021, in a memorandum subsequently 

archived and marked not for reliance, 

the Department interpreted its Title IX 

regulations to require that a recipient 

rely on a student’s ‘‘biological’’ sex in 

circumstances in which sex separation 

or sex-specific treatment is permitted 

under Title IX and these regulations, 

based on the argument that this was 

‘‘the ordinary public meaning of the 

term ‘sex’ at the time of Title IX’s 

enactment,’’ that the original 

implementing regulations included 

provisions acknowledging 

‘‘physiological differences between the 

male and female sexes,’’ and that this 

has been ‘‘OCR’s longstanding 

construction’’ of the term. Rubinstein 

Memorandum at 2, 3 (quoting 85 FR 

30178), 7, 9, 12–13. The Department 

also stated that refusing to treat a 

student consistent with their gender 

identity generally would not violate 

Title IX. See Rubinstein Memorandum 

at 4; see also U.S. Dep’t of Educ., Office 

for Civil Rights, Letter from Assistant 

Secretary Kenneth L. Marcus to 

Representative Mark E. Green (Mar. 9, 

2020), http://www.ed.gov/ocr/ 

correspondence/congress/20200309- 

title-ix-and-use-of-preferredpronouns.pdf. The Rubinstein 

Memorandum explained that the 


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Department was not persuaded by the 

decisions of Federal appellate courts to 

the contrary. Rubinstein Memorandum 

at 10–11. 

In the June 2021 Title IX Public 

Hearing, in listening sessions, and 

during meetings held under Executive 

Order 12866 in 2022, stakeholders urged 

the Department to clarify that Title IX’s 

prohibition on sex discrimination 

includes discrimination based on 

gender identity following the Supreme 

Court’s ruling in Bostock and that it also 

prohibits recipients from treating 

transgender students based upon their 

actual or perceived physiological 

characteristics rather than their gender 

identity. Stakeholders specifically 

expressed concern about how regulatory 

provisions that permit sex separation 

and sex-specific norms have been 

implemented in ways that harm 

transgender students and explained how 

barriers to participating in school 

consistent with those students’ gender 

identity cause a range of serious 

dignitary, academic, social, 

psychological, and physical harms. 

The Department has reevaluated its 

approach to Title IX’s application to 

discrimination based on gender identity 

after reviewing and considering the 

scope of Title IX’s nondiscrimination 

mandate, interpretations of Federal 

courts, public feedback, and the 

standards OCR has long applied to 

evaluate compliance with current 

§ 106.41. The Department’s further 

review confirms that the interpretations 

articulated in statements such as the 

Rubinstein Memorandum and Revised 

CIAC Letter are inconsistent with the 

text and purpose of the Title IX statute 

and regulations. 

Contrary to assertions made in 2020 

and January 2021, the Department does 

not have a ‘‘long-standing construction’’ 

of the term ‘‘sex’’ in Title IX to mean 

‘‘biological sex.’’ The text of the statute 

and current regulations do not resolve 

this issue; neither the statute nor the 

regulations define ‘‘sex,’’ purport to 

restrict the scope of sex discrimination 

to biological considerations, or even use 

the term ‘‘biological.’’ The Department 

does not construe the term ‘‘sex’’ to 

necessarily be limited to a single 

component of an individual’s anatomy 

or physiology. Further, the Department 

need not define ‘‘sex,’’ as explained in 

more detail above in the discussion of 

proposed § 106.10. Just as the Supreme 

Court in Bostock declined to engage in 

the parties’ debate over dictionary 

definitions, the Department also focuses 

in its proposed regulations on ‘‘what 

[the law] says about’’ sex in context. 140 

S. Ct. at 1739. As the regulations have 

stated since they were first issued in 

1975, the purpose of the Department’s 

Title IX regulations is to effectuate the 

statute, ‘‘which is designed to eliminate 

(with certain exceptions) discrimination 

on the basis of sex in any education 

program or activity receiving Federal 

financial assistance.’’ 34 CFR 106.1. In 

any event, and as Bostock demonstrates, 

treating individuals in a particular way 

on the basis of ‘‘biological distinctions 

between male and female,’’ 140 S. Ct. at 

1739, is action taken ‘‘on the basis of’’ 

sex, however else the term ‘‘sex’’ might 

also be defined. And, as discussed 

above, if such sex-based action results 

in more than de minimis harm to an 

individual, it constitutes prohibited sex 

discrimination unless permitted by the 

statute or the regulations. When a 

person is denied access to education 

programs or activities consistent with 

their gender identity, it causes them 

more than de minimis harm on the basis 

of sex. Therefore, such treatment 

generally violates Title IX’s prohibition 

on discrimination to the extent it causes 

more than de minimis harm and unless 

otherwise permitted by Title IX or the 

regulations, and the Department’s 

regulations should effectuate that 

prohibition. 20 U.S.C. 1682. 

Section 106.41 Athletics 

Current regulations: Although 

paragraph (a) of current § 106.41 

establishes a baseline rule that ‘‘[n]o 

person shall, on the basis of sex, be . . . 

treated differently from another person 

. . . in any interscholastic, 

intercollegiate, club or intramural 

athletics offered by a recipient, and no 

recipient shall provide any such 

athletics separately on such basis,’’ 

paragraph (b) authorizes a recipient to 

offer male and female athletic teams 

when selection for such teams is based 

upon competitive skill or the activity 

involved is a contact sport. However, 

when a recipient operates or sponsors a 

team in a particular sport for members 

of one sex but operates or sponsors no 

such team for members of the excluded 

sex, and athletics opportunities for 

members of that sex have previously 

been limited, members of the excluded 

sex must be allowed to try out for the 

team offered unless the sport involved 

is a contact sport. Paragraph (b) also 

lists examples of contact sports. 

Paragraph (c), in turn, establishes that 

even where a recipient does offer male 

and female teams, ‘‘[a] recipient . . . 

shall provide equal athletic 

opportunity’’ for the sexes. 

Proposed regulations: None. The 

Department does not propose any 

particular changes to § 106.41 at this 

time. The Department instead plans to 

issue a separate notice of proposed 

rulemaking to address whether and how 

the Department should amend § 106.41 

in the context of sex-separate athletics, 

pursuant to the special authority 

Congress has conferred upon the 

Secretary to promulgate reasonable 

regulations with respect to the unique 

circumstances of particular sports. 

Specifically, the Department plans to 

address by separate notice of proposed 

rulemaking the question of what 

criteria, if any, recipients should be 

permitted to use to establish students’ 

eligibility to participate on a particular 

male or female athletics team. The scope 

of public comment on this notice of 

proposed rulemaking therefore does not 

include comments on that issue; those 

comments should be made in response 

to that separate rulemaking. 

Reasons: Athletics has long been 

recognized by Federal courts, Congress, 

and the Department as an integral part 

of a recipient’s education program or 

activity subject to Federal civil rights 

requirements. See, e.g., U.S. Dep’t of 

Health, Educ., and Welfare, Final Rule: 

Nondiscrimination on the Basis of Sex 

In Education Programs and Activities 

Receiving or Benefiting from Federal 

Financial Assistance, 40 FR 24128, 

24134 (June 4, 1975) (citing cases); U.S. 

Dep’t of Health, Educ., and Welfare, 

Office for Civil Rights, A Policy 

Interpretation: Title IX and 

Intercollegiate Athletics, 44 FR 71413 

(Dec. 11, 1979), https://

www.govinfo.gov/content/pkg/FR-1979- 

12-11/pdf/FR-1979-12-11.pdf; N. Haven 

Bd. of Educ., 456 U.S. at 516, 531–32 

(noting that the Title IX regulations 

cover athletics and describing 

congressional review of those 

regulations). School-based athletic 

programs have been associated with 

many physical, emotional, academic, 

and interpersonal benefits for students, 

and athletics participation has the 

potential to help students develop skills 

that benefit them in school and 

throughout life, including teamwork, 

discipline, resilience, leadership, 

confidence, social skills, and physical 

fitness. See, e.g., Scott L. Zuckerman et 

al., The Behavioral, Psychological, and 

Social Impacts of Team Sports: A 

Systematic Review and Meta-analysis, 

49 Physician & Sports Med. 246 (2021); 

Ryan D. Burns et al., Sports 

Participation Correlates With Academic 

Achievement: Results From a Large 

Adolescent Sample Within the 2017 

U.S. National Youth Risk Behavior 

Survey, 127 Perceptual & Motor Skills 

448 (2020); Parker v. Franklin Cnty. 

Cmty. Sch. Corp., 667 F.3d 910, 916 (7th 

Cir. 2012) (‘‘The impact of Title IX on 

student athletes is significant and 


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extends long beyond high school and 

college; in fact, numerous studies have 

shown that the benefits of participating 

in team sports can have life-long 

positive effects on women.’’ (citations 

omitted)). 

Despite the general principle that 

differential treatment or separation 

based on sex presumptively results in 

prohibited sex-based discrimination, 

Congress has authorized the Department 

to approach athletics in a distinct 

manner. In 1974, responding to 

concerns that Title IX would disrupt 

intercollegiate athletics, Congress 

enacted the Javits Amendment as part of 

the Education Amendments of 1974 to 

specifically authorize the Department to 

promulgate reasonable regulations in 

the context of athletics in light of ‘‘the 

nature of particular sports.’’ Education 

Amendments of 1974, Public Law 93– 

380, 844, 88 Stat. 484, 612 (1974). The 

Javits Amendment states: 

The [HEW] Secretary shall prepare and 

publish, not later than 30 days after the date 

of enactment of this Act, proposed 

regulations implementing the provisions of 

title IX of the Education Amendments of 

1972 relating to the prohibition of sex 

discrimination in federally assisted 

education programs which shall include with 

respect to intercollegiate athletic activities 

reasonable provisions considering the nature 

of particular sports. 

Id.; see also S. Conf. Rep. 93–1026, 1974 

U.S.C.C.A.N. 4206, 4271. The Secretary 

responded to this congressional 

direction by promulgating a regulation 

permitting sex separation in athletics in 

certain circumstances in ‘‘any 

interscholastic, intercollegiate, club or 

intramural athletics offered by a 

recipient.’’ 45 CFR 86.41(a) (1975); see 

also U.S. Dep’t of Health, Educ., and 

Welfare, Sex Discrimination in Athletic 

Programs, 40 FR 52655 (Nov. 11, 1975). 

Under Section 431(d)(1) of GEPA, 

Congress had forty-five days to find that 

HEW’s ‘‘final regulation is inconsistent 

with the Act from which it derives its 

authority, and disapprove such final 

regulation.’’ Congress did not take any 

steps to disapprove the regulation, and 

the regulation went into effect on July 

21, 1975. 

The 1975 athletics regulation, still in 

effect today, provides that when 

selection for athletic teams is based 

upon competitive skill or the activity 

involved is a contact sport, a recipient 

may offer teams either separately by sex 

or on a coeducational basis. The 

Department made clear that, in some 

instances, individual students may be 

denied access to particular teams as a 

result of such decisions, so long as 

‘‘equal opportunity’’ is ensured across 

‘‘the totality of the athletic program of 

the institution rather than each sport 

offered.’’ 40 FR 52656. As one court 

explained, the regulations grant some 

‘‘flexibility to the recipient of federal 

funds to organize its athletic program as 

it wishes, so long as the goal of equal 

athletic opportunity is met.’’ Williams v. 

Sch. Dist. of Bethlehem, 998 F.2d 168, 

171 (3d Cir. 1993). 

Thus, the Education Amendments of 

1974 established that, as to 

intercollegiate athletics, Congress 

contemplated that the Department might 

promulgate regulations that permit sex 

separation in contexts and in a manner 

that Title IX might otherwise prohibit, 

as long as such regulations are 

‘‘reasonable’’ and result in overall 

equality in athletic opportunities for the 

sexes. Congress’s effective approval of 

the 1975 HEW regulation reflects a 

further legislative understanding that, 

even apart from the intercollegiate 

setting, the Department’s regulations 

could allow recipients to adopt rules for 

male and female teams that may result 

in a denial of participation for 

individual students. These 

developments embody a longstanding 

congressional view that athletics 

presents unique considerations, and that 

therefore the Department may 

promulgate regulations to account for 

those considerations in ways that may 

sometimes deprive individual students, 

based on sex, of opportunities to fully 

participate on particular athletic teams, 

as long as the regulations are otherwise 

reasonable and require a recipient to 

provide equal athletics opportunities in 

its program as a whole. 

Consistent with Title IX and with 

Congress’s decision to afford the 

Secretary special discretion to 

promulgate regulations in the unique 

context of athletics, the Department will 

consider, in a separate notice of 

proposed rulemaking, amendments to 

§ 106.41 to address whether and how 

the Department should amend § 106.41 

in the context of sex-separate athletics, 

pursuant to the special authority 

Congress has conferred upon the 

Secretary to promulgate reasonable 

regulations with respect to the unique 

circumstances of particular sports, 

including what criteria, if any, 

recipients should be permitted to use to 

establish students’ eligibility to 

participate on a particular male or 

female athletics team. 

V. Retaliation 

Statute: Title IX states that ‘‘[n]o 

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 retaliation for the 

exercise of rights under Title IX. 

Although it is not explicit in the 

statutory language of Title IX, the 

Supreme Court and the Department 

have long interpreted Title IX to 

prohibit retaliation. The Department 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. 

Section 106.2 Definitions of 

‘‘Retaliation’’ and ‘‘Peer Retaliation’’ 

Current regulations: The current 

regulations do not define ‘‘retaliation,’’ 

however, current § 106.71(a) specifies 

the conduct that constitutes prohibited 

retaliation. Current § 106.71(a) states in 

part that ‘‘[n]o recipient or other person 

may intimidate, threaten, coerce, or 

discriminate against another individual 

for the purpose of interfering with any 

right or privilege secured by title IX or 

this part, or because the individual has 

made a report or complaint, testified, 

assisted, or refused to participate in any 

manner in an investigation, proceeding, 

or hearing under this part.’’ 

The current regulations do not 

include a definition of ‘‘peer 

retaliation,’’ or use the term ‘‘peer 

retaliation,’’ however, current 

§ 106.71(a) prohibits a ‘‘recipient or 

other person’’ from retaliating against 

‘‘any individual.’’ 

Proposed regulations: The 

Department proposes defining the term 

‘‘retaliation’’ in § 106.2 to mean 

intimidation, threats, coercion, or 

discrimination against any person by 

the recipient or by a specific individual 

affiliated with the recipient, including a 

student, an employee, or a person who 

provides aid, benefit, or service on 

behalf of the recipient. 

The proposed definition would 

encompass both retaliation by the 

recipient, including through its 

employees or others who are authorized 

by the recipient to provide aid, benefit, 

or service under the recipient’s 

education program or activity, and 

retaliation by students against other 

students. For clarity, the Department 

proposes defining the term ‘‘peer 

retaliation’’ separately in proposed 

§ 106.2. 

The proposed definition would 

further clarify that these actions would 

constitute retaliation if they are taken 

for the purpose of interfering with any 

right or privilege secured by Title IX or 

the Department’s Title IX regulations, or 


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14The regulations implementing each of the 

Federal civil rights laws enforced by the 

Department contain prohibitions on retaliation. 34 

CFR 100.7(e) (Title VI); 34 CFR 104.61 (Section 504) 

(incorporating 34 CFR 100.7(e) by reference); 34 

CFR 108.9 (Boy Scouts of America Equal Access 

Act) (incorporating 34 CFR 100.7(e) by reference); 

28 CFR 35.134 (Title II); 34 CFR 110.34 (Age 

Discrimination Act of 1975). Although the 

Department’s implementing regulations for Section 

504 and the Boy Scouts of America Equal Access 

Act incorporate Title VI’s prohibition on retaliation 

wholesale, its implementing regulations for the Age 

Discrimination Act and the Department of Justice’s 

implementing regulations for Title II include their 

own prohibitions on retaliation, which differ from 

the Title VI regulation to address issues unique to 

those statutes. See, e.g., 34 CFR 110.34 (expressly 

prohibiting retaliation in mediation and 

conciliation processes, which are required under 

the Age Discrimination Act). 

because the person has reported 

information, made a complaint, 

testified, assisted, or participated or 

refused to participate in any manner in 

an investigation, proceeding, or hearing 

under the regulations, including in an 

informal resolution process under 

proposed § 106.44(k), in grievance 

procedures under proposed § 106.45, 

and if applicable proposed § 106.46, and 

in any other appropriate steps taken by 

a recipient under proposed 

§ 106.44(f)(6) in response to sex 

discrimination. 

Reasons: Retaliation generally. 

Although the current regulations do not 

define the term ‘‘retaliation,’’ retaliatory 

conduct is prohibited under the current 

regulations in § 106.71. Retaliation was 

also prohibited prior to the 2020 

amendments, also in § 106.71, which 

had been included in the initial 1975 

implementing regulations under Title 

IX. This initial version of § 106.71 

incorporated the Title VI regulations’ 

procedural provisions, including Title 

VI’s prohibition on retaliation at 

§ 100.7(e). The Supreme Court has also 

recognized Title IX’s prohibition on 

retaliation, holding in Jackson that 

retaliation against a person for 

complaining of sex discrimination is 

‘‘discrimination ‘on the basis of sex’ ’’ in 

violation of Title IX. 544 U.S. at 173–74 

(‘‘Retaliation against a person because 

that person has complained of sex 

discrimination . . . is discrimination 

‘on the basis of sex’ because it is an 

intentional response to the nature of the 

complaint: an allegation of sex 

discrimination.’’). The Court also 

explained that retaliation by an 

employee against a person who 

complains of sex discrimination can be 

attributed to a recipient. See, e.g., id. at 

171–74 (considering the plaintiff’s 

supervisors’ negative performance 

evaluations and the school board’s 

decision to remove the plaintiff as a 

coach to be conduct by the recipient for 

purposes of the plaintiff’s retaliation 

claim); id. at 183 (stating that retaliation 

‘‘is easily attributable to the funding 

recipient, and it is always—by 

definition—intentional’’). 

The Department did not propose 

amending the Title IX regulations to 

address retaliation more specifically in 

the 2018 NPRM. However, in response 

to the 2018 NPRM, the Department 

received comments regarding the 

prevalence of retaliation in the context 

of complaints of sexual harassment. 

These comments stated that the existing 

protections against retaliation were 

inadequate to protect participants in a 

recipient’s grievance procedures, and 

commenters urged the Department to 

adopt an explicit prohibition on 

retaliation in its regulations 

implementing Title IX. In response, the 

Department codified current § 106.71 as 

part of the 2020 amendments to 

explicitly prohibit retaliation, 85 FR 

30535–38, and moved the incorporation 

of the remaining Title VI procedural 

protections to current § 106.81. The 

Department explained in the preamble 

to the 2020 amendments that it added 

the explicit prohibition on retaliation 

because otherwise ‘‘reporting may be 

chilled.’’ Id. at 30536. 

The Department now proposes 

separating the prohibition on retaliation 

in current § 106.71(a) into three distinct 

but related provisions: a definition of 

‘‘retaliation’’ in proposed § 106.2, a 

definition of ‘‘peer retaliation’’ in 

proposed § 106.2, and a prohibition on 

retaliation in proposed § 106.71. The 

Department proposes this revision to 

enhance clarity for recipients regarding 

their obligations related to retaliation 

under Title IX, which may differ from 

their obligations under other Federal 

statutes that also prohibit retaliation. 

See, e.g., Peters v. Jenney, 327 F.3d 307, 

320–21 (4th Cir. 2003) (stating that 

retaliation is prohibited under Title VI); 

Weeks v. Harden Mfg. Corp., 291 F.3d 

1307, 1311 (11th Cir. 2002) (stating that 

retaliation is prohibited under the ADA, 

the Age Discrimination in Employment 

Act, and Title VII); Lozman v. City of 

Riviera Beach, 138 S. Ct. 1945, 1949 

(2018) (stating that retaliation for 

exercising First Amendment rights is 

prohibited under 42 U.S.C. 1983); 42 

U.S.C. 2000e–3(a) (prohibiting 

retaliation in employment under Title 

VII).14 In order to ensure that the 

prohibition on retaliation in the 

Department’s Title IX regulations 

adequately identifies retaliatory conduct 

prohibited by Title IX’s statutory and 

regulatory framework, the Department 

proposes defining ‘‘retaliation’’ and 

‘‘peer retaliation’’ in proposed § 106.2 in 

a manner that would identify the scope 

of the retaliatory conduct under Title IX. 

Substantively, the proposed 

definitions of ‘‘retaliation’’ and ‘‘peer 

retaliation’’ in proposed § 106.2 would 

encompass the same conduct as current 

§ 106.71(a), but would clarify that such 

conduct is retaliatory when undertaken 

against a student, employee, or third 

party participating or attempting to 

participate in the recipient’s program or 

activity by a student, employee, or 

person authorized by the recipient to 

provide aid, benefit, or service under 

the recipient’s education program or 

activity. This clarification would align 

with the Department’s proposed 

definitions of ‘‘complainant’’ and ‘‘sexbased harassment’’ in § 106.2, which 

also refer to students, employees, or 

persons authorized by the recipient to 

provide aid, benefit, or service under 

the recipient’s education program or 

activity, or third persons participating 

or attempting to participate in a 

recipient’s education program or 

activity. 

In its proposed definitions of 

‘‘retaliation’’ and ‘‘peer retaliation’’ in 

§ 106.2, the Department would maintain 

the requirement in current § 106.71(a) 

that conduct that meets the definition of 

‘‘retaliation’’ is undertaken for the 

purpose of interfering with a right or 

privilege under Title IX or because 

someone participated or refused to 

participate in an investigation, 

proceeding, or hearing under Title IX. 

Participating or refusing to participate 

in a Title IX investigation, proceeding, 

or hearing includes an informal 

resolution process under proposed 

§ 106.44(k), grievance procedures under 

proposed § 106.45, and if applicable 

proposed § 106.46, and any other 

appropriate prompt and effective steps 

to ensure that sex discrimination does 

not continue or recur within the 

recipient’s education program or 

activity under proposed § 106.44(f)(6). 

The Department proposes these changes 

after considering comments received 

during the June 2021 Title IX Public 

Hearing and feedback received from 

stakeholders during listening sessions 

that additional protections from 

retaliation for those participating in 

grievance procedures are necessary to 

ensure full protection from prohibited 

retaliation. The Department does not 

intend, by specifying the proceedings 

just described, to exclude other Title IX 

processes in the current or proposed 

regulations. 

Peer retaliation. In addition to the 

definition of ‘‘retaliation,’’ the 

Department proposes including a 

definition of ‘‘peer retaliation’’ in 

proposed § 106.2. Although the 


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prohibition in current § 106.71(a) 

applies to retaliation by a recipient or 

other person against any individual, the 

regulations do not specifically address 

retaliation by a student against another 

student. In proposed § 106.71(b), the 

Department would explicitly state that a 

recipient has an obligation to prohibit 

and respond to peer retaliation. In 

response to feedback received during 

the June 2021 Title IX Public Hearing 

highlighting the pervasiveness of peer 

retaliation against those who participate 

in a recipient’s grievance procedures for 

sexual harassment, the Department 

proposes specifically defining ‘‘peer 

retaliation’’ in proposed § 106.2 to make 

clear that it would be a form of 

retaliation under Title IX. Proposed 

§ 106.71(b) would clarify a recipient’s 

responsibility to address peer 

retaliation, and this responsibility is 

explained in greater detail in the 

discussion of proposed § 106.71. It is the 

Department’s current view that adding a 

specific definition of ‘‘peer retaliation’’ 

would enhance clarity for both 

recipients and students regarding a 

recipient’s responsibility to respond to 

all forms of retaliatory conduct. The 

Department proposes defining ‘‘peer 

retaliation’’ as retaliation by and against 

students. The retaliatory conduct 

covered under this proposed definition 

would be the same as the conduct set 

out in the proposed definition of 

‘‘retaliation,’’ but it would cover only 

conduct engaged in by students against 

other students. For example, if a 

student’s locker is vandalized by his 

teammates because the student 

complained to the administration that 

his high school is not providing 

substantially proportional athletics 

participation opportunities for girls, that 

conduct would constitute peer 

retaliation. Similarly, if a student 

council president threatens to remove a 

student council member from a student 

council committee close in time to the 

student council member’s participation 

as a witness in sex-based harassment 

grievance procedures in which the 

student council president’s friend is the 

respondent, that conduct would 

constitute peer retaliation. As this 

example shows, retaliation by the 

friends of a student party against 

another party and conduct intended to 

threaten, punish, or deter a student from 

participating in a Title IX process could 

constitute peer retaliation. Peer 

retaliation can also constitute sex-based 

harassment or other adverse actions that 

do not meet the definition of ‘‘sex-based 

harassment,’’ but still meet the 

definition of ‘‘retaliation’’ in proposed 

§ 106.2. 

Section 106.71 Retaliation 

Current regulations: Current 

§ 106.71(a) prohibits intimidation, 

threats, coercion, or discrimination 

‘‘against any individual for the purpose 

of interfering with any right or privilege 

secured by title IX or this part, or 

because the individual has made a 

report or complaint, testified, assisted, 

or participated or refused to participate 

in any manner in an investigation, 

proceeding, or hearing under this part.’’ 

Current § 106.71(a) further states that 

intimidation, threats, coercion, or 

discrimination, including imposing 

discipline for code of conduct 

violations, arising out of the same facts 

or circumstances as a report or 

complaint of sex discrimination is 

prohibited retaliation when it is done 

‘‘for the purpose of interfering with an 

individual’s Title IX rights.’’ Under 

current § 106.71(a), a recipient must 

keep confidential the identities of ‘‘any 

individual who has made a report or 

complaint of sex discrimination, 

including any individual who has made 

a report or filed a formal complaint of 

sexual harassment, any complainant, 

any individual who has been reported to 

be the perpetrator of sex discrimination, 

any respondent, and any witness,’’ 

unless disclosure is permitted by 

FERPA, required by law, or is made to 

carry out Title IX obligations. All 

complaints alleging retaliation must be 

filed according to the grievance 

procedures under current § 106.8(c) for 

complaints of sex discrimination. 

Current § 106.71(b) clarifies that two 

specific circumstances do not constitute 

retaliation: the exercise of rights 

protected under the First Amendment 

and charging an individual with a code 

of conduct violation for making a 

materially false statement in bad faith 

during a Title IX grievance proceeding. 

With respect to the latter circumstance, 

current § 106.71(b)(2) clarifies that a 

determination of responsibility alone is 

not sufficient to conclude that any party 

made a materially false statement in bad 

faith. 

Proposed regulations: In proposed 

§ 106.71, the Department would require 

that a recipient prohibit retaliation, as 

defined in proposed § 106.2, in its 

education program or activity. The 

Department proposes moving the 

language describing the conduct that 

constitutes retaliation from current 

§ 106.71(a) to new proposed definitions 

of ‘‘retaliation’’ and ‘‘peer retaliation’’ in 

§ 106.2 and moving the prohibition in 

current § 106.71(a) on recipients 

disclosing the identities of those 

involved in the recipient’s Title IX 

process to proposed § 106.44(j). 

Proposed § 106.71 would specify the 

recipient’s obligation to prohibit and 

address retaliation. Proposed § 106.71 

states that when a recipient receives 

information about possible retaliation, it 

would have to comply with proposed 

§ 106.44, and when a recipient receives 

a complaint alleging retaliation, it 

would have to initiate its grievance 

procedures under proposed § 106.45. 

When a complaint of retaliation is 

consolidated under proposed § 106.45(e) 

with a complaint of sex-based 

harassment involving a student 

complainant or student respondent at a 

postsecondary institution, the 

Department proposes that the grievance 

procedures for investigating and 

resolving the consolidated complaint 

would have to comply with the 

requirements of proposed §§ 106.45 and 

106.46. 

Proposed § 106.71 would identify two 

examples of prohibited retaliation. 

Proposed § 106.71(a) would prohibit a 

recipient from initiating its disciplinary 

process against a person for a code of 

conduct violation that does not involve 

sex discrimination but arises out of the 

same facts and circumstances as a 

complaint or information reported about 

possible sex discrimination, for the 

purpose of interfering with the person’s 

exercise of their Title IX rights. The 

Department proposes removing the 

references to ‘‘intimidation, threats, 

coercion, or discrimination’’ in current 

§ 106.71(a) because they are duplicative 

of the definition of ‘‘retaliation’’ in 

proposed § 106.2, and proposes 

replacing ‘‘charges’’ in current 

§ 106.71(a) with ‘‘initiating a 

disciplinary process’’ in proposed 

§ 106.71(a). The Department also 

proposes identifying peer retaliation in 

proposed § 106.71(b) as a form of 

retaliation a recipient would have to 

prohibit and address. The Department 

also proposes limited changes to current 

§ 106.71(a) for consistency and clarity in 

proposed § 106.71(a). 

Finally, the Department proposes 

changing ‘‘individual’’ to ‘‘person’’ 

throughout proposed § 106.71 for 

consistency throughout this section. 

This change also would better align this 

section with other sections of the 

proposed regulations and the Title IX 

statute, all of which use ‘‘person.’’ 

Reasons: The Department affirms that 

retaliation is a form of sex 

discrimination prohibited by Title IX, 

Jackson, 544 U.S. at 173–74, and that 

robust protection against retaliation is 

necessary to ensure fulfillment of Title 

IX’s requirement that a recipient 

operates its education program or 

activity free from sex discrimination. 

The Department agrees with the 


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Supreme Court that ‘‘if recipients were 

permitted to retaliate freely, individuals 

who witness [sex] discrimination would 

be loath to report it and all manner of 

Title IX violations might go unremedied 

as a result.’’ Id. at 180. To fulfill Title 

IX’s guarantee, and consistent with the 

new definitions of ‘‘retaliation’’ and 

‘‘peer retaliation’’ in proposed § 106.2, 

the Department proposes revising 

current § 106.71 to ensure that a 

recipient would prohibit all forms of 

retaliation in its education program or 

activity. 

As explained in greater detail in the 

discussion of the proposed definitions 

of ‘‘retaliation’’ and ‘‘peer retaliation’’ 

(proposed § 106.2), the Department has 

consistently prohibited retaliation 

against any person for the purpose of 

interfering with a right or privilege 

under Title IX or for participating or 

refusing to participate in a recipient’s 

Title IX processes, including its 

grievance procedures. Prior to the 2020 

amendments, the Department prohibited 

retaliation by incorporating the 

prohibition on retaliation from the 

procedural protections in § 100.7(e) of 

the Department’s Title VI regulations. 

As part of the 2020 amendments, the 

Department revised § 106.71 to 

expressly prohibit retaliation. The Title 

IX regulations have always extended the 

prohibition on retaliation to all 

participants in a recipient’s Title IX 

processes, including complainants, 

respondents, witnesses, and others 

participating in these processes, 

regardless of whether the participant 

provided information or otherwise 

participated in the process in support of 

the complainant, respondent, or the 

recipient. 

The Department notes that in DuBois 

v. Board of Regents of the University of 

Minnesota, 987 F.3d 1199 (8th Cir. 

2021), the U.S. Court of Appeals for the 

Eighth Circuit stated that the 

Department’s regulations do not 

‘‘prohibit discrimination because of 

participation in an investigation,’’ in 

contrast to the Title VI regulations. Id. 

at 1205 (citing 34 CFR 100.7(e)). The 

Department also notes, however, that in 

the 47 years since HEW first 

promulgated regulations under Title IX, 

those regulations have always 

prohibited retaliation against 

participants in Title IX processes and 

OCR has consistently relied on this 

interpretation in its enforcement 

practice. See 45 CFR 86.71; see U.S. 

Dep’t of Educ., Office for Civil Rights, 

Case Resolutions Regarding Sex 

Discrimination, https://www2.ed.gov/ 

about/offices/list/ocr/frontpage/ 

caseresolutions/sex-cr.html; see also 

U.S. Dep’t of Educ., Office for Civil 

Rights, Dear Colleague Letter: 

Retaliation at 1–2 (Apr. 24, 2013), 

https://www2.ed.gov/about/offices/list/ 

ocr/letters/colleague-201304.pdf. 

Therefore, the Department does not 

follow the Eighth Circuit’s decision in 

enforcing the prohibition on retaliation 

in current § 106.71(a), or in proposing 

revisions to § 106.71(a). 

Changes to current § 106.71(a). The 

Department seeks to restructure 

proposed § 106.71 to clarify the 

prohibition on retaliation and to move 

the language defining the term 

‘‘retaliation’’ to proposed § 106.2. The 

Department would also move the 

requirement that a recipient keep 

confidential the identities of those 

involved in Title IX processes from 

current § 106.71(a) to proposed 

§ 106.44(j). The Department proposes 

moving this provision because, as 

explained in the discussion of proposed 

§ 106.44(j), current § 106.71(a)’s 

prohibition on the recipient’s disclosure 

is not limited to circumstances in which 

the disclosure would be retaliatory. This 

prohibition would help ensure that 

persons involved in Title IX processes 

are able to participate freely in the 

recipient’s efforts to address sex 

discrimination. To the extent that a 

recipient discloses the identities of 

those involved in Title IX processes for 

the purpose of interfering with a Title IX 

right, that disclosure would violate 

proposed § 106.44(j) and constitute 

retaliation under proposed § 106.71(a). 

Proposed § 106.71 would require a 

recipient to prohibit retaliation, set out 

a recipient’s required response to 

prohibited retaliation, and identify two 

examples of common retaliatory 

conduct. The Department proposes 

revising § 106.71 to provide clarity 

regarding a recipient’s obligations to 

prohibit and respond to retaliation, in 

response to concerns from stakeholders 

raised with OCR during the June 2021 

Title IX Public Hearing and in listening 

sessions, that additional protections 

from retaliation for participants in Title 

IX grievance procedures are necessary to 

ensure full protection from prohibited 

retaliation. 

Proposed § 106.71. In view of the 

Department’s continued interest in 

ensuring full implementation of Title 

IX’s prohibition on retaliation, the 

Department proposes requiring a 

recipient to prohibit retaliation against 

any person by students, employees, and 

other persons authorized by the 

recipient to provide an aid, benefit, or 

service to the recipient’s education 

program or activity. In addition, in 

proposed § 106.71, the Department 

would specify the recipient’s obligation 

to address retaliation and set out the 

specific ways that a recipient must 

address information regarding possible 

retaliation under proposed § 106.44 or a 

complaint of retaliation using its 

grievance procedures under proposed 

§ 106.45. 

Under proposed § 106.71, all 

complaints alleging retaliation as 

defined in proposed § 106.2, including 

complaints alleging retaliation that arise 

from the same facts or circumstances as 

a complaint or information reported 

about possible sex discrimination, 

would require the recipient to initiate 

its grievance procedures under 

proposed § 106.45. It bears noting that 

although retaliation may arise in 

connection with sex-based harassment 

and some instances of retaliation may 

also constitute sex-based harassment, 

retaliatory conduct is not necessarily 

conduct that would constitute sex-based 

harassment; instead, it is a distinct form 

of sex discrimination as discussed 

above. Therefore, it is the Department’s 

current position that retaliation 

complaints may be made by any of the 

persons specified in proposed 

§ 106.45(a)(2) as entitled to make a 

complaint of sex discrimination, 

including: the complainant; anyone who 

has the right to act on behalf of the 

complainant under proposed § 106.6(g); 

the Title IX Coordinator; or any student, 

employee, or third party who is 

participating or attempting to 

participate in the recipient’s education 

program or activity when the alleged sex 

discrimination occurred. 

When a complaint alleging retaliation 

arises from the same facts or 

circumstances as another complaint or 

information reported about possible sex 

discrimination, such as when a person 

experiences retaliation for participating 

in the recipient’s grievance procedures 

under Title IX, the recipient would be 

permitted to consolidate the retaliation 

complaint with the other complaint of 

sex discrimination under proposed 

§ 106.45(e). When the complaint of 

retaliation is consolidated with a 

complaint of sex-based harassment 

involving a student complainant or 

student respondent at a postsecondary 

institution, the grievance procedures for 

the consolidated complaint would be 

required to comply with proposed 

§§ 106.45 and 106.46. By providing a 

recipient the discretion to consolidate 

retaliation complaints with complaints 

alleging other forms of sex 

discrimination, the proposed 

regulations would allow the recipient to 

respond to allegations of such 

retaliation more efficiently and 

effectively than under the current 

regulations. 


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15The Department views the case law as 

instructive for explaining that a recipient has an 

obligation to respond to peer retaliation. At the 

same time, as explained in the discussion of OCR’s 

Guidance and Supreme Court Precedent on Title 

IX’s Application to Sexual Harassment (Section 

II.B.1), the Department recognizes that its 

administrative enforcement of Title IX differs in 

significant ways from private lawsuits for monetary 

damages and proposes that the applicable standards 

for a recipient’s response to peer retaliation in the 

administrative enforcement context should likewise 

differ from those imposed by courts in private 

litigation. In particular, as explained in the 

discussion of proposed § 106.44(a), the 

Department’s role in implementing Title IX is to 

ensure that a recipient complies with its legal duty 

to operate its education program or activity free 

from sex discrimination, including retaliation 

against a student for seeking to enforce their right 

to be free from sex discrimination in the recipient’s 

education program or activity. 

Proposed § 106.71(a). The Department 

recognizes that a recipient’s use of its 

disciplinary process to interfere with 

the ability of members of its community 

to exercise their rights under Title IX is 

a form of retaliation. In view of this, the 

Department proposes maintaining this 

portion of current § 106.71(a), clarifying 

the application of this portion of current 

§ 106.71(a), and making limited edits for 

consistency with other provisions in the 

proposed regulations. 

Through the June 2021 Title IX Public 

Hearing, OCR received feedback 

requesting that the Department find 

ways to ensure that a recipient 

implements its grievance procedures in 

a manner that does not intimidate those 

seeking to provide information 

regarding sex discrimination or to 

participate fully in the recipient’s 

grievance procedures. Stakeholders 

stated that complainants who reported 

sex-based harassment to their schools 

have been threatened with or faced 

disciplinary sanctions for reporting sexbased harassment. These stakeholders 

also expressed concern that retaliatory 

implementation of a recipient’s code of 

conduct would deter students from 

reporting sex-based harassment and 

accessing supportive measures or other 

forms of support that may be provided 

by the recipient. The Department shares 

these concerns and proposes 

maintaining current § 106.71(a) but 

wishes to clarify the application of this 

provision. 

In the preamble to the 2020 

amendments, the Department explained 

that ‘‘[i]f a recipient always takes a zero 

tolerance approach to underage drinking 

in its code of conduct and always 

imposes the same punishment for 

underage drinking, irrespective of the 

circumstances, then imposing such a 

punishment would not be ‘for the 

purpose of interfering with any right or 

privilege secured by’ Title IX or these 

final regulations and thus would not 

constitute retaliation under these final 

regulations.’’ 85 FR 30536. After 

reweighing the facts and circumstances, 

including but not limited to feedback 

from stakeholders regarding the impact 

of such conduct on participation in the 

Title IX process, the Department 

submits that it is appropriate to clarify 

its interpretation of current § 106.71(a). 

The Department recognizes that when 

alleging that a recipient has engaged in 

retaliatory enforcement of its code of 

conduct, a complainant will not 

typically have access to the information 

necessary to definitively allege that the 

recipient did not consistently 

implement its zero-tolerance approach 

in order to demonstrate that 

enforcement of the code of conduct was, 

in that instance, retaliatory. The 

Department’s current view is that the 

position taken in the preamble to the 

2020 amendments did not fully account 

for this imbalance in access to 

information. Under these proposed 

regulations, a recipient that implements 

a zero-tolerance approach would be 

required to comply with its obligations 

under proposed § 106.71(a). Moreover, 

as explained in greater detail in the 

discussion of proposed § 106.44(b), a 

recipient would have to ensure that, 

through its Title IX Coordinator, it is 

monitoring potential barriers to those 

seeking to provide information 

regarding conduct that may constitute 

sex discrimination under Title IX, 

including retaliation. 

The Department also proposes a 

nonsubstantive change to the regulatory 

text for proposed § 106.71(a) to replace 

‘‘charges’’ with ‘‘initiating a disciplinary 

process.’’ 

Proposed § 106.71(b). The Department 

proposes explicitly identifying peer 

retaliation as prohibited retaliatory 

conduct in proposed § 106.71(b) to 

ensure that a recipient prohibits and 

addresses any conduct that meets the 

definition of ‘‘peer retaliation’’ in 

proposed § 106.2. 

The Department’s 2018 NPRM did not 

propose amending the Title IX 

regulations to specifically address peer 

retaliation or retaliation more generally, 

as discussed above. Commenters on the 

2018 NPRM, recognizing that the Title 

IX regulations have long prohibited 

retaliation, sought clarity about the 

standards that would apply to a 

recipient’s obligation to respond to a 

complaint of peer retaliation and, in 

particular, whether the Department’s 

proposed requirement of actual 

knowledge and proposed deliberate 

indifference standard for a recipient’s 

response to sexual harassment would 

apply to retaliation as well. 85 FR 

30277, 30535. In response to these 

comments, the Department declined to 

apply an actual knowledge requirement 

to retaliation, explaining in the 

preamble to the 2020 amendments that 

the ‘‘actual knowledge requirement in 

[the current regulations] applies to 

sexual harassment and does not apply to 

a claim of retaliation’’ because ‘‘the 

Supreme Court has not applied an 

actual knowledge requirement to a 

claim of retaliation,’’ unlike with 

respect to sexual harassment, as set out 

in Gebser and Davis. Id. at 30537. The 

Department amended § 106.71 to 

explicitly prohibit retaliation without 

adding language regarding a recipient’s 

obligation to respond to information 

about peer retaliation in its education 

program or activity. 

OCR received feedback from 

stakeholders during listening sessions 

and through the June 2021 Title IX 

Public Hearing requesting that the 

Department review the 2020 

amendments and take further steps to 

address a recipient’s obligation to 

respond to peer retaliation. Stakeholders 

stated that peer retaliation continues to 

be a problem that chills reporting for 

potential complainants and affects both 

complainants and respondents going 

through a recipient’s grievance 

procedures. These stakeholders 

requested that the Department 

strengthen its anti-retaliation 

protections and ensure that recipients 

address peer retaliation beyond the 

steps taken in the 2020 amendments. 

The Department notes that courts 

have recognized that a recipient has a 

responsibility to address peer 

retaliation. See Hurley, 911 F.3d at 695 

(‘‘[A]n educational institution can be 

liable for acting with deliberate 

indifference toward known instances of 

student-on-student retaliatory 

harassment.’’); Doe v. Sch. Dist. No. 1, 

970 F.3d 1300, 1311 (10th Cir. 2020) 

(holding that peer retaliation for 

reporting a sexual assault is a form of 

retaliation to which a school must 

respond).15 In these cases, the courts 

recognize that a recipient must address 

peer retaliation under Title IX as a form 

of prohibited retaliation consistent with 

Jackson. 

The Department is aware that some 

courts have recognized a recipient’s 

obligation to respond to retaliatory peer 

harassment as part of its obligation to 

respond to sex-based harassment. See, 

e.g., Doe v. Ohio Univ., No. 2:21–cv– 

858, 2022 WL 899687, *5 (S.D. Ohio 

Mar. 28, 2022). It is the Department’s 

current view that Title IX requires the 

recipient to address this conduct 

whether it constitutes sex-based 

harassment or peer retaliation. See 

Hurley, 911 F.3d at 696 (holding that the 


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plaintiffs may assert separate claims for 

both retaliation and sexual harassment 

against the university based on the same 

underlying facts). 

After considering recent case law as 

well as the feedback received following 

the implementation of the 2020 

amendments, it is the Department’s 

current position that, to fully implement 

Title IX, the proposed regulations must 

require recipients to address sex 

discrimination in the form of peer 

retaliation. The Department also 

recognizes that the 2020 amendments 

did not specify the steps a recipient 

must take in response to peer 

retaliation, and that this lack of 

specificity may cause confusion for 

recipients and others. Therefore, the 

Department proposes specifically 

requiring a recipient to address 

information about possible peer 

retaliation consistent with its obligation 

to address conduct that may constitute 

sex discrimination under proposed 

§ 106.44. 

The Department notes that the items 

described in proposed § 106.71 as 

examples of prohibited retaliation do 

not represent an exhaustive list. For 

example, in connection with the June 

2021 Title IX Public Hearing and during 

listening sessions with stakeholders, 

OCR heard from individuals who 

identified instances in which 

respondents or others made complaints 

accusing a complainant of sex-based 

harassment for the purpose of 

intimidating a complainant or coercing 

a complainant to withdraw the 

complainant’s original complaint of sexbased harassment. If a complainant 

alleges that another person made a 

complaint in retaliation for their 

original complaint, the recipient would 

be required to determine whether that 

other person’s complaint constituted 

prohibited retaliation under proposed 

§ 106.71. 

The Department also recognizes that a 

recipient may be engaging in prohibited 

retaliation when it disciplines an 

individual for discussing conduct that 

would constitute sex discrimination 

under Title IX if the recipient takes that 

disciplinary action for the purpose of 

retaliating against the individual rather 

than for another reason, such as taking 

reasonable steps to protect the privacy 

of parties, witnesses, and others 

participating in the recipient’s grievance 

procedures in proposed § 106.45(b)(5). 

OCR received comments during the June 

2021 Title IX Public Hearing requesting 

clarification that discipline for engaging 

in these discussions is prohibited. 

Whether this action constitutes 

retaliation would be a fact-specific 

inquiry to determine whether the 

recipient disciplined the individual for 

the purpose of interfering with that 

individual’s Title IX rights. 

Removal of current § 106.71(b). The 

Department proposes removing current 

§ 106.71(b)(1) as redundant because of 

the protections afforded in current 

§ 106.6(d)(1). The Department stated in 

the preamble to the 2020 amendments 

that it added current § 106.71(b)(1) to 

address concerns that anti-retaliation 

efforts, when applied erroneously, may 

affect speech protected under the First 

Amendment. Id. at 30537. As explained 

in the discussion of the definition of 

prohibited ‘‘sex-based harassment’’ 

(proposed § 106.2), the Department has 

long made clear that it enforces Title IX 

consistent with the requirements of the 

First Amendment. The Department has 

explained that the Department’s 

‘‘regulations and policies do not require 

or prescribe speech, conduct or 

harassment codes that impair the 

exercise of rights protected under the 

First Amendment.’’ 2003 First 

Amendment Dear Colleague Letter. In 

addition, current § 106.6(d)(1) states that 

nothing in the regulations requires a 

recipient to ‘‘restrict any rights that 

would otherwise be protected from 

government action by the First 

Amendment of the U.S. Constitution.’’ 

Therefore, the Department submits that 

current § 106.71(b)(1) is redundant and 

its removal would be appropriate. 

VI. Outdated Regulatory Provisions 

Section 106.3(c) and (d) SelfEvaluation 

Current regulations: Section 106.3(c) 

required that each recipient educational 

institution, within one year of the 

effective date of the original regulations, 

conduct a self-evaluation of its policies 

and practices and make modifications as 

necessary to comply with the 

regulations. Current § 106.3(d) required 

the recipient to maintain records of the 

self-evaluation for three years. 

Proposed regulations: The 

Department proposes removing these 

paragraphs in their entirety. 

Reasons: These provisions described 

requirements that expired in June 1979. 

The Department proposes to remove 

these provisions because they are no 

longer operative. 

Sections 106.16 and 106.17 Transition 

Plans 

Current regulations: Section 106.16 

required certain educational institutions 

that had admitted students of only one 

sex prior to the passage of Title IX to 

carry out a transition plan described in 

current § 106.17. 

Proposed regulations: The 

Department proposes removing these 

provisions from the regulations in their 

entirety. 

Reasons: These provisions described 

the process for certain educational 

institutions to submit transition plans to 

convert their single-sex admissions 

processes to nondiscriminatory 

processes before June 1979. The 

Department proposes to remove these 

provisions because they are no longer 

operative. 

Section 106.2(s) Definition of 

‘‘Transition Plan’’ 

Current regulations: Section 106.2(s) 

defines the term ‘‘transition plan,’’ 

which is used in current §§ 106.16 and 

106.17. 

Proposed regulations: The 

Department proposes removing this 

definition from § 106.2. 

Reasons: The term ‘‘transition plan’’ 

is used in provisions that the 

Department proposes to remove because 

they are no longer operative. 

Section 106.15(b) Admissions 

Current regulations: Section 106.15(b) 

provides that, for purposes of §§ 106.15, 

106.16, and 106.17, and subpart C, each 

administratively separate unit shall be 

deemed to be an educational institution. 

Proposed regulations: The 

Department proposes removing the 

reference to §§ 106.16 and 106.17. 

Reasons: The Department proposes 

removing current §§ 106.16 and 106.17 

in their entirety, which makes the 

references to those sections in 

§ 106.15(b) moot. 

Section 106.21(a) Admission 

Current regulations: Section 106.21(a) 

provides that no person shall, on the 

basis of sex, be denied admission, or be 

subjected to discrimination in 

admission, by any recipient to which 

this subpart applies, except as provided 

in §§ 106.16 and 106.17. 

Proposed regulations: The 

Department proposes removing the 

reference to §§ 106.16 and 106.17. 

Reasons: The Department proposes 

removing current §§ 106.16 and 106.17 

in their entirety, which makes the 

references to those sections in 

§ 106.21(a) moot. 

Section 106.41(d) Adjustment Period 

Current regulations: Section 106.41(d) 

specified the timeframe for recipients to 

come into compliance with the Title IX 

regulations after they were originally 

issued in 1975. 

Proposed regulations: The 

Department proposes removing this 

subsection of the regulations in its 

entirety. 

Reasons: This provision required 

recipients to come into compliance with 


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16Executive Order on Regulatory Planning and 

Review, Exec. Order. No. 12866, 58 FR 51735 (Oct. 

4, 1993), https://www.govinfo.gov/content/pkg/FR1993-10-04/pdf/FR-1993-10-04.pdf. 

17Executive Order on Improving Regulation and 

Regulatory Review, Exec. Order No. 13563, 76 FR 

3821 (Jan. 18, 2011), https://www.govinfo.gov/ 

content/pkg/FR-2011-01-21/pdf/2011-1385.pdf. 

§ 106.41 no later than June 1978. The 

Department proposes to remove this 

provision because it is no longer 

operative. 

VII. Directed Questions 

The Department invites you to submit 

comments on all aspects of the proposed 

regulations, as well as the Regulatory 

Impact Analysis. The Department is 

particularly interested in comments on 

questions posed throughout the 

Preamble, which are collected here for 

the convenience of commenters, with a 

reference to the section in which they 

appear. The Department is also 

interested in comments on questions 

posed in the Regulatory Impact 

Analysis. 

1. Interaction with Family 

Educational Rights and Privacy Act 

(FERPA) (proposed § 106.6(e)) Some 

aspects of the proposed regulations 

address areas in which recipients may 

also have obligations under FERPA, 20 

U.S.C. 1232g, or its implementing 

regulations, 34 CFR part 99, including, 

for example, provisions regarding the 

exercise of rights by parents, guardians, 

or other authorized legal representatives 

at proposed § 106.6(g); disclosure of 

supportive measures at proposed 

§ 106.44(g)(5); consolidation of 

complaints at proposed § 106.45(e); 

description of the relevant evidence at 

proposed § 106.45(f)(4); access to an 

investigative report or relevant and not 

otherwise impermissible evidence at 

proposed § 106.46(e)(6); and notification 

of the determination of a sex 

discrimination complaint at proposed 

§§ 106.45(h)(2) and 106.46(h)(1). The 

Department is seeking comments on the 

intersection between the proposed Title 

IX regulations and FERPA, any 

challenges that recipients may face as a 

result of the intersection between the 

two laws, and any steps the Department 

might take to address those challenges 

in the Title IX regulations. 

2. Recipient’s Obligation To Provide an 

Educational Environment Free From 

Sex Discrimination (Proposed 

§§ 106.44–106.46) 

The proposed regulations at 

§§ 106.44, 106.45, and 106.46 clarify the 

obligation of a recipient to respond 

promptly and effectively to information 

and complaints about sex 

discrimination in its education program 

or activity in a way that ensures full 

implementation of Title IX. The 

Department invites comments on 

whether there are additional 

requirements that should be included 

in, or removed from, the current and 

proposed regulations to assist recipients 

in meeting their obligation under Title 

IX to provide an educational 

environment free from discrimination 

based on sex. The Department also seeks 

comment on whether and how any of 

the proposed grievance procedures (or 

any proposed additions from 

commenters) should apply differently to 

various subgroups of complainants or 

respondents, such as students or 

employees, or students at varying 

educational levels. 

3. Single Investigator (Proposed 

§ 106.45(b)(2)) 

The Department is aware that, prior to 

August 2020, some recipients used a 

single investigator or team of 

investigators to investigate complaints 

of sex-based harassment and make 

determinations whether sex-based 

harassment occurred. The Department 

invites comments on recipients’ 

experiences using that model to comply 

with Title IX and the steps taken, if any, 

to ensure adequate, reliable, and 

impartial investigation and resolution of 

complaints, including equitable 

treatment of the parties and reliable 

grievance procedures that are free from 

bias. The Department also invites 

comments on these issues from persons 

who were parties or served as an advisor 

to a party to a complaint that was 

investigated and resolved by a recipient 

using a single investigator model. 

4. Standard of Proof (Proposed 

§ 106.45(h)(1)) 

a. To the extent commenters take the 

position that the clear and convincing 

standard would be appropriate when 

used in all other comparable 

proceedings, the Department invites 

comments on steps that recipients 

implementing that standard have taken 

to ensure equitable treatment between 

the parties. 

b. The Department invites comments 

on whether it is appropriate to allow a 

recipient to use a different standard of 

proof in employee-on-employee sex 

discrimination complaints, than it uses 

in sex discrimination complaints 

involving a student. 

c. The Department invites comments 

on whether it would be appropriate to 

mandate the use of only one standard of 

proof for sex discrimination complaints. 

Regulatory Impact Analysis (RIA) 

Under Executive Order 12866,16 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 regulations 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 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. 

This proposed action is ‘‘significant’’ 

and therefore subject to review by OMB 

under section 3(f)(4) of this Executive 

Order because it raises novel legal or 

policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in this Executive 

Order. 

The Department has also reviewed the 

proposed regulations under Executive 

Order 13563,17 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 


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18Executive Order on Preventing and Combating 

Discrimination on the Basis of Gender Identity or 

Sexual Orientation, Exec. Order No. 13988, 86 FR 

7023 (Jan. 25, 2021), https://www.govinfo.gov/ 

content/pkg/FR-2021-01-25/pdf/2021-01761.pdf. 

19Executive Order on Guaranteeing an 

Educational Environment Free from Discrimination 

on the Basis of Sex, Including Sexual Orientation 

and Gender Identity, Exec. Order No. 14021, 86 FR 

13803 (Mar. 11, 2021), https://www.govinfo.gov/ 

content/pkg/FR-2021-03-11/pdf/2021-05200.pdf. 

20The transcript from the June 2021 Title IX 

Public Hearing is available at https://www2.ed.gov/ 

about/offices/list/ocr/docs/202106-titleixpublichearing-complete.pdf. 

21The written comments that OCR received as 

part of the June 2021 Title IX Public Hearing are 

available at https://www2.ed.gov/about/offices/list/ 

ocr/public-hearing.html. 

(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 technological 

innovation or anticipated behavioral 

changes.’’ 

Under Executive Order 13563, the 

Department believes that the benefits of 

these proposed regulations justify their 

costs. In choosing among alternative 

regulatory approaches, the Department 

selected those approaches that 

maximize net benefits. Based on the 

analysis that follows, the Department 

believes that the proposed regulations 

are consistent with the principles in 

Executive Order 13563. 

The Department has also 

preliminarily determined that this 

regulatory action would not unduly 

interfere with State, local, or Tribal 

governments in the exercise of their 

governmental functions. 

This RIA discusses the need for 

regulatory action, the potential costs 

and benefits, assumptions, limitations, 

and data sources, as well as regulatory 

alternatives considered. Although most 

of the costs related to information 

collection are discussed within this RIA, 

under Paperwork Reduction Act of 

1995, this notice also identifies and 

further explains burdens specifically 

associated with information collection 

requirements. 

1. Need for Regulatory Action 

In 2021, the President directed the 

Department in both Executive Order 

13988 18 and Executive Order 14021 19

to review its current regulations 

implementing Title IX for consistency 

with Title IX’s statutory prohibition on 

sex discrimination by a recipient of 

Federal financial assistance in its 

education program or activity. 

Consistent with those Executive Orders, 

the Department reviewed the current 

regulations based on Federal case law 

under Title IX, its experience in 

enforcement, and feedback received by 

OCR from stakeholders during the June 

2021 Title IX Public Hearing,20 listening 

sessions, and the meetings held in 2022 

under Executive Order 12866. Over 280 

students, parents, teachers, faculty 

members, school staff, administrators, 

and other members of the public 

provided live comments during the June 

2021 Title IX Public Hearing, and OCR 

also received over 30,000 written 

comments 21 in connection with the 

hearing. In addition, a wide variety of 

stakeholders participated in the 

listening sessions with OCR, including 

survivors of sexual violence, students 

accused of sexual misconduct, LGBTQI+ 

students, and advocates representing 

these groups of students; organizations 

focused on Title IX and athletics; 

organizations focused on free speech 

and due process; organizations 

representing elementary schools and 

secondary schools (or local educational 

agencies (LEAs)), as well as 

postsecondary institutions (or 

institutions of higher education (IHEs)), 

teachers, administrators, and parents; 

attorneys representing survivors, 

accused students, and schools; State 

attorneys general offices; Title IX 

Coordinators and other school 

administrators; individuals who provide 

training on Title IX to schools; 

individuals who work in campus law 

enforcement; and individuals who have 

participated in school-level Title IX 

proceedings. The meetings under 

Executive Order 12866 in 2022 included 

individuals and representatives of the 

same types of groups, organizations, and 

offices as those who participated in the 

listening sessions with OCR. Based on 

this review, the Department proposes 

amending its regulations to ensure that 

all aspects of its regulatory framework 

under Title IX are well-suited to 

implementing Title IX’s prohibition on 

sex discrimination in education 

programs or activities that receive 

Federal financial assistance. The 

Department also proposes amendments 

intended to improve and promote 

educational environments free of sex 

discrimination in a manner that 

recognizes fairness and safety concerns. 

Among the considerations was 

feedback received from many 

stakeholders during the June 2021 Title 

IX Public Hearing, listening sessions, 

and meetings held under Executive 

Order 12866, stating that the current 

regulations include onerous 

requirements for sexual harassment 

grievance procedures that are 

unnecessarily adversarial in nature— 

potentially resulting in a decrease in 

students’ willingness to file complaints 

or fully participate in the grievance 

process. These stakeholders also stated 

that the current requirements for sexual 

harassment grievance procedures 

unduly increase administrative burden 

and intrude on a recipient’s professional 

judgment and expertise regarding how 

best to respond to allegations of student 

misconduct without improving the 

recipient’s ability to address sex 

discrimination within their education 

environments. During the June 2021 

Title IX Public Hearing, some 

stakeholders expressed support for the 

current regulations, remarking that the 

requirements governing a recipient’s 

sexual harassment grievance procedures 

should remain in place without change, 

while other stakeholders suggested the 

Department amend various provisions 

in the regulations that they deemed 

important (including the deliberate 

indifference standard, the actual 

knowledge requirement, and specific 

requirements related to grievance 

procedures for formal complaints of 

sexual harassment). Many stakeholders 

expressed concerns regarding the scope 

of the current regulatory definition of 

‘‘sexual harassment,’’ the requirement 

that a recipient need only respond to 

sexual harassment when it has actual 

knowledge, and that it need only 

respond in a manner that is not 

deliberately indifferent. Apart from 

addressing sexual harassment, many 

stakeholders asked the Department to 

clarify protections related to 

discrimination based on sexual 

orientation and gender identity, 

presenting a variety of positions that 

they urged the Department to adopt, 

while other stakeholders asked the 

Department to clarify Title IX’s 

protections against discrimination based 

on pregnancy or related conditions. 

The Department proposes amending 

its Title IX regulations to address the 

concerns raised by stakeholders and 

anticipates that the proposed 

regulations would result in many 

benefits to recipients, students, 

employees, and others, including by: 

• Requiring recipients to adopt 

grievance procedures that provide for 

the prompt and equitable resolution of 

complaints of sex discrimination and 


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take other necessary steps to provide an 

educational environment free from sex 

discrimination; 

• Clarifying the Department’s view of 

the scope of Title IX’s prohibition on 

sex discrimination, including related to 

a hostile environment under the 

recipient’s education program or 

activity, as well as discrimination on the 

basis of sex stereotypes, sex 

characteristics, sexual orientation, 

pregnancy or related conditions, and 

gender identity; 

• Clarifying a recipient’s obligations 

to students and employees who are 

pregnant or experiencing pregnancyrelated conditions. 

As discussed in more detail in the 

following sections, it is the 

Department’s belief that the proposed 

regulatory changes will fulfill Title IX’s 

overarching goal: to ensure that no 

person experiences sex discrimination 

in education. To that end, the 

Department aims to ensure that all 

recipients can implement Title IX’s 

nondiscrimination mandate fully and 

fairly in their educational environments. 

2. Discussion of Costs, Benefits, and 

Transfers 

The Department has analyzed the 

costs and benefits of complying with the 

proposed regulations. Although many of 

the associated costs and benefits are not 

easily quantifiable, the Department 

currently believes that the benefits 

derived from the proposed regulations 

outweigh the associated costs given that 

the objectives of the rulemaking are to 

ensure: (1) that sex discrimination does 

not take place in any education program 

or activity receiving Federal financial 

assistance, and (2) that sex 

discrimination is redressed promptly 

and effectively if it occurs. 

Title IX, which applies to 

approximately 18,000 LEAs, over 6,000 

IHEs, and numerous other recipients 

such as libraries and museums, requires 

a recipient to provide an education 

program or activity that is free from sex 

discrimination. The proposed 

regulations would introduce new 

obligations and clarify existing 

obligations of entities subject to the 

regulations in order to promote an 

educational environment free from sex 

discrimination. The Department expects 

that the proposed regulations would 

benefit recipients, as well as students, 

employees, and others by ensuring that 

students, employees, and others 

understand their rights and recipients 

understand their responsibilities under 

Title IX; clarifying the scope and 

application of Title IX including but not 

limited to the obligation of recipients to 

address all forms of sex discrimination; 

ensuring that supportive measures will 

be provided, as appropriate, to a 

complainant and respondent to restore 

or preserve that party’s access to the 

recipient’s education program or 

activity; clarifying that remedies are 

available, as appropriate, to anyone 

subjected to sex discrimination while 

participating in or attempting to 

participate in a recipient’s education 

program or activity; requiring recipients 

to provide training for employees 

regarding their obligations under Title 

IX; revising the requirements for 

grievance procedures to provide for the 

prompt and equitable resolution of 

complaints of any form of sex 

discrimination; allowing a recipient the 

ability to adapt its grievance procedures 

to its size, population served, and 

administrative structure while ensuring 

equitable treatment of all parties; 

clarifying the responsibilities of Title IX 

Coordinators; and ensuring 

nondiscriminatory access to a 

recipient’s education program or 

activity for students and employees who 

are pregnant or experiencing related 

conditions. The Department believes 

that the proposed regulations would 

provide numerous important benefits 

and also recognizes that it is not able to 

quantify each of these benefits at this 

time. Still, it is the Department’s 

tentative view that the proposed 

changes just described, in addition to 

others discussed more fully throughout 

the RIA, would reduce the occurrence of 

sex discrimination in a recipient’s 

education program or activity and 

facilitate a prompt and equitable 

resolution when sex discrimination 

occurs, thereby supporting a recipient’s 

efforts to provide an educational 

environment free from sex 

discrimination. Although there are 

limited data quantifying the economic 

impacts of sex discrimination, including 

sex-based harassment, on individuals, 

studies suggest that there is a cost 

associated with being subjected to sex 

discrimination. See, e.g., Centers for 

Disease Control and Prevention, Fast 

Facts: Preventing Sexual Violence, 

https://www.cdc.gov/ 

violenceprevention/sexualviolence/ 

fastfact.html (last visited June 16, 2022) 

(describing the economic burden of 

sexual violence involving physical 

contact on victims within their 

lifetimes); Cora Peterson et al., Lifetime 

Economic Burden of Intimate Partner 

Violence Among U.S. Adults, 55 Am. J. 

Preventive Med. 433 (2018) (estimating 

the cost of intimate partner violence on 

victims within their lifetimes). The 

Department recognizes that sex 

discrimination in all forms, including 

sex-based harassment and prohibited 

retaliation, may have both qualitative 

and quantitative costs for educational 

institutions, their students and 

employees, applicants for admission 

and employment, their families, and the 

American educational system and 

workforce in general, although the 

Department is unable to quantify 

reductions in these costs resulting from 

the proposed regulations. 

Due to the large number of affected 

recipients (over 24,000, as discussed 

more fully in the discussion of 

Developing the Model (Section 4.B)), the 

variation in likely responses to any 

regulatory change, and the limited 

information available about current 

practices, particularly at the LEA level, 

the Department is not able to precisely 

estimate the likely costs, benefits, and 

other effects of the proposed 

regulations. The Department specifically 

invites comment on data sources that 

would provide comprehensive 

information regarding current practices 

used in providing an educational 

environment free from sex 

discrimination as required by Title IX, 

information regarding the number of 

recipients in each group described in 

the discussion of Developing the Model 

(Section 4.B), and time estimates for the 

activities described in the discussion of 

Cost Estimates (Section 4.C) 

disaggregated by type of recipient. 

Despite these limitations and based on 

the best available evidence as explained 

in the discussion of Establishing a 

Baseline (Section 4.A), the Department 

estimates that the regulations would 

result in a discounted net cost savings 

to recipients of between $9.8 million to 

$28.2 million over ten years. These 

estimated cost savings arise largely from 

the additional flexibility that recipients 

would have to design and implement 

grievance procedures consistent with 

Title IX under proposed § 106.45, and if 

applicable proposed § 106.46. 

The assumptions, data, methodology, 

and other relevant materials, as 

applicable, on which the Department 

relied in developing its estimates are 

described throughout this RIA. 

3. Benefits of the Proposed Regulations 

The Department submits that this 

proposed regulatory action would 

address the potential gaps in coverage 

within the current regulatory framework 

that have been raised by stakeholders 

and observed by the Department, 

including but not limited to areas such 

as the steps a recipient must take with 

respect to sex discrimination, the 

requirements for a recipient’s grievance 

procedures for sex discrimination other 

than sexual harassment, a recipient’s 


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obligations toward students and 

employees who are pregnant or 

experiencing related conditions, the 

scope of coverage related to 

discrimination based on gender identity 

and sexual orientation, and a recipient’s 

obligation to address prohibited 

retaliation. 

Although the Department cannot 

quantify in monetary terms the ancillary 

benefits the proposed regulations may 

provide to those who have been 

subjected to sex discrimination in an 

educational setting, the Department 

recognizes that sex discrimination, 

including sex-based harassment, can 

have profound and long-lasting 

economic costs for students, employees, 

their families, and others who seek to 

participate in the recipient’s education 

program or activity. Being subjected to 

sex discrimination in a recipient’s 

program or activity can affect an 

applicant’s opportunity to enroll in a 

recipient’s education program or 

activity, a student’s ability to learn and 

thrive in and outside of the classroom, 

a prospective or current employee’s 

ability to contribute their talents to the 

recipient’s educational mission, and the 

opportunity of all participants to 

benefit, on an equal basis, from the 

recipient’s education program or 

activity. Likewise, barriers to reporting 

sex discrimination within a recipient’s 

program or activity could undermine 

the recipient’s education environment 

for the entire community. The 

Department believes that the proposed 

regulations would offer a clear and fair 

framework for fulfilling Title IX’s 

prohibition on sex discrimination in any 

education program or activity receiving 

Federal financial assistance. 

The Department’s current view is that 

the proposed regulations would reduce 

the long-term costs associated with 

providing an educational environment 

free from sex discrimination, thereby 

producing a demonstrable benefit for 

students, employees, and others 

participating or attempting to 

participate in the recipient’s education 

program or activity. The Department 

anticipates those benefits would be 

realized based on several proposed 

changes to the current regulations. First, 

the proposed regulations would clarify 

the scope of Title IX’s protection from 

sex discrimination for students and 

others participating or attempting to 

participate in a federally funded 

education program or activity and 

define terms integral to a recipient’s 

obligations under Title IX. Second, the 

proposed regulations would set out the 

contours of a recipient’s obligation to 

take action to address all forms of sex 

discrimination, including requiring a 

recipient’s Title IX Coordinator to 

monitor its education program or 

activity for barriers to reporting sex 

discrimination and requiring the 

recipient to take steps reasonably 

calculated to address those barriers. 

Third, the proposed regulations would 

modify and strengthen existing training 

requirements by specifying the range of 

relevant persons that a recipient must 

train regarding the recipient’s 

obligations under Title IX. Fourth, the 

proposed regulations would revise the 

notification requirements for a recipient, 

ensuring that specific employees notify 

the Title IX Coordinator when they have 

information about conduct that may 

constitute sex discrimination under 

Title IX in the recipient’s education 

program or activity. Fifth, the proposed 

regulations would ensure the effective 

provision and implementation of 

supportive measures, as appropriate, to 

all complainants or respondents and 

clarify that when a recipient determines 

that sex discrimination has occurred, 

the recipient must provide remedies, as 

appropriate, to a complainant or any 

person the recipient identifies as having 

their equal access to the recipient’s 

education program or activity limited or 

denied by sex discrimination, and take 

other appropriate prompt and effective 

steps to ensure that sex discrimination 

does not continue or recur within the 

recipient’s education program or 

activity. Sixth, the proposed regulations 

would revise the requirements for 

grievance procedures to provide for the 

prompt and equitable resolution of 

complaints of any form of sex 

discrimination and allow a recipient the 

ability to adapt its grievance procedures 

to its size, population served, and 

administrative structure while ensuring 

equitable treatment of all parties. 

Finally, the proposed regulations would 

provide clarity on the rights of students 

and employees who are pregnant or 

experiencing related conditions 

including, for example, by requiring a 

recipient to inform students of the 

recipient’s obligations, providing 

students with the option of reasonable 

modifications necessary to prevent 

discrimination and to ensure equal 

access to its education program or 

activity, requiring a recipient to provide 

employees with reasonable break time 

to express breast milk or breastfeed as 

needed and, with respect to both 

students and employees, ensuring the 

availability of an appropriate space for 

lactation. 

The Department expects that the 

proposed regulations, when reviewed in 

their totality, would reduce the 

likelihood of sex discrimination and the 

overall prevalence of sex discrimination 

in recipients’ educational settings. 

Although the Department cannot, at this 

time, entirely quantify the economic 

impacts of these benefits, the 

Department believes that the benefits 

are substantial and far outweigh the 

estimated costs of the proposed 

regulations. 

4. Costs of the Proposed Regulations 

The Department’s analysis reviews 

the Department’s data sources, describes 

the model used for estimating the likely 

costs associated with the proposed 

regulations, and sets out those estimated 

costs. Due to limited quantitative data, 

the Department emphasizes that the 

monetary estimates reflect only the 

likely costs of this regulatory action for 

recipients and do not seek to quantify, 

in monetary terms, the costs of sex 

discrimination, including sex-based 

harassment and prohibited retaliation. 

As described in the Discussion of 

Costs, Benefits, and Transfers (Section 

2), there are limited data quantifying the 

economic impacts of sex discrimination, 

including sex-based harassment, on 

individuals, and studies suggest that 

there is a cost associated with being 

subjected to sex discrimination. See 

Centers for Disease Control and 

Prevention, Fast Facts: Preventing 

Sexual Violence; Peterson et al., 

Lifetime Economic Burden of Intimate 

Partner Violence Among U.S. Adults, 55 

Am. J. Preventive Med. 433. 

Nonetheless, the Department believes 

that the proposed regulations would 

reduce the harms of sex discrimination 

in multiple ways. 

First, proposed § 106.44 would clarify 

a recipient’s obligation to take action to 

end all forms of sex discrimination, 

including sex-based harassment, 

expressly covering more forms of 

conduct than current § 106.44. 

Specifically, the proposed regulations 

would require a recipient to take prompt 

and effective action to end any sex 

discrimination that has occurred in its 

program or activity, prevent its 

recurrence, and remedy its effects, 

regardless of whether a complaint is 

made. Current § 106.44 prescribes only 

how a recipient must respond to 

allegations of sexual harassment in its 

education program or activity when a 

report is made to certain employees; the 

current regulations at § 106.44 are silent 

with respect to a recipient’s obligation 

to respond to other forms of sex 

discrimination. By prescribing the 

actions a recipient must take to operate 

its education program or activity free 

from sex discrimination, the 

Department’s current view is that the 

proposed changes would aid the 


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22Claire McCaskill, S. Subcomm. on Financial 

Contracting Oversight—Majority Staff, Sexual 

Violence on Campus, 113th Cong. (2014), https://

www.hsgac.senate.gov/imo/media/doc/2014-07-09 

Sexual Violence on Campus Survey Report with 

Appendix.pdf. 

recipient in reducing—and ultimately 

eliminating— all forms of sex 

discrimination in its education program 

or activity. Any initial, short-term costs 

associated with the proposed change are 

expected to be both minimal and offset 

in the longer term by reduced incidence 

of sex discrimination. The Department 

submits that the proposed requirements 

would increase recipient responsiveness 

to all reports and complaints of sex 

discrimination and are also likely to 

deter or prevent some incidents of sexbased harassment and its associated 

harms; however, the Department cannot 

quantify the potential reduction in 

incidents of sex-based harassment or 

other forms of discrimination. 

Second, proposed § 106.44(g) would 

make clear that upon being notified of 

conduct that may constitute sex 

discrimination under Title IX, including 

sex-based harassment and prohibited 

retaliation, a Title IX Coordinator must 

offer supportive measures, as 

appropriate, to the complainant or 

respondent to the extent necessary to 

restore or preserve that party’s access to 

the recipient’s education program or 

activity. Proposed § 106.44(g) would 

also clarify that for allegations of sex 

discrimination other than sex-based 

harassment or retaliation, a recipient’s 

provision of supportive measures would 

not require the recipient, its employee, 

or other person authorized to provide 

aid, benefit, or service on the recipient’s 

behalf to alter the conduct that is 

alleged to be sex discrimination for the 

purpose of providing a supportive 

measure. As the proposed requirement 

regarding supportive measures would 

cover prohibited retaliation as well as 

other forms of sex discrimination not 

currently addressed by the current 

regulations, the Department recognizes 

that the number of incidents in which 

the parties would be provided 

supportive measures would likely 

increase compared to the current 

regulations, as would any related costs 

in providing those supportive measures. 

The Department estimates that this 

provision would incur a negligible 

monetary cost per incident and that the 

cumulative annual costs to the recipient 

would therefore be at a de minimis 

level. The Department also anticipates 

that these costs will either be reduced 

in the long-term or be offset by other 

savings. Those savings may come from 

other proposed changes (e.g., changes to 

the grievance procedure requirements) 

or from the anticipated reduction in 

instances of sex discrimination. 

The Department expects that the 

proposed regulations would increase the 

use of a recipient’s grievance procedures 

by students and others, thereby 

resulting in an increase in the prompt 

and equitable resolution of complaints 

of sex discrimination in a recipient’s 

program or activity. If this assumption 

is correct, it is also reasonable to believe 

that the proposed regulations may 

reduce the prevalence of sex 

discrimination, including sex-based 

harassment, as well as the adverse 

academic, social, emotional, and 

economic effects of sex discrimination 

on individuals and recipient 

communities. Again, the Department 

recognizes that it does not currently 

have data to form a reliable estimate of 

these effects as related to associated 

costs and requests comment on the 

extent to which implementation costs 

would be offset by such effects and how 

both the costs and long-term benefits 

may be reliably estimated, including 

any evidence that may be used to inform 

such estimates. 

4.A. Establishing a Baseline 

4.A.1. Data Sources 

As discussed in the preamble to the 

Department’s 2020 amendments to its 

Title IX regulations, the primary 

challenge associated with estimating the 

effects of any new regulatory action 

under Title IX is the lack of 

comprehensive data on the actions 

recipients are taking to comply with 

their current obligations. As part of the 

comment process on the 2020 

amendments, the Department requested 

information about data sources that 

would provide this information and 

which the Department could use to 

inform its estimates. The Department 

did not receive such sources at that time 

and again requests comment to help 

identify high quality data sources on the 

actions currently being taken by 

recipients to comply with Title IX. 

In the absence of a recent, high 

quality, and comprehensive data source, 

the Department relies, as it did for the 

2020 amendments, on a 2014 report 

titled Sexual Violence on Campus (2014 

Senate Subcommittee Report) issued by 

the U.S. Senate Subcommittee on 

Financial and Contracting Oversight.22

The report 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; 

however, this report did not address the 

prevalence of other forms of sex 

discrimination, including 

discrimination on the basis of sex 

stereotypes, sex characteristics, 

pregnancy or related conditions, sexual 

orientation, and gender identity. As 

described in the discussion of Estimates 

of Annual Investigations of Sexual 

Harassment Prior to the 2020 

Amendments to the Title IX Regulations 

(Section 4.A.2), the Department adjusted 

these data to account for these 

exclusions. For LEAs, the Department 

continues to rely on the most recent 

publicly available data from OCR’s Civil 

Rights Data Collection (CRDC) regarding 

sexual harassment incidents to estimate 

the annual number of investigations in 

those settings. 

4.A.2. Estimates of Annual 

Investigations of Sexual Harassment 

Prior to the 2020 Amendments to the 

Title IX Regulations 

To estimate the likely impact of the 

proposed regulations, the Department 

must consider the policies and practices 

of recipients in responding to sexual 

harassment prior to the promulgation of 

the 2020 amendments. This 

consideration is necessary because the 

2020 amendments specified in the 

Department’s Title IX regulations, for 

the first time, the definition of ‘‘sexual 

harassment’’ and the obligation of a 

recipient to respond to sexual 

harassment under Title IX. The 

proposed regulations would require a 

recipient to take prompt and effective 

steps to ensure that sex discrimination, 

including sex-based harassment that 

creates a hostile environment based on 

sex, does not continue or recur in the 

recipient’s education program or 

activity. This proposed use of a hostile 

environment standard encompasses 

conduct that was addressed in 

enforcement practice prior to the 

current regulations; as a result, data 

regarding recipients’ actions regarding 

sexual harassment prior to the 2020 

amendments would assist in estimating 

the likely effects of the proposed 

regulations. Note that the Department is 

not assuming that information relating 

to recipient behavior prior to the 

effective date of the 2020 amendments 

would impact the baseline (that is, 

behavior and burdens in the absence of 

the proposed regulations), but rather, 

that a number of the proposed changes 

would remove some of the restrictions 

on recipient responses to sexual 

harassment imposed by the 2020 

amendments. However, the Department 

notes that the proposed regulations 

would create different requirements 

from those established in its 

enforcement practices prior to the 2020 

amendments. As a result, recipient 

behavior prior to the effective date of 


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23See 85 FR 30026, 30565 (May 19, 2020). 

24U.S. Dep’t of Educ., Office for Civil Rights, 

Civil Rights Data Collection for the 2017–2018 

School Year, https://ocrdata.ed.gov/assets/ocr/ 

docs/2017-18-crdc-data.zip (open ‘‘2017–18 Public 

Use Files’’; then select ‘‘Data’’; then select ‘‘SCH’’; 

then select ‘‘CRDC’’; then select ‘‘CSV’’; then select 

the ‘‘Harassment and Bullying.csv’’ file) (last visited 

June 21, 2022). 

the 2020 amendments, in the 

Department’s view, provides some, but 

not complete, insight into what 

recipient behavior would be if the 

proposed regulations were promulgated. 

In the 2020 amendments, the 

Department assumed that the number of 

incidents reported under the Clery Act 

could be used as an instrument to 

estimate total incidents of sexual 

harassment, including those not 

captured in the 2014 Senate 

Subcommittee Report; as a result, the 

Department estimated that, prior to the 

issuance of those amendments, IHEs 

conducted approximately 5.7 Title IX 

investigations of sexual harassment per 

year.23 The Department based this 

estimate on an analysis of the 2014 

Senate Subcommittee Report and data 

submitted by IHEs under the Clery Act. 

At the LEA level, the Department does 

not have publicly reported data on the 

average number of investigations of 

sexual harassment occurring each year. 

The most recent publicly available data 

from the CRDC indicates an average of 

3.23 incidents of sexual harassment per 

LEA per year.24 The Department, 

therefore, assumes that this was the 

number of investigations of sexual 

harassment occurring, on average, each 

year in each LEA. 

4.A.3. Lack of Data Following the 

Promulgation of the 2020 Amendments 

The Department has not been able to 

identify reliable data sources about 

actions taken by recipients following the 

promulgation of the 2020 amendments. 

As a result, it is difficult for the 

Department to estimate the number of 

investigations that have occurred since 

issuance of the 2020 amendments or the 

number that would likely occur in later 

years in the absence of the Department’s 

proposed regulations. This absence of 

data means the Department could not 

construct a baseline from which to 

estimate the likely effects of the 

proposed regulations. Instead, the 

Department has a reasonable framework 

for understanding the likely actions 

recipients would take to comply with 

the proposed regulations as well as a 

benchmark for generating baseline 

estimates of recipients’ actions 

following the promulgation of the 2020 

amendments, based on anecdotal 

information from experts in the field as 

well as feedback from the June 2021 

Title IX Public Hearing, listening 

sessions, and the meetings held under 

Executive Order 12866 in 2022. These 

sources provide some reasonably 

reliable information about actions taken 

by recipients to comply with Title IX 

prior to the promulgation of the 2020 

amendments. However, in using this 

anecdotal information, the Department 

is mindful that the 2020 amendments 

introduced requirements and definitions 

not previously promulgated and thus 

actions prior to the 2020 amendments 

will not capture all aspects of a 

recipient’s actions following the 

issuance of the 2020 regulations. 

The Department is not attempting to 

estimate the degree of sex 

discrimination at recipient institutions. 

Rather, the Department is attempting to 

estimate the number of times recipients 

will be required to engage in particular 

activities, such as conducting 

investigations or providing supportive 

measures. For instance, in the preamble 

to the 2020 amendments, the 

Department estimated that 

approximately 90 percent of LEAs and 

50 percent of IHEs would reduce the 

number of investigations conducted 

each year. The Department estimated 

that, on average, these LEAs would 

conduct 1.29 fewer investigations per 

year under the 2020 amendments. The 

Department also estimated that the 

annual average reduction in 

investigations would be ¥2.84 for those 

IHEs that reduced their number of 

investigations. Since making those 

assumptions in the 2020 amendments, 

OCR has received feedback from a 

variety of stakeholders, through the June 

2021 Title IX Public Hearing, in 

listening sessions, and meetings held in 

2022 under Executive Order 12866, that 

the actual reduction may have been 

higher due to the deterrent effect of the 

perceived burden associated with the 

current sexual harassment grievance 

procedure requirements on a 

complainant’s willingness to report 

sexual harassment or participate in a 

process to resolve a formal complaint of 

sexual harassment. Further, based on 

anecdotal reports, the Department 

understands that many recipients that 

experienced a reduction in the number 

of sexual harassment complaints filed at 

their respective institutions subsequent 

to the 2020 amendments shifted their 

resolution processes away from what 

would have been a proceeding under 

current § 106.45 to an alternative 

disciplinary process, such as a general 

student conduct process outside of the 

scope of Title IX. Although this 

information from recipients and others 

confirms the Department’s 2020 

estimate related to the decrease in the 

number of investigations, it is anecdotal 

and, as such, does not provide the 

Department with sufficient evidence on 

which to revise its 2020 estimate. 

Further, the Department recognizes that 

the COVID–19 pandemic resulted in 

many LEAs and IHEs operating 

remotely, which may have reduced the 

incidence or reporting of sexual 

harassment, the willingness of students 

and others to initiate a recipient’s 

grievance procedures in response to 

alleged sexual harassment, or both. 

Again, however, the Department has not 

identified high-quality research studies 

to inform its analysis. Therefore, the 

Department continues to assume that 

the estimates of the 2020 amendments 

represent the baseline level of a 

recipient’s actions to comply with Title 

IX in future years when considered in 

the absence of the proposed regulations. 

The Department invites comment on 

whether these estimates are reasonable 

and whether high quality data sources 

or studies exist regarding recipients’ 

actions in response to the 2020 

amendments. 

Notwithstanding the estimates used 

for the 2020 amendments, for recipients 

that saw reductions in the number of 

investigations conducted each year 

under the 2020 amendments, the 

Department estimates that 90 percent of 

alleged incidents that were previously 

classified as sexual harassment under 

subregulatory guidance documents, but 

did not meet the definition of ‘‘sexual 

harassment’’ under the current 

regulations, were handled by a recipient 

in other disciplinary processes. The 

Department invites comment on this 

estimate. 

4.B. Developing the Model 

After the effective date of the 2020 

amendments to its Title IX regulations, 

the Department assumes that recipients 

complied with the regulatory 

requirements and fell into one of three 

groups in how they handled complaints 

of sexual harassment that fell outside 

the scope of the current § 106.45: 

• Group A: Recipients did not adopt 

a new process to handle complaints 

falling outside the current § 106.45 

grievance procedures; 

• Group B: Recipients handled 

complaints falling outside the current 

§ 106.45 regulations through a different 

grievance process; 

• Group C: Recipients handled 

complaints falling outside the current 

§ 106.45 regulations through a 

resolution process similar to current 

§ 106.45. 


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25Other recipients include entities other than 

LEAs and IHEs which operate education programs 

or activities supported by the Department and may 

include libraries, museums, and cultural centers, 

among other types of organizations. This group 

represents an exceptionally small number of LEAs 

and IHEs, many of which are likely to be very small 

in size (e.g., an LEA of fewer than 100 students or 

an IHE of fewer than 15 students). 

26This is explained in greater detail in the 

discussions of Pregnancy and Parental Status 

(Section III) and Title IX’s Coverage of All Forms 

of Sex Discrimination (Section IV). 

27As part of the 2017–2018 CRDC, schools 

reported 44,864 allegations of harassment and 

bullying on the basis of sex. That same year, they 

reported 18,414 allegations of harassment and 

bullying on the basis of sexual orientation, or 

approximately 33 percent of the number of 

allegations of harassment and bullying on the basis 

of sex. See U.S. Dep’t of Educ., Office for Civil 

Rights, Civil Rights Data Collection for the 2017– 

2018 School Year, https://ocrdata.ed.gov/assets/ 

ocr/docs/2017–18-crdc-data.zip (open ‘‘2017–18 

Public Use Files’’; then select ‘‘Data’’; then select 

‘‘SCH’’; then select ‘‘CRDC’’; then select ‘‘CSV’’; 

then select the ‘‘Harassment and Bullying.csv’’ file) 

(last visited June 21, 2022). The sum of the 

allegations of harassment or bullying on the basis 

of sexual orientation (18,414) is found in Column 

L of harassment and bullying.csv in the 2017–2018 

CRDC data by excluding cells with reserve codes. 

The Department believes that 33 percent would 

represent a very high upper bound of the number 

of additional investigations conducted annually by 

recipients based on the inclusion of sexual 

orientation and gender identity in the proposed 

regulations. OCR has long recognized that ‘‘[w]hen 

students are subjected to harassment on the basis 

of their LGBT status, they may also. . . be subjected 

to forms of sex discrimination prohibited under 

Title IX. The fact that the harassment includes antiLGBT comments or is partly based on the target’s 

actual or perceived sexual orientation does not 

relieve a school of its obligation under Title IX to 

investigate and remedy overlapping sexual 

harassment or gender-based harassment.’’ U.S. 

The Department has not assumed a 

recipient would behave differently 

based on its public or private status. 

Further the Department does not 

distinguish cost structures or burden 

hours based on public or private status, 

but instead applied an average across all 

IHEs in each analytical group. The 

Department also assumes recipients in 

all three groups generally complied with 

the 2020 amendments to the Title IX 

regulations. To the extent that a 

recipient did not comply with some or 

all of those amendments, the following 

estimates may overestimate or 

underestimate actual costs of the 

proposed regulations for that recipient. 

To populate each of the three groups, 

the Department is using the same 

disbursement as was used in the 2020 

rulemaking analysis. That is, the 

Department assumes that approximately 

5 percent of LEAs, 5 percent of IHEs, 

and 90 percent of other recipients 25 fall 

into Group A. Generally, the 

Department does not anticipate that 

LEAs or IHEs, which usually have 

existing disciplinary processes and a 

history of compliance with Title IX, 

would adopt the minimal framework of 

Group A. In contrast, other recipients, as 

defined in footnote 25, are less likely to 

have alternative disciplinary processes 

and the Department assumes that it is 

unlikely that these other recipients 

would have established alternative 

processes as a result of the 2020 

amendments. The Department assumes 

that a recipient in this group, in 

response to the proposed regulations, 

would experience an increase in the 

number of incidents investigated each 

year but would also be likely to revise 

its grievance procedures to fit the 

context of its educational environment 

under proposed § 106.45. As a result, 

although the number of investigations 

may increase, each investigation and 

adjudication would be less burdensome 

relative to investigations and 

adjudications under the 2020 

amendments, due to the ability of a 

recipient under the proposed 

regulations to adopt procedures 

consistent with Title IX that are prompt, 

equitable, and specifically adapted to its 

unique circumstances, including its 

setting, size, and administrative 

structure. Recipients in this group 

would see burden increases associated 

with necessary revision of procedures 

and recordkeeping. 

The Department assumes that 

approximately 90 percent of LEAs, 50 

percent of IHEs, and 5 percent of other 

recipients fall into Group B. The 

Department believes that a recipient in 

this group generally experienced some 

reduction in the number of sexual 

harassment investigations conducted 

under the grievance procedure 

requirements of the 2020 amendments, 

which would have been initiated only 

by a formal complaint of sexual 

harassment and, based on anecdotal 

evidence, would have also addressed at 

least some incidents that are no longer 

covered under the current grievance 

procedure requirements by using an 

alternative disciplinary process. In the 

preamble to the 2020 amendments, the 

Department did not account for such a 

shift in its estimates; however, the 

current model assumes such behavior as 

part of the baseline. The Department 

assumes that, in response to the 

proposed regulations, Group B would 

see an increase in the total number of 

investigations under Title IX due to the 

proposed application of regulatory 

grievance procedures to more than 

sexual harassment complaints. It is 

assumed that Group B would benefit 

from some of the additional flexibilities 

offered under the proposed regulations, 

such as having the option between 

providing equitable access to the 

relevant and not otherwise 

impermissible evidence to the parties or 

providing them with a written 

investigative report that accurately 

summarizes the evidence under 

proposed § 106.46. The Department also 

believes that a recipient in this group 

would likely retain many aspects of its 

current grievance procedures in 

response to the proposed regulations. As 

a result, the Department estimates that 

the increase in the number of 

investigations for Group B under the 

proposed regulations would be smaller 

than the increase in the number of 

investigations for Group A because of 

the number of investigations and 

adjudications already occurring under 

the auspices of an alternative student or 

employee conduct process. It is 

estimated that recipients in Group B 

would see burden increases associated 

with necessary revision of procedures 

and recordkeeping under the proposed 

regulations. 

The Department assumes that 

approximately 5 percent of LEAs, 45 

percent of IHEs, and 5 percent of other 

recipients fall into Group C. A recipient 

in this group is assumed to use the 

grievance process established under the 

2020 amendments to also resolve 

conduct that was not required to be 

resolved under Title IX. As a result, it 

is estimated that a recipient in Group C 

would not see a large increase in the 

number of investigations conducted 

annually or a meaningful change in the 

burden per investigation. However, a 

recipient in Group C, like those in the 

other two groups, may see burden 

increases associated with necessary 

revision of procedures and 

recordkeeping. 

For recipients in both Groups A and 

B, the Department assumes that the 

proposed regulations addressing sex 

discrimination based on sex stereotypes, 

sex characteristics, pregnancy or related 

conditions, sexual orientation, and 

gender identity, would result in an 

increase in the number of investigations 

conducted annually above the average 

encountered prior to the promulgation 

of the 2020 amendments. Although the 

Department has previously addressed a 

recipient’s obligation to address these 

forms of discrimination in OCR’s prior 

guidance, including harassment on 

these bases, the Department believes 

that at least some recipients may not 

have fully addressed these incidents 

absent a regulatory requirement.26 The 

Department assumes that the proposed 

inclusion of these areas in the 

Department’s Title IX regulations may 

result in a 10 percent increase in the 

number of investigations conducted 

annually.27 The Department seeks 


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Dep’t of Educ., Office for Civil Rights, Dear 

Colleague Letter: Harassment and Bullying at 8 

(Oct. 26, 2010), https://www2.ed.gov/about/offices/ 

list/ocr/letters/colleague-201010.pdf. The 

Department believes it would be extremely unlikely 

that the proposed regulations would result in such 

a large increase in the number of investigations 

occurring annually. First, such an assumption 

would imply that no allegations of harassment and 

bullying on the basis of sexual orientation were also 

reported as allegations of harassment and bullying 

on the basis of sex, which the Department believes 

is highly unlikely because the CRDC instructs 

schools to count a single harassment allegation 

under multiple categories if it meets the definition 

of more than one category. In addition, such an 

assumption would imply that no allegations of 

harassment and bullying on the basis of sexual 

orientation are currently investigated under a 

recipient’s Title IX procedures, which the 

Department also believes is highly unlikely 

because, as described in the discussion of proposed 

§ 106.10, harassment based on sexual orientation 

can be difficult to distinguish from other forms of 

harassment based on sex. However, the Department 

also believes it is unreasonable to assume that the 

express inclusion of sexual orientation and gender 

identity in the proposed regulations would have no 

effect on the number of investigations occurring 

annually. Based on the analysis set out here, the 

Department estimates that the additional clarity 

provided by the proposed regulations would result 

in a 10 percent increase in the number of 

investigations occurring annually. 

28U.S. Dep’t of Labor, Bureau of Labor Statistics, 

May 2021 National Industry-Specific Occupational 

Employment and Wage Estimates: Sector 61— 

Educational Services, https://www.bls.gov/oes/ 

current/naics2_61.htm (last visited May 19, 2022). 

29U.S. Dep’t of Educ., Inst. of Educ. Sciences, 

Nat’l Ctr. for Educ. Statistics, Elementary/ 

Secondary Information System, http://nces.ed.gov/ 

ccd/elsi/ (last visited May 19, 2022); U.S. Dep’t of 

Educ., Inst. of Educ. Sciences, Nat’l Ctr. for Educ. 

Statistics, IPEDS Data Center, https://nces.ed.gov/ 

ipeds/datacenter/InstitutionByName.aspx (last 

visited May 19, 2022). 

comment on the assumptions regarding 

the categorization of affected entities 

and the extent to which these 

assumptions are reasonable. 

Although the Department notes that 

proposed § 106.45(a)(2) would allow a 

third party participating or attempting 

to participate in a recipient’s education 

program or activity to make a complaint 

of sex discrimination, the Department 

assumes this proposed change would 

result in a minimal increase in a 

recipient’s overall number of complaints 

of sex discrimination. Specifically, the 

Department assumes that third-party 

complaints are somewhat uncommon 

(and would remain so), but that these 

complaints serve to inform recipients of 

at least some incidents of sex 

discrimination. In the case of a Group A 

recipient, the Department assumes that 

the recipient’s treatment of information 

about conduct that may constitute 

discrimination received from a third 

party would solely depend on whether 

the third party made a complaint that 

initiated the recipient’s grievance 

procedures. If the complainant declined 

or was not permitted to make a 

complaint under the recipient’s policy, 

the Department assumes that the Group 

A recipient would not take action to 

address the information. The 

Department assumes that in contrast to 

Group A recipients, Group B and Group 

C recipients would take steps to address 

a third-party allegation of sex 

discrimination—whether by way of 

their Title IX process, alternative 

disciplinary process, or other process 

depending on the circumstances and 

nature of the report. Thus, although the 

proposed regulations may change the 

process under which such information 

is addressed, the inclusion of thirdparty complaints would not 

meaningfully increase the overall 

number of complaints processed 

annually across recipients. The 

Department welcomes comment on the 

extent to which third party complaints 

might increase the average number of 

investigations occurring annually above 

those estimated herein. 

Unless otherwise specified, the 

Department’s model uses mean hourly 

wages for personnel employed in the 

education sector as reported by the 

Bureau of Labor Statistics 28 and a 

lading factor of 2.0 to account for the 

employer cost of employee 

compensation and indirect costs (e.g., 

physical space, equipment, technology 

costs). In addition, throughout this RIA, 

some described calculations have 

results that are fractions (e.g., the 

described analysis generates an estimate 

of 4.79655 incidents at LEAs in which 

supportive measures are offered). To 

improve readability, the Department 

presents these results rounded to two 

decimal places in the text (e.g., 4.80), 

but retains the unrounded value for 

purposes of its underlying calculations. 

LEAs, IHEs, and other recipients 

would be subject to the proposed 

regulations. Estimates regarding the 

number of affected LEAs and IHEs are 

based on the most recent data available 

from the National Center for Education 

Statistics 29 regarding the number of 

LEAs nationwide with operational 

schools and the number of IHEs 

participating in programs under Title IV 

of the HEA (such as Direct Loans, 

Federal Work Study, and Pell grants). 

The estimate regarding the number of 

other institutions is based on an internal 

review of the Department’s grant 

portfolio. 

• LEAs: It is assumed that 18,131 

LEAs would be impacted by the 

proposed regulations. Among affected 

LEAs, total enrollment during the 2020– 

2021 school year ranged from fewer 

than 10 students to more than 460,000 

students. 

• IHEs: It is assumed that 6,054 IHEs 

would be impacted by the proposed 

regulations. Among IHEs, recipients 

range from small, private, professional 

schools with fewer than 5 students 

enrolled in the Fall of 2020 to large, 

public research universities with 

enrollments of more than 85,000 

students and institutions operating 

mostly virtually with enrollments in 

excess of 145,000 students. 

• Others: It is assumed that 600 other 

recipients would be impacted by the 

proposed regulations. Other recipients 

include both small Tribal cultural 

centers located in remote rural areas and 

some of the largest and most wellfunded arts centers and museums in the 

world. They also include State 

education agencies, State vocational 

rehabilitation agencies, local libraries, 

small parent organizations, and a range 

of other entities that receive Federal 

grant funds from the Department. 

It is important to note that within 

each of these categories of recipients, 

there is wide variation in the number of 

students served, number of employees, 

administrative structure, and annual 

revenue. This wide variation has made 

estimating the effects of the proposed 

regulations challenging, and the 

Department notes that the estimates 

provided are intended to reflect the 

average burden across the full spectrum 

of affected entities. As a result, 

estimates may be lower than the actual 

burden realized by, for example, larger 

recipients or recipients with more 

complex administrative structures, and 

larger than those actually realized by 

smaller recipients with less complex 

administrative structures. The 

Department notes that the estimates in 

the discussion of Cost Estimates 

(Section 4.C) were developed based on 

the RIA from the 2020 amendments, as 

informed by comments in response to 

the 2018 NPRM, as well as information 

received by OCR through the June 2021 

Title IX Public Hearing, in listening 

sessions, and during the meetings held 

under Executive Order 12866 in 2022. 

The estimates were further informed by 

the input of internal subject matter 

experts. The Department invites 

comment on all estimates provided 

herein to ensure that they accurately 

reflect realistic assumptions about 

average burdens the proposed 

regulations would impose on the full 

range of affected entities. 

4.C. Cost Estimates 

Review of Regulations and Policy 

Revisions 

The Department assumes that all 

recipients would need to spend time 


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30Note that time burden estimates for this activity 

are unchanged from those used in the 2020 

amendments. 

reading and understanding the proposed 

regulations. The time necessary to 

complete this task across all recipients 

would likely vary widely, with some 

recipients opting for a close and timeconsuming review of both the 

regulations and preamble, while others 

would rely on shorter third-party 

summaries targeted for specific 

audiences resulting in a less 

burdensome and expedient process. The 

Department has developed on-average 

assumptions based on feedback 

provided by stakeholders in listening 

sessions and, as noted in the discussion 

of Developing the Model (Section 4.B), 

invites comment on these estimates. On 

average, the Department assumes that it 

would take 4 hours each for a Title IX 

Coordinator ($100.36/hour) and lawyer 

($148.76/hour) to complete this task. In 

total, the Department estimates that 

reading and understanding the proposed 

regulations would have a total one-time 

cost of approximately $24,697,760 in 

Year 1. 

The Department assumes that all 

recipients would need to make revisions 

to their grievance procedures as a result 

of the proposed regulations. At each 

recipient institution, the Department 

assumes that these revisions would take, 

on average, 6 hours for a Title IX 

Coordinator, 2 hours for an 

administrator ($100.36/hour), and 6 

hours for a lawyer. In total, the 

Department estimates that revising 

grievance procedures would have a onetime cost of $42,021,480 in Year 1. This 

estimate includes the costs of a 

recipient’s revisions to its grievance 

procedures associated with the 

Department’s proposal to require 

recipients to comply with its proposed 

revisions to § 106.45 rather than current 

§ 106.45, and for IHEs to also comply 

with proposed § 106.46. 

The proposed regulations would 

provide substantial clarity on recipient 

obligations under Title IX. As such, 

some recipients may choose to engage in 

supplemental review of their existing 

policies to determine compliance and to 

make changes, if needed, in addition to 

the proposed changes that may impact 

a recipient’s grievance procedures. The 

Department assumes that these 

estimates would be sufficient to account 

for such behavior but seeks comment on 

the proportion of recipients, 

disaggregated by type of entity if 

appropriate, that would be likely to 

engage in supplemental policy 

compliance reviews as a result of the 

proposed regulations, as well as the 

likely burden associated with such 

reviews. 

Although the 2020 amendments 

required a recipient to post 

nondiscrimination statements on the 

recipient’s website, the Department 

assumes that approximately 40 percent 

of LEAs, 20 percent of IHEs, and 50 

percent of other institutions would 

experience more than de minimis 

burden to modify their existing 

statements to comply with the 

requirements of the notice of 

nondiscrimination under proposed 

§ 106.8(c). These estimates are based, in 

part, on how recently the 2020 

amendments went into effect, potential 

impacts from the COVID–19 pandemic 

which likely delayed at least some 

recipients from complying with the 

requirement in the 2020 amendments, 

and any updates to existing content that 

may be necessary due to the proposed 

regulations. For a recipient that has not 

yet completed this requirement, the 

Department assumes doing so would 

take 1 hour from the Title IX 

Coordinator and 2 hours from a web 

developer ($68.48/hour).30 In total, the 

Department estimates that posting 

nondiscrimination statements on 

websites would have a one-time cost of 

$2,081,380 in Year 1. 

The Department requests comment on 

these estimates. 

Revisions to Training 

The proposed regulations would 

likely impact the annual training 

provided to Title IX Coordinators and 

designees, investigators, 

decisionmakers, and other persons who 

are responsible for implementing a 

recipient’s grievance procedures or have 

the authority to modify or terminate 

supportive measures. For individuals 

other than the Title IX Coordinator and 

designees, the Department believes it is 

unlikely that the length of training 

would have to change, and therefore 

believes that any associated burden for 

these individuals would not change as 

a result of the proposed regulations. The 

Department assumes that Title IX 

Coordinators would revise existing 

training materials to incorporate any 

new content and adjust the remaining 

parts of the training accordingly to 

avoid extending the length and cost of 

administering the training. 

Although the Department notes that 

the proposed regulations would require 

all employees to be trained on the scope 

of conduct that constitutes sex 

discrimination, including the definition 

of ‘‘sex-based harassment,’’ and all 

applicable notification requirements 

under proposed §§ 106.40(b)(2) and 

106.44, the Department does not believe 

that this requirement would 

meaningfully change the overall annual 

burden related to training requirements 

for recipient employees. As an initial 

matter, the Department assumes that all 

employees of recipients receive required 

trainings each year and that recipients 

generally strive to limit the total amount 

of time employees spend in these 

trainings. The Department also assumes 

that recipients will not budget 

additional funds in response to the 

modification of the current training 

requirement, and thus, will not 

experience an increased monetary 

burden due to this proposed change. 

The Department believes that recipients 

make purposeful decisions about the 

amount of time dedicated to each 

required training and would increase or 

decrease the time required for particular 

training sessions, as needed, to ensure 

that all required topics are covered 

within a set amount of time. As a result, 

the Department assumes that the 

proposed regulations would ultimately 

have a de minimis effect on the time 

burden for employees associated with 

training, and requests comment on this 

assumption. 

Across all recipients, the Department 

estimates that updating training 

materials for individuals other than the 

Title IX Coordinators would take 4 

hours for the Title IX Coordinator for a 

total one-time cost of $9,949,690. In 

subsequent years, the Department 

assumes that the burden associated with 

the annual updating of training 

materials would be about the same as it 

would be in the absence of the proposed 

regulations. 

In contrast, the Department 

anticipates that the proposed 

regulations would require more 

extensive, longer training for Title IX 

Coordinators compared to the current 

regulations. As an initial matter, the 

Department assumes that a recipient 

would employ similar means by which 

to train its Title IX Coordinator in 

response to the current regulations as 

the recipient employed in response to 

the promulgation of the 2020 

amendments; however, the Department 

acknowledges that the development and 

delivery method of the training varies 

among recipients. For example, the 

Department assumes that some 

recipients hired outside counsel, law 

firms, and professional organizations to 

train their Title IX Coordinators while 

other recipients relied upon internal 

stakeholders such as the recipient’s 

general counsel. In its tentative view, 

the Department has no reason to believe 

that a recipient would deviate from its 

current source of training because of the 

proposed regulations. 


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31This flat cost is intended to capture any nonstaff time costs associated with the provision of 

supportive measures, including but not limited to 

fees for services covered by the recipient (such as 

for counseling) or foregone fees not collected by the 

recipient (such as a waiver of fees for housing 

reassignment). Note that, due to the wide variety of 

supportive measures that may be offered by 

recipients and the need to tailor any such measures 

to the specific circumstances of a particular 

individual, more precise estimation of the costs 

associated with the provision of supportive 

measures is not practicable. 

The Department assumes that such 

trainings would be 2 hours longer for 

each Title IX Coordinator in Year 1, and 

1 hour longer in future years. In total, 

the Department estimates that the 

training of Title IX Coordinators would 

have a cost of $4,974,850 in Year 1 and 

$2,487,423 in each succeeding year. 

Costs will also be incurred to update 

training materials for Title IX 

Coordinators. These materials may be 

developed in a variety of ways, 

depending on the preferences of 

individual recipients. These materials 

will be more comprehensive in nature, 

but individual entities may develop 

training materials that will be used 

across many recipients. As a result, the 

Department assumes training 

development costs for Title IX 

Coordinators equal to those estimated 

for other individuals, equaling a onetime cost of $9,949,690. The Department 

seeks comment on assumptions related 

to the effects of the proposed regulations 

on training. 

Supportive Measures 

With respect to the provision of 

supportive measures, the Department’s 

proposed regulations would require a 

recipient to offer supportive measures, 

as appropriate, to complainants and 

respondents who may have experienced 

sex discrimination, including sex-based 

harassment and prohibited retaliation. 

Although the current regulations only 

require a recipient to offer supportive 

measures, as appropriate, to 

complainants and respondents in 

response to information regarding 

sexual harassment, nothing in the 

current regulations would prohibit a 

recipient from also offering supportive 

measures to address other types of sex 

discrimination. The Department 

assumes that prohibited retaliation 

would most likely occur following a 

report or complaint of sex-based 

harassment (as opposed to other forms 

of sex discrimination) and that, in such 

instances, the types of supportive 

measures offered following the initial 

report or complaint of sex-based 

harassment would be largely 

indistinguishable from the types of 

supportive measures offered in response 

to prohibited retaliation and would not 

result in additional measurable cost to 

the recipient. Further, the Department 

submits that it is unlikely that there 

would be an increase in the number of 

individuals seeking and accepting 

supportive measures solely to address 

the impacts of ‘‘prohibited retaliation’’ 

as defined under proposed § 106.71. 

The Department notes that the 

proposed regulations state that for 

allegations of sex discrimination other 

than sex-based harassment or prohibited 

retaliation, the recipient would not be 

required to alter the conduct that is 

alleged to be sex discrimination for the 

purpose of providing a supportive 

measure. The Department expects that 

there would be little impact on 

anticipated costs to recipients 

associated with the proposed provision 

requiring supportive measures to be 

offered to complainants and 

respondents who may have experienced 

other forms of sex discrimination. The 

Department’s assumption is based on 

the belief that such information would 

likely fall into one of two categories. 

The first category consists of 

information a recipient would receive 

about sex discrimination related to 

unequal access to resources or facilities 

(e.g., reports that women’s sports teams 

have lower quality practice facilities 

than men’s teams or men’s locker rooms 

are not maintained at the same level as 

women’s locker rooms). In these 

instances, the Department anticipates 

that there are few, if any, appropriate 

supportive measures beyond 

eliminating the source of sex 

discrimination (e.g., improving the 

quality of women’s practice facilities or 

the men’s locker rooms). Although it is 

the Department’s current belief that this 

type of information would likely result 

in increased costs associated with the 

provision of supportive measures, there 

may be additional costs incurred when 

addressing these types of situations that 

are unrelated to providing supportive 

measures. 

Likewise, the Department anticipates 

that complaints of and information 

about sex discrimination in educational 

settings (e.g., a teaching assistant 

treating an individual student 

differently because of sex) would be the 

most likely reason for a request for 

supportive measures. In these instances, 

appropriate supportive measures would 

likely be academic in nature and have 

relatively minor costs (e.g., allowing a 

student to attend a section of the same 

class taught by a different teaching 

assistant after a complaint of sex 

discrimination has been made and is 

proceeding; counseling the teacher’s 

aide). 

For supportive measures related to 

sex-based harassment, the Department 

assumes that the proposed regulations 

would have a negligible effect on the 

burden per incident. Specifically, as the 

variety of supportive measures and need 

to adapt those measures to a particular 

situation makes estimating the full 

spectrum of costs impracticable, the 

Department used the cost of more 

commonly provided supportive 

measures when calculating cost 

estimates. Moreover, as it is likely that 

many of the supportive measures 

available to individuals are already 

provided by recipients, the Department 

expects that the actual costs of each type 

of measure would be de minimis; 

however, the Department has added a 

flat cost of $250 per incident to account 

for any potential costs. The Department 

cannot provide greater specificity 

regarding specific measures given the 

wide range of possible measures that 

could be offered, the varying 

administrative structures of recipients, 

and the need to align any supportive 

measures to the specific facts of each 

case. 

At the LEA level, the Department 

assumes that, per incident, the 

provision of supportive measures 

currently takes 2 hours from a Title IX 

Coordinator and 2 hours from an 

administrative assistant ($61.06/hour), 

with a flat additional cost of $250 per 

incident.31 As such, the Department 

assumes that, on average, the provision 

of supportive measures at a LEA costs 

approximately $570 per incident (staff 

time plus flat additional cost). At the 

IHE level and at other recipients, the 

Department assumes that, per incident, 

the provision of supportive measures 

currently takes 2 hours from a Title IX 

Coordinator and 1 hour from an 

administrative assistant with a flat 

additional cost of $250 per incident. 

Therefore, the Department estimates 

that, on average, the provision of 

supportive measures at an IHE or other 

recipient costs approximately $510 per 

incident. The Department anticipates 

that the proposed regulations may 

increase the number of incidents for 

which supportive measures are 

provided per year. 

Currently, the Department assumes 

that a recipient offers and potentially 

provides supportive measures in all 

instances that, prior to the 2020 

amendments, would have triggered an 

investigation, as well as in many 

instances that previously would not 

have triggered an investigation. Across 

all recipient types, the Department 

assumes that under the proposed 

regulations, the number of incidents 

prompting an offer and provision of 


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supportive measures would be 

approximately 50 percent higher than 

the number of investigations conducted 

under the current regulations. For 

example, at LEAs, where the 

Department assumes an average of 3.23 

investigations per year were conducted 

before the 2020 amendments, the 

Department assumes that there would 

be an average annual increase to 4.85 

incidents prompting an offer of 

supportive measures under the 

proposed regulations. The Department 

assumes that, across all recipient types, 

supportive measures are accepted in 

approximately 90 percent of the 

incidents in which they are offered. 

Thus, the Department assumes that 

LEAs provide supportive measures 4.36 

times per year. At IHEs, the Department 

assumes 7.70 provisions of supportive 

measures per year and at other 

recipients, 2.70 provisions per year. 

Across all recipient types, the 

Department estimates that the provision 

of supportive measures based on pre2020 amendments incident data costs 

approximately $69,962,040 per year. 

The Department’s estimates also 

reflect an anticipated change in the 

behavior of complainants across all 

recipient types due to the proposed 

regulations. Specifically, the 

Department has received anecdotal 

reports of complainants accepting 

supportive measures while declining to 

participate in a recipient’s grievance 

procedures due to the perceived burden 

associated with initiating those 

procedures. The Department estimates 

that currently, the number of 

individuals accepting supportive 

measures is two to three times greater 

than the number of individuals 

choosing to pursue resolution through 

the recipient’s grievance procedures. 

Under the proposed regulations, 

however, the Department estimates that 

the percentage of individuals who 

report an incident to a recipient and 

choose to make a complaint to initiate 

the recipient’s grievance procedures 

under proposed § 106.45, and if 

applicable proposed § 106.46, would 

increase, with the discrepancy between 

the two reduced, on average, to 

approximately 35 percent. This change 

is also likely to result in large, 

unquantified benefits to complainants 

by providing increased opportunities for 

reporting sex discrimination and 

accepting supportive measures, as 

explained in the discussion of Benefits 

of the Proposed Regulations (Section 3). 

In response to the proposed regulations, 

the Department assumes, as described in 

the discussion of Developing the Model 

(Section 4.B), that all recipients would 

see a 10 percent increase in the number 

of incidents in which a complainant 

accepts some supportive measures 

offered. The Department notes that this 

is not an assumption that the proposed 

regulations would increase the number 

of incidents that may initiate an offer of 

supportive measures, but rather, the 

Department believes this increase likely 

would be driven by greater clarity 

regarding the scope of coverage created 

by the proposed regulations and 

enhanced training requirements which 

would inform individuals who are 

already eligible for such measures of the 

availability of these measures. The 

Department assumes that under the 

proposed regulations, each LEA would 

provide supportive measures 4.80 times 

per year, each IHE would do so 8.47 

times per year, and other recipients 

would do so 2.97 times each per year. 

In all, the Department estimates that 

after the enactment of the proposed 

regulations, the provision of supportive 

measures would cost a total of 

$76,958,240, for a net increase of 

$6,996,200. 

The Department requests comment on 

the likely effect of the proposed 

regulations on the costs associated with 

the provision of supportive measures, 

particularly regarding assumptions 

about the likely effects of recipients 

offering supportive measures in 

instances of receiving information about 

sex discrimination not related to sexbased harassment or prohibited 

retaliation. 

Investigations and adjudications 

Under the current regulations, the 

geographic location of an alleged 

incident affects whether the allegations 

would be covered under Title IX. As a 

result, the Department recognizes that 

LEAs and IHEs spend time investigating 

whether incidents took place in a 

location that requires the use of Title IX 

grievance procedures to investigate and 

adjudicate allegations of sexual 

harassment. The proposed change to 

§ 106.11 would clarify that Title IX 

applies to every recipient and all sex 

discrimination occurring under a 

recipient’s education program or 

activity. This includes the obligation to 

respond to a hostile environment based 

on sex under a recipient’s education 

program or activity in the United States, 

even if the sex-based harassment 

contributing to the hostile environment 

occurred outside the recipient’s 

education program or activity or outside 

the United States. In some instances, 

such as when an alleged incident 

occurred outside of the United States 

and may have contributed to a hostile 

environment in the recipient’s 

education program or activity 

domestically, the Department 

anticipates that the resulting 

investigation may be more time 

consuming. Due to a lack of high-quality 

data on these issues, the Department 

does not have a basis upon which to 

develop estimates of this change. The 

Department seeks comment to help 

better estimate the effects of this change. 

As noted in the discussion of 

Developing the Model (Section 4.B), it is 

the Department’s preliminary view that 

recipients would fall into three groups 

for purposes of categorizing their likely 

responses to the proposed regulations. A 

recipient in Group A would likely 

experience an increase in the number of 

Title IX investigations conducted under 

the proposed regulations, but it would 

also likely exercise flexibilities built 

into the proposed regulations which 

would reduce the burden per complaint. 

It is important to note that the 

Department assumes that the exercise of 

these flexibilities would not impact a 

recipient’s ability to ensure fair 

investigations and adjudications but 

rather, would allow it to develop and 

maintain prompt and equitable 

procedures tailored to its educational 

settings, reducing the burden on the 

recipient while ensuring the 

implementation of a fair and equitable 

proceedings for the parties. A recipient 

in Group B also would likely experience 

an increase in the number of 

investigations conducted annually. 

However, the Department believes in its 

tentative view that a recipient in Group 

B would be more likely to maintain the 

structures required under the 2020 

amendments, as these recipients likely 

already investigate and adjudicate the 

forms of conduct covered by the 

proposed regulations but excluded from 

the scope of the current regulations, by 

way of an alternative disciplinary 

process. Likewise, a recipient in Group 

C, having complied with the 2020 

amendments and also having continued 

to respond to sex discrimination as it 

had prior to those amendments, would 

be unlikely to experience any burden 

changes associated with increased 

numbers of investigations or changes in 

the burden of such investigations. 

As described in the discussion of 

Developing the Model (Section 4.B), the 

Department has a reasonable framework 

for understanding the likely actions of 

recipients, including how long it would 

take for a recipient to investigate a 

complaint of sexual harassment, based 

on discussions with organizations that 

work directly with Title IX Coordinators 

at LEAs and IHEs. For LEAs in Group 

A, the Department estimates that an 

investigation currently takes, on 


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32Estimates were based on information provided 

by national professional organizations and 

discussions with internal subject matter experts. 

average, 3 hours from a Title IX 

Coordinator, 4 hours from an 

administrative assistant, 2 hours each 

from two lawyers/advisors ($148.76/ 

hour) when they are involved, 6 hours 

from an investigator ($56.52/hour), and 

2 hours from an adjudicator ($75.94/ 

hour). Note that the Department 

assumes that lawyers/advisors would be 

involved in approximately 15 percent of 

cases. For IHEs in Group A, the 

Department assumes an investigation 

currently takes, on average, 6 hours 

from a Title IX Coordinator, 8 hours 

from an administrative assistant, 5 

hours each from two lawyers/advisors, 

10 hours from an investigator, and 2 

hours from an adjudicator. For other 

recipients in Group A, the Department 

assumes an investigation currently 

takes, on average, 2 hours from a Title 

IX Coordinator, 24 hours from an 

administrative assistant, 2 hours each 

from two lawyers/advisors, 1 hour from 

an investigator, and 2 hours from an 

adjudicator. Across all recipients in 

Group A, the Department assumes a flat 

rate of $100 per adjudication to meet the 

recording requirements of the 2020 

amendments. The Department estimates 

that LEAs in Group A currently 

conduct, on average, 1.94 investigations 

per year. At the IHE level, the 

Department estimates that Group A 

institutions conduct 3.82 investigations 

per year, while other recipients in 

Group A conduct, on average, one 

investigation per year. In total, the 

Department estimates that investigations 

and adjudications for recipients in 

Group A currently cost a total of 

approximately $6,807,190. 

Under the proposed regulations, the 

Department estimates that recipients in 

Group A would develop revised 

procedures to ensure fair investigations 

tailored to their educational settings, 

which would reduce the burden 

associated with each investigation and 

adjudication. Specifically, the removal 

of LEAs from some of the specific 

obligations under current § 106.45 

would result in such recipients in 

Group A no longer being required to 

supplement the work of their own 

administrators with specialized 

individuals when conducting an 

investigation and making a 

determination in response to a 

complaint of sex-based harassment. The 

Department assumes investigations 

would require 4 hours from a Title IX 

Coordinator or other administrator (such 

as a building-level principal or assistant 

principal) and 4 hours from an 

administrative assistant. At the IHE 

level, the Department assumes each 

investigation and adjudication would 

take 5 hours from a Title IX Coordinator, 

8 hours from an administrative 

assistant, 5 hours each from two 

lawyers/advisors, 10 hours from an 

investigator, and 2 hours from an 

adjudicator. For other recipients, the 

Department anticipates a need for 2 

hours from a Title IX Coordinator, 4 

hours from an administrative assistant, 

2 hours each from two lawyers/advisors, 

1 hour from an investigator, and 2 hours 

from an adjudicator. 

As a preliminary matter, the current 

regulations require a recipient to create 

an ‘‘audio or audiovisual recording, or 

transcript’’ of all live hearings. As LEAs 

are not required to hold hearings, the 

Department assumes that few, if any, 

choose to do so. However, because IHEs 

are required to hold hearings under the 

current regulations, many recipients 

with means have chosen to fulfill this 

requirement by using a court reporter. 

For IHEs and other recipients in 

Group A, the Department anticipates no 

change in the flat rate of $100 per 

investigation associated with meeting 

the recording requirements. The 

Department assumes no recording costs 

for LEAs in Group A. Under the 

proposed regulations, the Department 

assumes that LEAs in Group A would 

conduct, on average, 3.55 investigations 

per year; IHEs in Group A would 

conduct an average of 6.27 

investigations per year, and other 

recipients would conduct, on average, 

2.20 investigations per year. The 

Department therefore estimates that, 

under the proposed regulations, 

investigations and adjudications among 

recipients in Group A would cost 

approximately $9,548,740 per year, 

which represents a net burden increase 

of $2,741,550 per year. 

TABLE I—INVESTIGATIONS AND ADJUDICATIONS BURDEN ESTIMATES—GROUP A RECIPIENTS 32

Baseline After proposed regulations 

Cost category LEAs IHEs Other LEAs IHEs Other 

Title IX Coordinator .............................. 3 hours ........... 6 hours ........... 2 hours ........... 4 hours ........... 5 hours ........... 2 hours. 

Adm. Assistant ..................................... 4 hours ........... 8 hours ........... 4 hours ........... 2 hours ........... 8 hours ........... 4 hours. 

Lawyer/Advisor 1 ................................... 2 hours 2 ......... 5 hours ........... 2 hours ........... ........................ 5 hours ........... 2 hours. 

Investigator ........................................... 6 hours ........... 10 hours ......... 1 hour ............. ........................ 10 hours ......... 1 hour. 

Adjudicator ........................................... 2 hours ........... 2 hours ........... 2 hours ........... ........................ 2 hours ........... 2 hours. 

Recording ............................................. $100 ............... $100 ............... $100 ............... $0 ................... $100 ............... $100. 

# of Investigations ................................ 1.94 ................ 3.82 ................ 1.00 ................ 3.55 ................ 6.27 ................ 2.20. 

1When present, the Department assumes two lawyers/advisors per investigation and adjudication. 

2The Department assumes lawyers/advisors are involved in only 15 percent of investigations and adjudications. This estimate is based on information from a professional organization. 

For LEAs in Group B, the Department 

assumes an investigation currently 

requires 3 hours of time from a Title IX 

Coordinator, 14 hours from an 

administrative assistant, 8 hours each 

from two lawyers/advisors in 15 percent 

of cases, 8 hours from an investigator, 

and 2 hours from an adjudicator. At the 

IHE level in Group B, the Department 

estimates that current practices likely 

require 6 hours from a Title IX 

Coordinator, 20 hours from an 

administrative assistant, 20 hours each 

from two lawyers/advisors, 20 hours 

from an investigator, and 10 hours from 

an adjudicator. At other recipients in 

Group B, the Department assumes that 

current practices require 8 hours from a 

Title IX Coordinator, 16 hours from an 

administrative assistant, 8 hours each 

from two lawyers/advisors, 5 hours from 

an investigator, and 2 hours from an 

adjudicator. At LEAs and other 

recipients in Group B, the Department 

estimates that it would cost a flat rate of 

$100 per hearing to meet the recording 

requirements of the 2020 amendments. 


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At IHEs, the Department assumes a rate 

of $200 per hearing to account for the 

possibility that IHEs may want more 

extensive records of hearings, such as 

official transcripts, in addition to an 

audio recording. The Department 

assumes that LEAs in Group B currently 

conduct, on average, 1.938 

investigations per year; that IHEs in 

Group B conduct 3.82 investigations per 

year, and that other recipients in Group 

B conduct one investigation per year. In 

total, therefore, the Department 

estimates that investigations and 

adjudications for a recipient in Group B 

currently cost approximately 

$184,185,730 per year. 

As noted in the discussion of Lack of 

Data Following the Promulgation of the 

2020 Amendments (Section 4.A.3), the 

Department assumes that a recipient in 

Group B shifted approximately 90 

percent of those incidents into an 

alternative disciplinary process rather 

than not taking any action in response 

to incidents that were previously 

covered under their Title IX policies. As 

described in the discussion of 

Developing the Model (Section 4.B), the 

Department has initially determined, 

based on internal subject matter 

expertise, that many recipients 

developed alternative processes by 

which to address conduct that fell 

outside of the parameters of current 

§ 106.45. As noted in that section, 

Group B and Group C recipients created 

alternative processes that either 

reflected the recipient’s student conduct 

process (Group B recipients) or mirrored 

the current § 106.45 grievance 

procedures (Group C recipients). The 

Department assumes that resource and 

time expenditures for these alternative 

processes mirror those of the recipient’s 

student conduct process for Group B 

recipients or the recipient’s current 

§ 106.45 grievance procedures for Group 

C recipients. 

At the LEA level, the Department 

assumes that an alternative disciplinary 

process requires 3 hours from an 

administrator ($100.36/hour), 14 hours 

from an administrative assistant, 6 

hours each from two lawyers/advisors 

in 5 percent of cases, and 6 hours from 

an investigator. The Department 

estimates that in 75 percent of LEAs, the 

process is adjudicated by an 

administrator for 3 additional hours, 

while in the other 25 percent of LEAs, 

an independent adjudicator is needed 

for 2 hours. At the IHE level, the 

Department assumes that the alternative 

disciplinary process requires 6 hours 

from an administrator, 20 hours from an 

administrative assistant, 10 hours each 

from two lawyers/advisors, and 15 

hours from an investigator. The 

Department estimates that in 60 percent 

of IHEs, the process is adjudicated by an 

administrator for 6 additional hours, 

while in the other 40 percent of IHEs, 

an independent adjudicator is required 

for 8 hours. The Department estimates 

that LEAs in Group B, on average, 

shifted 1.628 investigations per year 

into alternative disciplinary processes 

in response to the 2020 amendments, 

while IHEs did the same with 1.70 

investigations, and other recipients did 

so for 0.9 investigations. The 

Department therefore estimates that a 

recipient currently spends 

approximately $62,463,510 per year on 

implementing alternative disciplinary 

processes for incidents that were 

previously covered under their 

grievance procedures prior to the 2020 

amendments. 

Under the proposed regulations, the 

Department assumes that all of those 

incidents would be handled under the 

recipient’s Title IX grievance 

procedures. At LEAs in Group B, the 

revised procedures would require 

approximately 4 hours from a Title IX 

Coordinator or other administrator (such 

as a building level principal or assistant 

principal) and 2 hours from an 

administrative assistant. The 

Department assumes that, in 

approximately 25 percent of instances, 

LEAs would use an investigator and 

adjudicator other than the Title IX 

Coordinator or other administrator. In 

such instances, the Department assumes 

that those LEAs would need 2 hours 

from an investigator and 1 hour from an 

adjudicator. The Department assumes 

that, in 5 percent of instances, each 

party would have a lawyer/advisor each 

spending 4 hours on the incident. These 

LEA level estimates represent an 

assumption that most LEAs would 

return to their processes from prior to 

the 2020 amendments due to the 

removal of LEAs from some of the 

specific obligations under current 

§ 106.45. At the IHE level in Group B, 

the revised procedures would require 5 

hours from a Title IX Coordinator, 13 

hours from an administrative assistant, 

15 hours each from two lawyers/ 

advisors, 18 hours from an investigator, 

and 8 hours from an adjudicator. For 

other Group B recipients, revised 

procedures would require 2 hours from 

a Title IX Coordinator, 6 hours from an 

administrative assistant, 2 hours each 

from two lawyers/advisors in 5 percent 

of proceedings, 2 hours from an 

investigator, and 1 hour from an 

adjudicator. 

Under the proposed regulations, the 

Department believes that Group B LEAs 

would conduct, on average, 3.553 

investigations per year, while IHEs 

would conduct 6.27 investigations per 

year, and other recipients would 

conduct 2.20 investigations per year. 

Therefore, under the proposed 

regulations, investigations and 

adjudications at a recipient in Group B 

would cost a total of approximately 

$180,542,490 per year which represents 

a net decrease in the burden associated 

with investigations and hearings by 

$66,106,750 per year. 

TABLE II—INVESTIGATIONS AND ADJUDICATIONS BURDEN ESTIMATES—GROUP B RECIPIENTS

Cost category Baseline After proposed regulations 

Harassment grievance procedures LEAs IHEs Other LEAs IHEs Other 

Title IX Coordinator .............................. 3 hours ........... 6 hours ........... 8 hours ........... 4 hours ........... 5 hours ........... 2 hours. 

Adm. Assistant ..................................... 14 hours ......... 20 hours ......... 16 hours ......... 2 hours ........... 13 hours ......... 6 hours. 

Lawyer/Advisor 1 ................................... 8 hours 2 ......... 20 hours ......... 8 hours ........... 4 hours 3 ......... 15 hours ......... 2 hours. 

Investigator ........................................... 8 hours ........... 20 hours ......... 5 hours ........... 2 hours 4 ......... 18 hours ......... 2 hours. 

Adjudicator ........................................... 2 hours ........... 10 hours ......... 2 hours ........... 1 hours 4 ......... 8 hours ........... 1 hour. 

Recording ............................................. $100 ............... $200 ............... $100 ............... $100 ............... $200 ............... $100. 

# of Investigations ................................ 1.94 ................ 3.82 ................ 1.00 ................ 3.55 ................ 6.27 ................ 2.20. 

Alternate Process ................................. LEAs ............... IHEs ............... Other.

Administrator ........................................ 3 hours 5 ......... 6 hours 6 ......... 4 hours.

Adm. Assistant ..................................... 14 hours ......... 20 hours ......... 8 hours.

Lawyer/Advisor 1 ................................... 6 hours 3 ......... 10 hours.


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TABLE II—INVESTIGATIONS AND ADJUDICATIONS BURDEN ESTIMATES—GROUP B RECIPIENTS—Continued 

Cost category Baseline After proposed regulations 

Harassment grievance procedures LEAs IHEs Other LEAs IHEs Other 

Investigator ........................................... 6 hours ........... 15 hours.

Adjudicator ........................................... 2 hours ........... 8 hours.

Recording ............................................. $100 ............... $200 ............... $100.

# of Investigations ................................ 1.16 ................ 1.70 ................ 0.90.

1When present, the Department assumes two lawyers/advisors per investigation and adjudication. 

2The Department assumes lawyers/advisors are involved in 15 percent of investigations and adjudications. 

3The Department assumes lawyers/advisors are involved in 5 percent of investigations and adjudications. 

4The Department assumes investigators and adjudicators other than the Title IX Coordinator or another administrator would be used in approximately 25 percent of instances. 5The Department assumes administrators also serve as adjudicators in 75 percent of instances and their burden doubles in such cases. 6The Department assumes administrators also serve as adjudicators in 60 percent of instances and their burden doubles in such cases. 

Appeals and Informal Resolution 

The Department assumes that nothing 

in the proposed regulations would 

change the nature of the appeal process 

for fully adjudicated complaints. The 

Department notes that the proposed 

regulations would require all recipients 

to offer an appeal of a dismissal of a sex 

discrimination complaint. This limited 

right to an appeal is an expansion of 

recipients’ current obligations as it 

would apply to any dismissal of a sex 

discrimination complaint, not just to 

complaints of sex-based harassment. 

Although it is possible that at least some 

portion of recipients have an appeal 

process as part of their current 

procedures for resolving complaints of 

sex discrimination, the Department 

assumes that its current estimates may 

overestimate the costs of the proposed 

regulations in this area. The Department 

requests comment on this issue. 

Assuming that there is a de minimis 

change regarding the number of 

recipients that offer an appeal because 

all recipients would need to offer an 

appeal from a dismissal of a complaint 

of sex discrimination, there would be 

additional costs to a recipient associated 

with appeals because of the estimated 

increase in the number of complaints 

brought under the proposed regulations 

and the proportion of decisions that 

could be appealed. 

Across all recipients, the Department 

estimates that one or more parties in 

approximately half of all fully 

adjudicated complaints appeal the 

determination. This estimate is 

consistent with estimates from the 2020 

amendments and the Department again 

seeks comment on the extent to which 

this estimate is reasonable and whether 

this proportion is likely to change under 

the proposed regulations. The 

Department assumes that at the LEA 

level, the appeal process would require 

2 hours each from a Title IX 

Coordinator, administrative assistant, 

and two lawyers/advisors as well as an 

additional 6 hours from an adjudicator 

while at the IHE level, the Department 

assumes that the appeal process requires 

2 hours from a Title IX Coordinator, 4 

hours from an administrative assistant, 

5 hours each from two lawyers/advisors, 

and 8 hours from an adjudicator. 

Likewise, at other recipients, the 

Department assumes that the appeal 

process requires 2 hours each from a 

Title IX Coordinator, administrative 

assistant, and two lawyers/advisors, 

with an additional 8 hours from an 

adjudicator. Assuming that LEAs, on 

average, would handle an additional 

0.605 appeals per year as a result of the 

proposed regulations, IHEs, on average, 

would receive an additional 0.921 

appeals per year, and other recipients, 

on average, would see an additional 0.5 

per year, the Department estimates that 

the increase in appeals stemming from 

the increase in complaints likely to be 

made under the proposed regulations 

would result in an additional cost of 

approximately $21,084,350 per year. 

The Department expects that the 

proposed regulations would have a de 

minimis change on the proportion of 

complaints resolved through informal 

resolution and would not affect the 

general burden associated with each 

such resolution. Specifically, although 

the requirements for grievance 

procedures would be less burdensome 

under the proposed regulations than 

under the current regulations, the 

Department expects that the majority of 

complainants who would have elected 

to proceed with informal resolution 

under the current regulations would 

continue to do so under the proposed 

regulations because of the elimination of 

the current regulations’ formal 

complaint requirement prior to 

initiating the informal resolution 

process. Although it is possible that a 

complainant would decide to make a 

complaint and pursue an investigation 

because of the reduced burden under 

the proposed regulations, it is the 

Department’s tentative view that there is 

no basis to assume that a complainant 

who would have pursued informal 

resolution under the current regulations 

is more or less likely to choose informal 

resolution under the proposed 

regulations because individuals’ 

rationales for choosing an informal 

resolution process vary widely. 

Based on anecdotal reports from 

recipients and other stakeholders, the 

Department assumes that informal 

resolutions require more time from a 

Title IX Coordinator and an 

administrative assistant than an 

investigative process. In contrast, the 

Department assumes that the informal 

resolution process would remove all 

costs associated with investigators, 

adjudicators, and recording at all levels 

and eliminate costs for lawyers/advisors 

at the LEA level. At the LEA level, 

informal resolution may require 1 

additional hour from a Title IX 

Coordinator and 5 hours from an 

administrative assistant above the level 

needed for a full hearing; at the IHE 

level, the additional burden would be 

2.5 hours from a Title IX Coordinator 

and 1 hour from an administrative 

assistant, while at other recipients, the 

additional burden is estimated to be 1 

hour from a Title IX Coordinator and 3 

hours from an administrative assistant. 

The Department assumes that, in 

instances of informal resolution, there 

would be no burden for investigators or 

adjudicators at LEAs, IHE, or other 

recipients, and no burden for lawyers/ 

advisors at LEAs or other recipients. At 

the IHE level, the Department assumes 

that, even in instances of informal 

resolution, there would be a burden of 

6 hours each for two lawyers/advisors 

(one working with each party), 

assuming that the individuals serving in 

those roles may become involved earlier 

in the process than at other educational 

levels or at other recipients. In light of 

the increase in complaints that the 

Department anticipates under the 


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proposed regulations, the estimated 

increase in the cost of informal 

resolutions would be approximately 

$12,830,090 per year. 

Recordkeeping 

The Department assumes that all 

recipients would need to modify their 

existing recordkeeping systems to 

comply with the proposed regulations. 

Specifically, the Department submits 

that proposed § 106.8(f) would broaden 

the existing scope of the recordkeeping 

requirements under current 

§ 106.45(b)(10) because, unlike the 

current regulations, the proposed 

recordkeeping requirement applies to all 

incidents or complaints of sex 

discrimination. However, the 

Department assumes that many 

recipients already maintain records 

related to sex discrimination under the 

auspices of State, local, or other 

requirements. In these instances, 

proposed § 106.8(f) would not impose 

any additional burden on those 

recipients as their existing 

recordkeeping activity would likely 

address all pertinent requirements 

under the proposed regulations. 

Alternatively, for recipients that only 

maintain records related to sexual 

harassment as required by current 

§ 106.45(b)(10) and do not preserve 

information related to other forms of sex 

discrimination, the proposed changes 

would increase their burden based on 

the volume of records they will need to 

maintain related to forms of sex 

discrimination other than sexual 

harassment, as would be required by 

proposed § 106.8(f). The Department 

estimates that the proposed regulations, 

in general, would increase the 

recordkeeping burden for these 

recipients. At the LEA level, the 

Department estimates that necessary 

modifications to current practice would 

require 2 hours each from a Title IX 

Coordinator and an administrative 

assistant, whereas at the IHE level, 

where a recipient is more likely to 

maintain electronic systems for these 

records, these changes would require 4 

hours from a Title IX Coordinator, 8 

hours from an administrative assistant, 

and 4 hours from a database 

administrator ($76.54/hour). At other 

recipients, the Department estimates 

that modifications would require 2 

hours each from a Title IX Coordinator 

and an administrative assistant. In total, 

the Department estimates that 

modifications to recipients’ 

recordkeeping systems would cost 

approximately $13,288,180 in Year 1. 

In future years, the Department 

assumes the proposed regulations 

would necessitate an ongoing increase, 

above the baseline year, in 

recordkeeping costs. Specifically, at the 

LEA level, the Department estimates 

that recordkeeping would require 1 

additional hour each from the Title IX 

Coordinator and an administrative 

assistant; at the IHE level, 1 additional 

hour from the Title IX Coordinator and 

5 hours from an administrative 

assistant; and at other recipients, 1 

additional hour each from the Title IX 

Coordinator and an administrative 

assistant. In total, the Department 

estimates the ongoing recordkeeping 

burden to increase by approximately 

$5,382,570 per year. 

The Department seeks comment on 

these estimates, particularly whether 

they accurately reflect the likely 

changes in annual burden on recipients 

associated with the proposed changes to 

§ 106.8(f). 

Monitoring the Recipient’s Education 

Program or Activity for Barriers to 

Reporting Information About Conduct 

That May Constitute Sex Discrimination 

The Department’s proposed 

regulations would require a recipient to 

ensure that its Title IX Coordinator 

monitors the recipient’s education 

program or activity for barriers to 

reporting sex discrimination and that 

the recipient take steps reasonably 

calculated to address such barriers. 

Although a recipient is neither required 

to nor prohibited from monitoring its 

environment for these barriers under the 

current regulations, the Department 

assumes that many recipients, 

particularly IHEs, currently monitor 

their education programs or activities 

for such barriers to avoid potential legal 

liability because barriers to reporting 

limit a recipient’s ability to ensure that 

its education program or activity is 

operating free from sex discrimination. 

The Department also assumes that Title 

IX Coordinators are motivated to 

proactively identify and address sex 

discrimination in the recipient’s 

education program or activity. Although 

some recipients may need to create new 

mechanisms to monitor their 

environments, the Department believes 

that many of these recipients will select 

options with de minimis costs, such as 

incorporating questions designed to 

elicit information from students and 

employees about barriers to reporting 

into existing training materials, 

incorporating such questions into 

conversations with students, employees, 

and others during roundtable 

discussions or listening sessions with 

interested stakeholders, or through other 

means. The Department similarly 

assumes that the steps a recipient would 

need to take to remove these barriers, 

should they be identified, would likely 

have a de minimis cost as well (e.g., 

reminding students, employees, and 

others during trainings about the range 

of reporting options available at a 

particular recipient or reporting an 

employee who discourages their 

students from reporting to human 

resources for violating the recipient’s 

code of ethics standards). That said, the 

Department recognizes that there is a 

wide range of possible recipient 

responses to this proposed requirement 

with potentially varying costs and 

benefits. Therefore, the Department 

requests comment on the likely costs 

associated with monitoring a recipient’s 

environment for barriers to sex 

discrimination and taking steps 

reasonably calculated to remove such 

barriers. 

4.D. Changes in the Proposed 

Regulations Not Estimated To Have 

Costs 

In addition to the changes explained 

in the discussion of Cost Estimates 

(Section 4.C) that are estimated to have 

costs, there are several proposed 

changes that the Department does not 

anticipate would generate costs for 

regulated entities above and beyond 

general costs described previously. The 

Department believes it is important to 

discuss some of these proposed changes 

to clarify the basis for that assumption 

and ensure that the public has an 

adequate opportunity to review and 

comment on the Department’s analysis. 

Lactation Space for Students and 

Employees 

Although the current regulations 

specifically prohibit discrimination 

against students and employees based 

on pregnancy, childbirth, termination of 

pregnancy, and recovery, the 

Department proposes revising the 

regulations to clarify that a recipient 

may not discriminate based on 

pregnancy or related conditions, 

including lactation. The Department 

also proposes revisions to the 

regulations that would require a 

recipient to provide a lactation space for 

students and employees and reasonable 

modifications for students and break 

time for employees to enable use of the 

space as needed. Specifically, proposed 

§ 106.40(b)(3)(iv) would require a 

recipient to ‘‘[e]nsure the availability of 

a lactation space, which must be a space 

other than a bathroom, that is clean, 

shielded from view, free from intrusion 

from others, and may be used by a 

student for expressing breast milk or 

breastfeeding as needed.’’ Similarly, 

proposed § 106.57(e) would require a 

recipient to provide ‘‘reasonable break 


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33Under the FLSA, a covered enterprise is ‘‘the 

related activities performed through unified 

operation or common control by any person or 

persons for a common business purpose and . . . 

is engaged in the operation of a . . . a preschool, 

an elementary or secondary school, or an institution 

of higher education (whether operated for profit or 

not for profit)’’ or ‘‘is an activity of a public 

agency.’’ U.S. Dep’t of Labor, Handy Reference 

Guide to the Fair Labor Standards Act (Sept. 2016), 

https://www.dol.gov/agencies/whd/complianceassistance/handy-reference-guide-flsa. 

time for an employee to express breast 

milk or breastfeed as needed’’ and to 

‘‘ensure the availability of a lactation 

space, which must be a space other than 

a bathroom that is clean, shielded from 

view, free from intrusion from others, 

and may be used by an employee for 

expressing breast milk or breastfeeding 

as needed.’’ Both measures are critical 

means for preventing discrimination 

and ensuring that students and 

employees are able to continue pursuing 

their education and employment, 

respectively, while taking brief breaks 

from their classes or job duties as 

needed to express breast milk or 

breastfeed. 

The Department does not anticipate 

significant cost to recipients based on 

this proposed revision. Although it is 

possible that the proposed regulations’ 

clarification that a lactation space must 

be available for both students and 

employees may result in an increase in 

demand for a such a space, it is the 

Department’s tentative view that any 

such increase would likely result in a de 

minimis impact on costs as distributed 

over all recipients over time. The 

Department posits this for several 

reasons. 

First, although it is unknown how 

many recipients presently offer lactation 

space for students or employees due to 

a lack of data, all or virtually all 

recipients are already required to 

comply with provisions for lactation 

time and space for employees covered 

under the Affordable Care Act’s 

amendments to Section 7 of the Fair 

Labor Standards Act (FLSA).33 The 

FLSA requires employers to provide 

reasonable break times and a private 

place, other than a bathroom, to 

employees covered under Section 7 of 

the FLSA who are breastfeeding to 

express milk for one year after their 

child’s birth. 29 U.S.C. 207(r)(1). The 

space must be ‘‘shielded from view and 

free from intrusion from coworkers and 

the public.’’ Id. The Department of 

Labor (DOL) has explained that the 

space must also be ‘‘functional’’ and 

‘‘available when needed’’ and that the 

‘‘frequency of breaks needed to express 

milk as well as the duration of each 

break will likely vary.’’ U.S. Dep’t of 

Labor, Fact Sheet #73: Break Time for 

Nursing Mothers under the FLSA (April 

2018), https://www.dol.gov/agencies/ 

whd/fact-sheets/73-flsa-break-timenursing-mothers. DOL has also clarified 

that a temporary or converted space is 

sufficient if the space is available when 

needed, shielded from view, and free 

from any intrusion from co-workers and 

the public. Id. Employees who would be 

covered by the lactation time and space 

requirements of the FLSA include many 

full-time and part-time workers in 

public and private education programs 

or activities. 29 U.S.C. 203(e). Although 

the FLSA exempts certain employees, 

such as professors, teachers, and certain 

academic administrative personnel from 

coverage, virtually all recipients would 

nevertheless have to provide lactation 

space to their non-exempt staff. See 29 

U.S.C. 213(a)(1) (exempting executive, 

administrative, and professional 

employees, including academic 

administrative personnel and teachers, 

from the FLSA); 29 U.S.C. 207(r)(1) 

(FLSA lactation time and space 

requirement). The Department does not 

have specific information about existing 

lactation spaces for employees due to a 

lack of relevant data. The Department 

assumes, however, that given the 

limited requirements for the lactation 

space itself, that most recipients would 

be able to locate such a space within 

their current property or maximize the 

use of an existing space. The 

Department’s proposed requirements 

regarding lactation space are similar to 

those of the FLSA with the additional 

requirement that the space be clean. The 

Department assumes that most, if not 

all, recipients already clean their 

facilities, including any existing 

lactation space, and anticipates that the 

additional cost of cleaning associated 

with the proposed regulations would be 

negligible. 

Second, some States also require a 

recipient either to provide lactation 

space to employees or to make 

reasonable attempts to do so. See, e.g., 

Minn. Stat. Ann. § 181.939 (2014) 

(requiring employers to make a 

reasonable effort to provide a private 

location, other than a bathroom or toilet 

stall, in close proximity to the 

workplace that is shielded from view, 

free from intrusion, and has an electrical 

outlet); N.M. Stat. Ann. § 28–20–2 

(2007) (requiring employers to provide a 

clean, private place, not a bathroom, for 

employees who are breastfeeding to 

pump); N.Y. Labor Law § 206–C (2007) 

(requiring that employers make a 

reasonable attempt to provide 

employees a private location for 

lactation); Okla. Stat. tit. 70, § 5–149.3 

(2021) (requiring each school district 

board of education to make a reasonable 

effort to provide a private, secure, 

sanitary room or other location, other 

than a toilet stall, for an employee to 

express milk or breastfeed a child); R.I. 

Gen. Laws § 28–5–7.4 (2015) 

(prohibiting employers from refusing to 

reasonably accommodate an employee’s 

or prospective employee’s condition 

related to pregnancy, childbirth, or a 

related medical condition, including but 

not limited to the need to express breast 

milk for a nursing child; ‘‘reasonable 

accommodation’’ is defined to include a 

‘‘private non-bathroom space for 

expressing breast milk’’); S.C. Code 

Ann. § 41–1–130 (2020) (requiring 

employers to make reasonable efforts to 

provide certain areas where employees 

may express breast milk); Tenn. Code 

Ann. § 50–1–305 (1999) (requiring 

employers to make a reasonable effort to 

provide a private location, other than a 

toilet stall, near the workplace for 

employees’ lactation); Utah Code Ann. 

§ 34–49–202 (2015) (requiring public 

employers to provide employees a 

clean, private room or location that is 

not a bathroom and that has an 

electrical outlet for lactation, as well as 

access to a refrigerator or freezer for the 

storage of breast milk); Vt. Stat. Ann. 

Tit. 21, § 305 (2008) (requiring 

employers to ‘‘[m]ake a reasonable 

accommodation [for lactation] to 

provide appropriate private space that is 

not a bathroom stall’’); Va. Code § 22.1– 

79.6 (2014) (requiring local school 

boards to designate private, nonrestroom locations for employees and 

students to express breast milk); Wash. 

Rev. Code 43.10.005 (2017) (requiring 

employers to provide a private location, 

other than a bathroom, for employee 

lactation, or if no such space exists, 

work with the employee to identify a 

convenient location for lactation). As 

some States already require recipients to 

provide lactation spaces or make 

reasonable attempts to do so, the 

Department believes that the proposed 

requirement would be neither 

burdensome nor costly as many 

recipients may already be required to 

comply with similar provisions due to 

State law. 

In addition, for some recipients, 

lactation space and break times may be 

the subject of local laws or separate 

employment agreements, such as 

collective bargaining agreements. Some 

recipients may simply provide lactation 

space and break time voluntarily. In 

short, the Department anticipates that 

its proposed regulations would impose 

de minimis cost on a recipient that is 

already providing lactation space and 

breaks to its staff. 


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The Department acknowledges that in 

some cases, the proposed regulations 

may result in increased demand for 

lactation space or break time. It is 

difficult to quantify the extent to which 

demand might increase or how demand 

might vary over time as the Department 

is not aware of any available data source 

that tracks the numbers of students or 

employees in need of lactation space. 

The Department anticipates that 

demand would vary across recipients, 

based on the composition of the student 

and employee population at any time, 

further reducing the impact to 

individual recipients. 

When a recipient already has a 

lactation space, the Department 

anticipates that it is likely that the space 

would meet the Department’s proposed 

requirements for the reasons already 

discussed. In addition, because a 

lactation space is only in use by any 

given person for a limited period of 

time, it is possible that many recipients 

already have sufficient capacity to 

accommodate additional users; 

however, the Department anticipates 

that a recipient that does not currently 

provide lactation space would be able to 

comply with the proposed regulations 

using existing space at minimal cost. 

For example, the proposed regulations 

do not require that a lactation space be 

of a particular size, shape, or include 

particular features other than being 

private and clean. Similarly, the 

Department anticipates that a recipient 

that currently provides lactation space 

would already have a system in place to 

administer use of the space (for 

example, through a sign-up system) to 

the extent needed and that this could be 

adapted to accommodate new demand 

with minimal cost. 

With respect to the Department’s 

proposed requirement that a recipient 

provide its employees with reasonable 

break time for lactation, the Department 

also anticipates that any increased 

demand could be managed through an 

existing system for coverage of 

employees who require brief breaks for 

other reasons. This is more likely to be 

necessary for LEA school teachers, 

whose breaks may require coverage 

because of the nature of school 

schedules, rather than employees at 

IHEs who may not require coverage 

during breaks needed for lactation 

because those employees do not 

typically have supervisory 

responsibility for children. The 

Department also recognizes that at some 

IHEs and other types of recipients, some 

employees would have access to a 

private office that is sufficient for 

lactation needs. 

Finally, the Department anticipates 

that its proposed regulations regarding 

lactation time and space would also 

likely improve the recipient’s retention 

of its students and employees. For 

example, a student parent may be more 

comfortable remaining in an education 

program or activity in which the 

recipient is reducing barriers to 

remaining in school during the early 

months and years of a child’s life. 

Likewise, an employee who has access 

to sufficient lactation time and space 

may also be more likely to return to the 

workplace or return earlier from 

parental leave than one who does not 

have such access because the employee 

knows that they can continue to 

breastfeed after returning to work. For 

these reasons, the Department submits 

that this provision, as proposed, would 

impose de minimis costs and would 

provide important benefits in terms of 

eliminating sex-based barriers to 

education and employment. 

Reasonable Modifications for Students 

Because of Pregnancy or Related 

Conditions 

The Department does not anticipate 

significant cost to a recipient based on 

proposed § 106.40(b)(3)(ii) and (4), 

which would require that a recipient 

provide a student the option of 

reasonable modifications because of the 

student’s ‘‘pregnancy or related 

conditions’’ as defined by proposed 

§ 106.2, because this requirement is 

similar to OCR’s previous discussion of 

a recipient’s obligations in this context. 

U.S. Dep’t of Educ., Office for Civil 

Rights, Supporting the Academic 

Success of Pregnant and Parenting 

Students Under Title IX of the 

Education Amendments of 1972 at 9 

(June 2013) (2013 Pregnancy Pamphlet), 

https://www2.ed.gov/about/offices/list/ 

ocr/docs/pregnancy.pdf. Current 

§ 106.40(b)(1) prohibits a recipient from 

discriminating against or excluding 

‘‘any student from its education 

program or activity, including any class 

or extracurricular activity, on the basis 

of the student’s pregnancy, childbirth, 

false pregnancy, termination of 

pregnancy or recovery therefrom, unless 

the student requests voluntarily to 

participate in a separate portion of the 

program or activity of the recipient.’’ 

Likewise, current § 106.40(b)(4) has long 

required a recipient to treat pregnancy 

or related conditions similarly to other 

temporary disabilities ‘‘with respect to 

any medical or hospital benefit, service, 

plan, or policy [the] recipient 

administers, operates, offers, or 

participates in with respect to students 

admitted to the recipient’s educational 

program or activity.’’ 

OCR’s 2013 Pregnancy Pamphlet 

clarified that to ‘‘ensure a pregnant 

student’s access to its educational 

program, when necessary, a school must 

make adjustments to the regular 

program that are reasonable and 

responsive to the student’s temporary 

pregnancy status. For example, a school 

might be required to provide a larger 

desk, allow frequent trips to the 

bathroom, or permit temporary access to 

elevators.’’ 2013 Pregnancy Pamphlet at 

9. As the requirement for reasonable 

modifications because of pregnancy or 

related conditions builds upon the 

former ‘‘reasonable and responsive’’ 

standard and sets a clearer framework 

for how to assess what must be 

provided, the Department does not 

anticipate that the required steps for 

compliance with the proposed 

‘‘reasonable modifications because of 

pregnancy or related conditions’’ 

standard under proposed § 106.40(b)(4) 

would be more costly than under the 

prior OCR interpretation of a recipient’s 

duties. 

Participation Consistent With Gender 

Identity 

The Department does not anticipate 

significant cost to a recipient above and 

beyond the general costs described in 

the discussion of Costs of the Proposed 

Regulations (Section 4), to comply with 

proposed §§ 106.31(a)(2) and 

106.41(b)(2). Proposed § 106.31(a)(2) 

would clarify that even in the discrete, 

limited settings in which a recipient 

may impose different treatment or 

separate students on the basis of sex, a 

recipient must not do so in a manner 

that subjects a person to more than de 

minimis harm, unless otherwise 

permitted by Title IX or the Title IX 

regulations. Proposed § 106.31(a)(2) also 

would clarify that adopting a policy or 

engaging in a practice that prevents a 

person from participating in an 

education program or activity consistent 

with their gender identity causes more 

than de minimis harm. As described in 

the discussion of Coverage of All Forms 

of Sex Discrimination (Section IV), the 

proposed regulations’ prohibition on 

preventing a person from participating 

in an education program or activity 

consistent with their gender identity is 

consistent with the analysis of Federal 

courts that have addressed how Title IX 

protects students from discrimination 

based on sex stereotypes and gender 

identity. Some stakeholders have 

expressed concern about costs 

associated with permitting students to 

participate in certain education 

programs or activities consistent with 

their gender identity. Compliance with 

proposed § 106.31(a)(2) may require 


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updating of policies or training 

materials, but would not require 

significant expenditures, such as 

construction of new facilities or creation 

of new programs. For the many schools 

that have long maintained policies and 

practices that generally permit students 

to participate in school consistent with 

their gender identity, the proposed 

regulations may not require any change. 

See, e.g., Cal. Dep’t of Educ., Legal 

Advisory regarding application of 

California’s antidiscrimination statutes 

to transgender youth in schools 

(updated Sept. 16, 2021), https://

www.cde.ca.gov/re/di/eo/ 

legaladvisory.asp (describing obligation 

under California and Federal law that 

schools afford students equal 

opportunity and access to the school’s 

facilities, activities, and programs, in a 

manner that is consistent with each 

student’s gender identity); Washoe Cnty. 

Sch. Dist., Administrative Regulation 

5161: Gender Identity and Gender NonConformity—Students (2019), https://

www.wcsdpolicy.net/pdf_files/ 

administrative_regulations/5161_RegGender_Identify-v2.pdf (permitting 

students to participate in sex-separate 

activities in accordance with their 

gender identity). A recipient that 

maintains policies and practices that 

prevent students from participating in 

school consistent with their gender 

identity would be required to review 

and update those policies and practices 

under the proposed regulations; 

however, the Department anticipates 

that the costs of these modifications 

would be subsumed into the general 

costs of updating policies and 

procedures to comply with the proposed 

regulations. 

The Department notes that some costs 

associated with proposed § 106.31(a)(2) 

may be addressed elsewhere in the RIA. 

For instance, to the extent that a 

recipient’s failure to comply with 

proposed § 106.31(a)(2) would lead to 

additional investigations of alleged 

discrimination, those costs are 

addressed in the discussion of costs 

associated with the proposal to clarify 

Title IX’s coverage of gender identity 

discrimination. Similarly, to the extent 

that a recipient would take steps to train 

employees or students on gender 

identity discrimination, those costs are 

addressed in the discussion of costs 

associated with training. As this is an 

evolving area of the law, the Department 

anticipates there may be some costs 

associated with potential litigation. 

The Department acknowledges that 

these assumptions are uncertain, and 

requests comment on anticipated 

changes associated with compliance 

with proposed § 106.31(a)(2), along with 

information on any costs associated 

with such changes. 

5. Regulatory Alternatives Considered 

The Department reviewed and 

assessed various alternatives prior to 

issuing the proposed regulations, 

drawing from internal sources, as well 

as feedback OCR received in connection 

with the June 2021 Title IX Public 

Hearing, numerous listening sessions, 

and the meetings held in 2022 under 

Executive Order 12866. In particular, 

the Department considered the 

following alternative actions: (1) leaving 

the current regulations without 

amendment; (2) rescinding the current 

regulations in their entirety and 

reissuing past guidance, including U.S. 

Dep’t of Educ., Office for Civil Rights, 

Revised Sexual Harassment Guidance: 

Harassment of Students by School 

Employees, Other Students, or Third 

Parties at 3, noticed at 66 FR 5512 (Jan. 

19, 2001) (rescinded upon effective date 

of 2020 amendments, Aug. 14, 2020), 

www.ed.gov/ocr/docs/shguide.pdf; U.S. 

Dep’t of Educ., Office for Civil Rights, 

Dear Colleague Letter: Sexual Violence 

(Apr. 4, 2011) (rescinded in 2017), 

https://www2.ed.gov/about/offices/list/ 

ocr/letters/colleague-201104.pdf; and 

U.S. Dep’t of Educ., Office for Civil 

Rights, Questions and Answers on Title 

IX and Sexual Violence at 5 (Apr. 29, 

2014) (rescinded in 2017), www.ed.gov/ 

ocr/docs/qa-201404-title-ix.pdf; (3) 

rescinding the current regulations, 

either in whole or in part, and issuing 

new guidance; (4) proposing narrower 

amendments to the current regulations, 

or (5) issuing completely new proposed 

amendments to address significant areas 

(e.g., clarifying coverage includes 

gender identity, applying regulatory 

grievance procedure requirements to all 

sex discrimination complaints, and 

adding regulatory provisions on a 

recipient’s obligation to students and 

employees who are pregnant or 

experiencing pregnancy-related 

conditions). 

The Department believes a 

combination of (4) and (5), which 

involves issuing proposed amendments, 

is the better alternative. The 

combination of these alternatives would 

mean amending the current regulations 

to make noteworthy adjustments that 

would better achieve the objectives of 

the statute, are consistent with recent 

case law, and account for the feedback 

OCR received in connection with its 

June 2021 Title IX Public Hearing, 

numerous listening sessions, and the 

meetings held in 2022 under Executive 

Order 12866. Based on its internal 

review, the Department’s current view is 

that the current regulations may not 

fully address all forms of sex 

discrimination in a recipient’s 

education program or activity or offer 

sufficient safeguards to reduce—and 

ultimately remove—sex discrimination 

in the educational setting. The approach 

adopted in the 2020 amendments may 

have created a gap in implementing 

Title IX’s prohibition on sex 

discrimination: a recipient may have 

information about possible sex 

discrimination in its education program 

or activity and yet may have no 

obligation to take any action to address 

it if a formal complaint is not filed and 

the recipient’s Title IX Coordinator 

determines that the allegations do not 

warrant overriding a complainant’s 

wishes and initiating a complaint. 

Numerous stakeholders shared their 

concerns with the Department, 

specifically that certain requirements in 

the current regulations may impede a 

recipient from taking prompt and 

effective action in response to 

allegations of sexual harassment in the 

recipient’s education program or 

activity. By creating extensive 

obligations related only to certain forms 

of sexual harassment and leaving a 

recipient’s obligations with respect to 

the necessary grievance procedures to 

respond to other forms of sex-based 

harassment and sex discrimination 

unaddressed, the current regulations 

may have created a risk that Title IX’s 

prohibition on sex discrimination 

would be underenforced. In addition, it 

is the Department’s tentative view that 

greater clarity is required than what is 

in the current regulations with respect 

to the scope of sex discrimination, 

including with respect to discrimination 

based on sex stereotypes, sex 

characteristics, pregnancy or related 

conditions, sexual orientation, and 

gender identity. The Department is 

concerned that equal access to a 

recipient’s education program or 

activity free from sex discrimination 

may be impaired absent this clarity. 

For reasons explained in the RIA as 

well as throughout the preamble, and in 

light of stakeholder feedback received in 

2021 and 2022, alternative (1) was not 

a reasonable option. Alternatives (2) and 

(3) were rejected because the 

Department continues to believe that it 

is necessary to establish, through 

regulations, the legal obligations of a 

recipient to ensure that its education 

program or activity is free from all forms 

of sex discrimination; guidance 

documents, which are not legally 

binding on a recipient, would not serve 

that function. 

After careful consideration of these 

alternatives, the Department proposes 

that adopting alternatives (4) and (5) to 


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(a) best fulfill Title IX’s guarantee of 

nondiscrimination on the basis of sex by 

a recipient of Federal funds in its 

education program or activity; (b) 

ensure that a recipient understands its 

obligations to address sex 

discrimination in all forms, including 

sex-based harassment, so that students 

and others can participate in the 

educational environment free from 

discrimination based on sex; (c) 

safeguard fairness for all who 

participate in a recipient’s grievance 

procedures for sex discrimination, 

including sex-based harassment; (d) 

protect a person’s rights under Title IX 

by requiring a recipient to provide 

appropriate supportive measures to the 

complainant and the respondent and 

remedies to a complainant or any other 

person the recipient identifies as having 

their equal access to the recipient’s 

education program or activity limited or 

denied by sex discrimination; and (e) 

ensure that a recipient understands its 

obligations to prevent discrimination 

against and ensure equal access for 

students and employees who are 

pregnant or experiencing pregnancyrelated conditions. 

In addition to reviewing stakeholder 

feedback, the Department considered 

alternatives to the proposed regulations 

based upon its internal analysis of the 

costs and benefits of various options. 

Clarification of the Scope of Title IX 

During its review of various 

alternatives to the proposed regulations, 

the Department considered whether to 

clarify and define the scope of Title IX. 

Specifically, although the current 

regulations define sexual harassment, 

they do not clarify the scope of Title 

IX’s prohibition on sex discrimination. 

The Department considered several 

options to address this area and chose 

to specify in the proposed regulations 

that Title IX’s prohibition on sex 

discrimination includes discrimination 

on the basis of pregnancy or related 

conditions, sex stereotypes, sex 

characteristics, sexual orientation, and 

gender identity. Although the 

Department recognizes that clarifying 

the scope of Title IX could result in 

increased costs to recipients, especially 

those recipients that limited the 

application of their Title IX policies to 

those forms of conduct explicitly 

referenced in the current regulations, 

the Department believes that the nonmonetary benefits of providing clarity 

and recognizing the broad scope of Title 

IX’s protections outweighs the costs 

associated with the implementation of 

these robust protections. 

Clarification of the Geographic Scope of 

Title IX’s Prohibition on Sex 

Discrimination 

The Department also considered 

retaining the current regulations’ scope 

of coverage with respect to conduct that 

occurs off-campus and off school 

grounds. Numerous stakeholders in 

OCR’s June 2021 Title IX Public 

Hearing, OCR’s listening sessions, and 

the meetings held in 2022 under 

Executive Order 12866 requested that 

the Department explicitly include 

additional instances of off-campus 

conduct within the scope of its 

proposed regulations. Specifically, these 

stakeholders commented that excluding 

such conduct denied students, 

employees, and others equal access to a 

recipient’s education program or 

activity and failed to fully implement 

Title IX. As explained in greater detail 

in the discussion of investigations and 

adjudications in Cost Estimates (Section 

4.C), the Department acknowledges the 

potential cost increase for a recipient in 

addressing discrimination that occurs 

off-campus and also in addressing a 

hostile environment within the 

recipient’s education program or 

activity that arises in part from sexbased harassment that occurs offcampus. However, the Department 

expects that many recipients are already 

addressing such conduct and incurring 

related costs through their creation and 

implementation of alternative 

disciplinary proceedings to address 

discriminatory conduct previously 

addressed through their Title IX 

procedures prior to the current 

regulations. Moreover, the Department 

now believes that the conduct excluded 

from the current regulations may have 

profound and long-lasting economic 

impacts on students, employees, a 

recipient’s educational environment, 

and the general public and that the 

benefits of addressing this conduct 

through the proposed regulations far 

outweighs any associated costs. 

Distinguishing Between Educational 

Levels 

The Department also considered 

whether to distinguish between 

educational levels in the proposed 

regulations. Specifically, during the 

June 2021 Title IX Public Hearing, in 

listening sessions, and during the 

meetings held in 2022 under Executive 

Order 12866, stakeholders associated 

with LEAs expressed concerns that 

certain requirements in the current 

regulations impeded their ability to 

successfully address sexual harassment 

in their day-to-day school environment. 

Likewise, the Department considered 

whether all students and employees 

should remain subject to identical 

regulations or whether, for the reasons 

set out in the preamble, equitable 

treatment under Title IX would be best 

ensured by amending the regulations in 

ways that require IHEs to be responsive 

to the unique needs of their students. 

For reasons explained in the discussions 

of Benefits of the Proposed Regulations 

(Section 3) and Costs of the Proposed 

Regulations (Section 4), the Department 

is unable to quantify the benefits or 

costs of enabling recipients to adapt 

equitable grievance procedures to their 

educational environment; however, as 

discussed throughout the preamble, the 

Department believes that not doing so 

would result in continuing impediments 

to full implementation of Title IX’s 

nondiscrimination guarantee. 

Alternatively, the Department believes 

that the proposed regulations create the 

benefit of enabling all recipients to 

respond promptly and equitably to sex 

discrimination in their program or 

activity, remedy that discrimination as 

appropriate, and increase access and the 

opportunity to participate free from sex 

discrimination. 

6. Accounting Statement 

As required by OMB Circular A–4, the 

following table is the Department’s 

accounting statement showing the 

classification of the expenditures 

associated with the provisions of the 

proposed regulations. This table 

provides the Department’s best estimate 

of the changes in annual monetized 

costs, benefits, and transfers as a result 

of the proposed regulations. 

Category Benefits (calculated on an 

annual basis) 

Address gaps in coverage in current regulations ..................................................................................................................................... Not quantified 

Clarify scope of Title IX’s protection ......................................................................................................................................................... Not quantified 

Clarify responsibilities toward students who are experiencing pregnancy or related conditions ............................................................. Not quantified 


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Category Benefits (calculated on an 

annual basis) 

Costs (calculated on an annual 

basis) 

3% 7% 

Reading and Understanding the Regulations ........................................................................................................................................... $2,811,001 $3,286,360 

Policy Revisions ........................................................................................................................................................................................ 4,782,718 5,591,508 

Publishing Notice of Nondiscrimination ..................................................................................................................................................... 236,894 276,955 

Training of Title IX Coordinators ............................................................................................................................................................... 2,770,531 2,818,407 

Updating Training Materials ...................................................................................................................................................................... 2,264,868 2,647,873 

Supportive Measures ................................................................................................................................................................................ 6,996,204 6,996,204 

Group A Investigations .............................................................................................................................................................................. 2,741,547 2,741,547 

Group B Investigations .............................................................................................................................................................................. (66,106,747) (66,106,747) 

Appeal Process ......................................................................................................................................................................................... 21,084,353 21,084,353 

Informal Resolutions .................................................................................................................................................................................. 12,830,088 12,830,088 

Creation and Maintenance of Documentation .......................................................................................................................................... 6,425,456 6,761,161 

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 the 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 (grouping and order of 

sections, use of headings, paragraphing, 

etc.) aid or reduce their clarity? 

• Would the proposed regulations be 

easier to understand if the Department 

divided them into more (but shorter) 

sections? (A ‘‘section’’ is preceded by 

the symbol ‘‘§’’ and a numbered 

heading; for example, is § 106.8 

Designation of coordinator, adoption 

and publication of nondiscrimination 

policy and grievance procedures, notice 

of nondiscrimination, training, and 

recordkeeping.) 

• 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? 

• What else could the Department do 

to make the proposed regulations easier 

to understand? 

To send any comments that concern 

how the Department could make the 

proposed regulations easier to 

understand, see the instructions in the 

ADDRESSES section of the preamble. 

Regulatory Flexibility Act (Small 

Business Impacts) 

1. Introduction 

This analysis, required by the 

Regulatory Flexibility Act (RFA), 

presents an estimate of the effect of the 

proposed regulations on small entities. 

The U.S. Small Business Administration 

(SBA) Size Standards define 

‘‘proprietary IHEs’’ 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 LEAs’’ are defined as small 

organizations if they are operated by a 

government overseeing a population 

below 50,000. 

2. Initial Regulatory Flexibility Analysis 

As explained in the discussion of 

Lack of Data Following the 

Promulgation of the 2020 Amendments 

(Section 4.A.3) of the RIA, there is a lack 

of high quality, comprehensive data 

about recipients’ Title IX compliance 

activities and burdens following the 

implementation of the 2020 

amendments. As a result, the 

Department could not definitively 

conclude that burdens on small entities, 

particularly among recipients other than 

IHEs or LEAs, would be sufficiently low 

to justify certification under the RFA. If 

an agency is unable to make such a 

certification, it must prepare an Initial 

Regulatory Flexibility Analysis (IRFA) 

as described in the RFA. Based on the 

data available, the Department has 

completed an IRFA and requests 

comments from affected small entities. 

The purpose of this analysis is to 

identify the number of small entities 

affected, assess the economic impact of 

the proposed regulations on those small 

entities, and consider alternatives that 

may be less burdensome to small 

entities that meet the Department’s 

regulatory objectives. Specifically, the 

Department estimates the number of 

small entities potentially impacted by 

the proposed regulations in the 

discussion of Estimated Number of 

Small Entities (Section 2.B), assesses the 

potential economic impact of the 

proposed regulations on those small 

entities in the discussion of Estimate of 

the Projected Burden of the Proposed 

Regulations on Small Entities (Section 

2.C), and examines and considers less 

burdensome alternatives to the 

proposed regulations for small entities 

in the Discussion of Significant 

Alternatives (Section 2.D). The 

Department requests comment on the 

burdens currently faced by small 

entities in complying with the 2020 

amendments and likely changes to that 

burden as a result of the proposed 

regulations, including the total number 

of Title IX investigations conducted 

each year by small entities and the 

extent to which the burden assumptions 

described in the RIA are reasonable for 

small entities (i.e., whether particular 

activities are likely to take more or less 

time or cost more or less than otherwise 

estimated). 

2.A. Reasons for Regulating 

The Department’s review of the 

current regulations and of feedback 

received during and pursuant to the 

June 2021 Title IX Public Hearing, as 

well as listening sessions and meetings 

held in 2022 under Executive Order 

12866, suggests that the current 

regulations do not best fulfill the 

requirement of Title IX that recipients of 

Federal financial assistance eliminate 

discrimination based on sex in their 

education programs or activities. The 

Department has determined that more 

clarity and greater specificity would 

better equip recipients to create and 

maintain school environments free from 

sex discrimination. This, in turn, will 

help recipients ensure that all persons 

have equal access to educational 

opportunities in accordance with Title 

IX’s nondiscrimination mandate. 

The goal of the Department’s 

proposed regulations is to fully 

effectuate Title IX by clarifying and 

specifying the scope and application of 

Title IX protections and recipients’ 

obligation not to discriminate based on 


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34Based on data reported for FY 2020 for ‘‘total 

revenue and other additions’’ for public institutions 

and ‘‘total revenues and investment return’’ for 

private not-for-profit and private for-profit 

institutions. 

sex. Specifically, the proposed 

regulations focus on ensuring that 

recipients prevent and address sex 

discrimination, including but not 

limited to sex-based harassment, in their 

education programs or activities; 

clarifying the scope of Title IX’s 

protection for students and others who 

are participating or attempting to 

participate in a recipient’s education 

program or activity; defining important 

terms related to a recipient’s obligations 

under Title IX; ensuring the provision of 

supportive measures, as appropriate to 

restore or preserve a complainant’s or 

respondent’s access to the recipient’s 

education program or activity; clarifying 

a recipient’s responsibilities toward 

students who are pregnant or 

experiencing pregnancy-related 

conditions; and clarifying that Title IX’s 

prohibition on sex discrimination 

encompasses discrimination based on 

sex stereotypes, sex characteristics, 

pregnancy or related conditions, sexual 

orientation, and gender identity. In 

addressing confusion about coverage of 

sex-based harassment in the current 

regulations, the Department’s proposed 

regulations also set out requirements 

that enable recipients to meet their 

obligations in settings that vary in size, 

student populations, and administrative 

structure. The proposed regulatory 

action would strengthen the current 

framework, clarify the scope and 

application of Title IX, and fully align 

the Title IX regulations with the 

nondiscrimination mandate of Title IX. 

2.B. Estimated Number of Small Entities 

As in the 2020 amendments (85 FR 

30026), for purposes of assessing the 

impacts on small entities, the 

Department proposes defining a ‘‘small 

IHE’’ as a two-year IHE with an 

enrollment of fewer than 500 full time 

equivalent (FTE) or a four-year IHE with 

an enrollment of fewer than 1,000 FTE. 

The Department also proposes defining 

a ‘‘small LEA’’ as an LEA with annual 

revenues of less than $7,000,000. 

During the 2020–2021 school year, of 

the 6,165 Title IV participating IHEs for 

which sufficient data are available, 

2,803 were four-year institutions, 1,644 

were two-year institutions, and 1,718 

were less-than-two-year institutions. Of 

those, 1,226 four-year institutions, 690 

two-year institutions, and 1,650 lessthan-two-year institutions met the 

Department’s proposed definition of a 

‘‘small IHE.’’ 

TABLE 1—NUMBER OF SMALL IHES, FALL 2020 

Four-year Two-year Less than 

two-year Total 

Not Small ......................................................................................................... 1,577 954 68 2,599 

Small ................................................................................................................ 1,226 690 1,650 3,566 

Total .......................................................................................................... 2,803 1,644 1,718 6,165 

During the 2018–2019 school year, 

6,518 of the 17,798 LEAs with available 

revenue data met the Department’s 

proposed definition of a ‘‘small LEA.’’ 

The Department does not have 

comprehensive revenue data for other 

recipients in order to estimate the 

number of entities that would meet the 

applicable SBA size standards. The 

Department therefore requests comment 

on the number of other recipients 

affected by these proposed regulations 

that meet these standards. 

TABLE 2—NUMBER OF SMALL LEAS, 

FALL 2018 

LEAs 

Not Small .............................. 11,280 

Small ..................................... 6,518 

Total ............................... 17,798 

2.C. Estimate of the Projected Burden of 

the Proposed Regulations on Small 

Entities 

As discussed throughout the RIA, 

Group A institutions are those most 

likely to see a net cost increase from the 

proposed regulations. As such, a Group 

A IHE would fare worse than an IHE in 

Group B or Group C. As described in the 

discussion of Developing the Model 

(Section 4.B), an IHE in Group A would 

see a net increase in costs of 

approximately $8,986 per year. For 

purposes of assessing the impacts on 

small entities, the Department proposes 

defining a ‘‘small IHE’’ as a two-year 

IHE with an enrollment of less than 500 

FTE or a four-year IHE with an 

enrollment of less than 1,000 FTE, based 

on official 2020 FTE enrollment. The 

Department notes that this estimate 

assumes that each small IHE would 

conduct the same number of 

investigations per year, on average, as 

the total universe of all affected IHEs. 

The Department believes it is much 

more likely that small IHEs will conduct 

fewer investigations per year and 

therefore, their actual realized costs will 

be less than those estimated herein. 

According to data from the Integrated 

Postsecondary Education Data System 

(IPEDS), in FY 2019, small IHEs had, on 

average, total revenues of approximately 

$10,349,540.34 Therefore, the 

Department estimates that the proposed 

regulations could generate a net cost for 

small IHEs equal to approximately 0.08 

percent of annual revenue. According to 

data from IPEDS, approximately 175 

IHEs had total reported annual revenues 

of less than $900,000, for which the 

costs estimated above would potentially 

exceed 1 percent of total revenues. 

Those IHEs enrolled, on average, 36 

students in Fall 2020. For institutions of 

this size, the Department currently 

believes it would be highly unlikely for 

the recipient to conduct 6.3 

investigations per year, which would 

represent a rate of investigations 

approximately 18 times higher than all 

other institutions, on average. The 

Department therefore does not 

anticipate that the proposed regulations 

would place a substantial burden on 

small IHEs. 

As in the 2020 amendments, for 

purposes of assessing the impacts on 

small entities, the Department proposes 

defining a ‘‘small LEA’’ as one with 

annual revenues of less than $7,000,000. 

Based on the model described in the 

discussion of Developing the Model 

(Section 4.B), an LEA in Group A would 

see a net increase in costs of 

approximately $1,761 per year. The 

Department notes that these estimates 

assume small LEAs conduct the same 

number of investigations per year, on 

average, as all other LEAs. To the extent 

that smaller LEAs conduct fewer 

investigations, on average, than all 

LEAs, these annual costs will be 

overestimated for small LEAs. In 2018– 

2019, small LEAs had an average total 

revenue of approximately $3,450,911. 


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35Executive Order on Leadership and 

Coordination of Nondiscrimination Laws, Exec. 

Order. No. 12250, 45 FR 72995 (Nov. 4, 1980), 

https://tile.loc.gov/storage-services/service/ll/ 

fedreg/fr045/fr045215/fr045215.pdf. 

Therefore, the Department estimates 

that the proposed regulations could 

generate a net cost for small LEAs of 

approximately 0.05 percent of total 

revenues. According to data from the 

National Center for Education Statistics, 

in 2018–2019, 123 LEAs had total 

revenues of less than $1,760,000, for 

which the estimated costs would 

potentially exceed 1 percent of total 

revenues. Those LEAs enrolled, on 

average, 35 students each in the 2018– 

2019 school year. For LEAs of this size, 

the Department currently believes it 

would be highly unlikely for the 

recipient to conduct 3.6 investigations 

per year, which would represent a rate 

of investigations approximately 80 times 

higher than all other LEAs, on average. 

The Department, therefore, does not 

anticipate that these proposed 

regulations would place a substantial 

burden on small LEAs. 

As described in the discussion of 

Developing the Model (Section 4.B), an 

‘‘other’’ recipient in Group A would see 

a net increase in costs of approximately 

$3,090 per year. As explained in the 

discussion of small IHEs and small 

LEAs, the Department notes that these 

estimates assume small other entities 

would conduct the same number of 

investigations per year, on average, as 

all other recipients in this category. To 

the extent that smaller entities conduct 

fewer investigations on average than all 

other recipients, these annual costs will 

be overestimated for small other 

recipients. Although the Department 

does not have revenue data for all other 

recipients, for purposes of this analysis, 

the Department will assume that, among 

other recipients with annual revenues of 

less than $7,000,000, the average annual 

revenue is approximately $3,500,000, 

which assumes that recipient revenues 

are normally distributed within the 

range of $0 to $7,000,000. At this level, 

the estimated cost would constitute 

approximately 0.09 percent of total 

revenues. The Department notes that, 

for estimated costs to exceed 1 percent 

of total revenues, ‘‘other’’ recipients 

would need total annual revenues of 

less than $309,000. The Department 

believes that very few other recipients 

would fall into this category, in part, 

because in FY 2020, among other 

recipients receiving less than $1,000,000 

in grant funds from the Department, the 

average grantee received approximately 

$377,000 in Federal grant funds. Among 

those receiving less than $500,000 in 

funding from the Department, the 

average other recipient received 

approximately $287,000 in grant funds 

in FY 2020. Even with very small 

amounts of non-Federal funding, it is 

unlikely that costs of compliance with 

these proposed regulations would 

exceed 1 percent of annual revenues for 

these recipients. The Department, 

therefore, does not expect that these 

proposed regulations would place a 

substantial burden on small other 

recipients. 

The Department requests comment on 

any additional burdens for small 

entities. The Department also requests 

comment on whether small entities may 

discontinue their Federal funding due to 

the impacts of the proposed regulations. 

2.D. Discussion of Significant 

Alternatives 

The Department also considered 

alternatives that could potentially 

reduce the burden for small entities. 

One alternative would be to extend the 

effective date of the Title IX regulations 

for small entities such that they would 

have additional time to implement key 

components of the regulations. 

However, it would be premature for the 

Department to consider an extension at 

this juncture because no regulatory 

compliance date has been set. In 

addition, an extension of the effective 

date would delay the efforts of small 

entities to ensure that their education 

programs or activities are free from sex 

discrimination, thereby depriving 

students, employees, and others of their 

rights under Title IX. Another 

alternative would be to waive certain 

requirements for small entities to help 

facilitate their compliance with Title IX. 

The Department declines this approach 

at this time because the proposed 

requirements are critical to ensuring 

that all education programs or activities 

that receive Federal funding do not 

discriminate based on sex. In addition, 

the proposed regulations are more 

adaptable than the current regulations 

and would provide greater opportunities 

for small entities to tailor their 

compliance efforts to their particular 

settings. Finally, the Department 

considered proposing different 

requirements for smaller-sized 

recipients than for mid-sized or larger 

ones. The Department rejects this 

alternative at this time because the Title 

IX rights of students, employees, and 

other members of a recipient’s 

educational community do not depend 

on the size of a recipient, and the 

proposed regulations are sufficiently 

adaptable for small entities to adopt the 

approach that works best for them. 

Being subjected to sex discrimination in 

a recipient’s education program or 

activity can affect an applicant’s 

opportunity to enroll in a recipient’s 

education program or activity, a 

student’s ability to learn and thrive in 

and outside of the classroom, a 

prospective or current employee’s 

ability to contribute their talents to the 

recipient’s educational mission, and the 

opportunity of all participants to 

benefit, on an equal basis, from the 

recipient’s education program or 

activity. Thus, permitting a small entity 

the opportunity to delay 

implementation of the proposed 

regulations, waiving certain 

requirements for smaller entities, or 

having different requirements for small 

entities could jeopardize these 

important civil rights and harm 

students, employees, and others. The 

Department requests comment on the 

extent to which the Department’s 

rationale for not adopting each of the 

alternatives discussed in this section is 

reasonable and whether there are 

additional alternatives for reducing 

burden on small entities without 

frustrating the purpose of the proposed 

regulations. 

Executive Order 12250 on Leadership 

and Coordination of Nondiscrimination 

Laws 

Under Executive Order 12250, the 

Attorney General has the responsibility 

to ‘‘review . . . proposed rules . . . of 

the Executive agencies’’ implementing 

nondiscrimination statutes such as Title 

IX ‘‘in order to identify those which are 

inadequate, unclear or unnecessarily 

inconsistent.’’ 35 The Attorney General 

has delegated that function to the 

Assistant Attorney General for the Civil 

Rights Division for purposes of 

reviewing and approving proposed 

rules, 28 CFR 0.51, and the Assistant 

Attorney General has reviewed and 

approved this proposed rule. 

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: (1) the 

public understands the Department’s 

collection instructions; (2) respondents 

can provide the requested data in the 

desired format; (3) reporting burden 

(time and financial resources) is 

minimized; (4) collection instruments 

are clearly understood; and (5) the 

Department can properly assess the 


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impact of collection requirements on 

respondents. 

As discussed in Cost Estimates 

(Section 4.C.), the Department estimates 

that all regulated entities would 

experience an increased recordkeeping 

burden under the proposed regulations 

as a result of the proposed changes to 

recordkeeping requirements in proposed 

§ 106.8(f). Specifically, in Year 1, the 

Department estimates that compliance 

would require an additional 4 hours of 

recordkeeping burden per LEA, 16 

hours per IHE, and 4 hours per other 

recipient. In total, the Department 

estimates the Year 1 recordkeeping 

burden associated with the proposed 

regulations to be a net increase of 

171,788 hours. 

In subsequent years, the Department 

estimates that the proposed regulations 

would require an additional ongoing 

burden of 2 hours per LEA, 6 hours per 

IHE, and 2 hours per other recipient. In 

total, the Department estimates an 

ongoing annual recordkeeping burden 

increase of 72,586 hours. However, the 

Department’s current view is that 

proposed § 106.8(f) will not result in a 

change of disclosure requirements. 

Specifically, there are three main 

reasons for this assumption: (1) 

recipients were already required to 

maintain all records related to sexual 

harassment under the current 

regulations; (2) many recipients (based 

on anecdotal reports) were already 

conducting and maintaining records 

related to alternative disciplinary 

proceedings addressing conduct outside 

of the coverage area of the current 

regulations; and (3) based upon 

anecdotal reports, many recipients were 

already maintaining their records 

related to sex discrimination. As a 

result, the Department believes that 

recipients falling within one or more of 

these categories would experience a de 

minimis increase in the number of 

disclosures. 

Regulatory 

section Information collection OMB control number and estimated change in burden 

106.8(f) ............. This regulatory provision requires a recipient to maintain certain documentation related to Title IX activities.OMB 1870–NEW Changes would increase burden over the 

first seven years by $45,712,498 382, 168 hours. 

The Department prepared an 

Information Collection Request (ICR) for 

this collection. This proposed collection 

is identified as proposed collection 

OMB control number 1870–NEW. If you 

would like to review and comment on 

the ICR, please follow the instructions 

listed below in this section of this 

document. Please note that the Office of 

Information and Regulatory Affairs 

(OIRA) and the Department of 

Education review all comments posted 

at http://www.regulations.gov. 

When commenting on the information 

collection requirements, the Department 

considers 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 the 

Department collects; and 

• Minimizing the burden on those 

who must respond, which includes 

exploring the use of appropriate 

automated, electronic, mechanical, or 

other technological collection 

techniques. 

Comments submitted in response to 

this document should be submitted 

electronically through the Federal 

eRulemaking Portal http://

www.regulations.gov by selecting 

Docket ID Number ED–2021–OCR–0166. 

Please specify the Docket ID number 

and indicate ‘‘Information Collection 

Comments’’ if your comment(s) relate to 

the information collection for the 

proposed regulations. If you need 

further information, email 

ICDocketMgr@ed.gov. 

Consistent with 5 CFR 1320.8(d), the 

Department is soliciting comments on 

the information collection through this 

document. OMB is required to make a 

decision concerning the collections of 

information contained in the proposed 

regulations between 30 and 60 days 

after publication of this document in the 

Federal Register. Therefore, to ensure 

that OMB gives your comments full 

consideration, it is important that OMB 

receives your comments by August 11, 

2022. This does not affect the deadline 

for your comments to us on the 

proposed regulations. However if you 

require an accommodation, cannot 

otherwise request information, or 

cannot submit your comments 

electronically, please submit requests 

for information or your ICR comments 

to Strategic Collections and Clearance 

Director, U.S. Department of Education, 

400 Maryland Avenue SW, LBJ Room 

6W201, Washington, DC 20202–8240. 

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. 1221e–4, the Secretary 

particularly requests comments on 

whether the 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 the Department 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, including §§ 106.6, 106.8, 

106.31, 106.40, 106.44, 106.45, 106.46, 

and 106.57 may have federalism 

implications. The Department 

encourages State and local elected 

officials to review and provide 

comments on the proposed regulations. 

Accessible Format: On request to the 

program contact person listed under FOR

FURTHER INFORMATION CONTACT, 

individuals with disabilities can obtain 

this document in an accessible format. 

The Department will provide the 

requestor with an accessible format that 

may include Rich Text Format (RTF) or 

text format (txt), a thumb drive, an MP3 

file, braille, large print, audiotape, or 

compact disc, or other accessible format. 

Electronic Access to This Document: 

The official version of this document is 

the document published in the Federal 

Register. You may access the official 

edition of the Federal Register and the 

Code of Federal Regulations at http://

www.govinfo.gov. At this site you can 

view this document, as well as all other 

documents of this Department 

published in the Federal Register, in 

text or Adobe Portable Document 

Format (PDF). To use PDF you must 


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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: http://

www.federalregister.gov. Specifically, 

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 

Civil rights, Education, Sex 

discrimination, Youth organizations. 

Miguel A. Cardona, 

Secretary of Education. 

For the reasons discussed in the 

preamble, the Department of Education 

proposes to revise 34 CFR part 106 to 

read 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 106.1 is revised to read as 

follows: 

§ 106.1 Purpose. 

The purpose of this part is to 

effectuate Title IX, which is designed to 

eliminate (with certain exceptions) 

discrimination on the basis of sex in any 

education program or activity receiving 

Federal financial assistance, whether or 

not such program or activity is offered 

or sponsored by an educational 

institution as defined in this part. This 

part is also intended to effectuate 

section 844 of the Education 

Amendments of 1974, Public Law 93– 

380, 88 Stat. 484. 

■ 3. Section 106.2 is revised to read as 

follows: 

§ 106.2 Definitions. 

As used in this part, the term: 

Administrative law judge means a 

person appointed by the reviewing 

authority to preside over a hearing held 

under § 106.81. 

Administratively separate unit means 

a school, department, or college of an 

educational institution (other than a 

local educational agency) admission to 

which is independent of admission to 

any other component of such 

institution. 

Admission means selection for parttime, full-time, special, associate, 

transfer, exchange, or any other 

enrollment, membership, or 

matriculation in or at an education 

program or activity operated by a 

recipient. 

Applicant, as used in the definition of 

educational institution in this section 

and as used in § 106.4, means one who 

submits an application, request, or plan 

required to be approved by a 

Department official, or by a recipient, as 

a condition to becoming a recipient. 

Assistant Secretary means the 

Assistant Secretary for Civil Rights of 

the Department. 

Complainant means: 

(1) A student or employee who is 

alleged to have been subjected to 

conduct that could constitute sex 

discrimination under Title IX; or 

(2) A person other than a student or 

employee who is alleged to have been 

subjected to conduct that could 

constitute sex discrimination under 

Title IX and who was participating or 

attempting to participate in the 

recipient’s education program or 

activity when the alleged sex 

discrimination occurred. 

Complaint means an oral or written 

request to the recipient to initiate the 

recipient’s grievance procedures as 

described in § 106.45, and if applicable 

§ 106.46. 

Confidential employee means: 

(1) An employee of a recipient whose 

communications are privileged under 

Federal or State law associated with 

their role or duties for the institution; 

(2) An employee of a recipient whom 

the recipient has designated as a 

confidential resource for the purpose of 

providing services to persons in 

connection with sex discrimination— 

but if the employee also has a role or 

duty not associated with providing 

these services, the employee’s status as 

confidential is limited to information 

received about sex discrimination in 

connection with providing these 

services; or 

(3) An employee of a postsecondary 

institution who is conducting an 

Institutional Review Board-approved 

human-subjects research study designed 

to gather information about sex 

discrimination—but the employee’s 

confidential status is limited to 

information received while conducting 

the study. 

Department means the Department of 

Education. 

Disciplinary sanctions means 

consequences imposed on a respondent 

following a determination that the 

respondent violated the recipient’s 

prohibition on sex discrimination. 

Educational institution means a local 

educational agency (LEA) as defined by 

section 8101 of the Elementary and 

Secondary Education Act of 1965, as 

amended by the Every Student Succeeds 

Act (20 U.S.C. 7801(30)), a preschool, a 

private elementary or secondary school, 

or an applicant or recipient that is an 

institution of graduate higher education, 

an institution of undergraduate higher 

education, an institution of professional 

education, or an institution of 

vocational education. 

Elementary school means elementary 

school as defined by section 8101 of the 

Elementary and Secondary Education 

Act of 1965, as amended by the Every 

Student Succeeds Act (20 U.S.C. 

7801(19)), and a public or private 

preschool. 

Federal financial assistance means 

any of the following, when authorized 

or extended under a law administered 

by the Department: 

(1) A grant or loan of Federal financial 

assistance, including funds made 

available for: 

(i) The acquisition, construction, 

renovation, restoration, or repair of a 

building or facility or any portion 

thereof; and 

(ii) Scholarships, loans, grants, wages 

or other funds extended to any entity for 

payment to or on behalf of students 

admitted to that entity, or extended 

directly to such students for payment to 

that entity. 

(2) A grant of Federal real or personal 

property or any interest therein, 

including surplus property, and the 

proceeds of the sale or transfer of such 

property, if the Federal share of the fair 

market value of the property is not, 

upon such sale or transfer, properly 

accounted for to the Federal 

Government. 

(3) Provision of the services of Federal 

personnel. 

(4) Sale or lease of Federal property or 

any interest therein at nominal 

consideration, or at consideration 

reduced for the purpose of assisting the 

recipient or in recognition of public 

interest to be served thereby, or 

permission to use Federal property or 

any interest therein without 

consideration. 

(5) Any other contract, agreement, or 

arrangement which has as one of its 

purposes the provision of assistance to 

any education program or activity, 

except a contract of insurance or 

guaranty. 

Institution of graduate higher 

education means an institution which: 

(1) Offers academic study beyond the 

bachelor of arts or bachelor of science 

degree, whether or not leading to a 

certificate of any higher degree in the 

liberal arts and sciences; or 

(2) Awards any degree in a 

professional field beyond the first 


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professional degree (regardless of 

whether the first professional degree in 

such field is awarded by an institution 

of undergraduate higher education or 

professional education); or 

(3) Awards no degree and offers no 

further academic study, but operates 

ordinarily for the purpose of facilitating 

research by persons who have received 

the highest graduate degree in any field 

of study. 

Institution of undergraduate higher 

education means: 

(1) An institution offering at least two 

but less than four years of college level 

study beyond the high school level, 

leading to a diploma or an associate 

degree, or wholly or principally 

creditable toward a baccalaureate 

degree; or 

(2) An institution offering academic 

study leading to a baccalaureate degree; 

or 

(3) An agency or body which certifies 

credentials or offers degrees, but which 

may or may not offer academic study. 

Institution of professional education 

means an institution (except any 

institution of undergraduate higher 

education) which offers a program of 

academic study that leads to a first 

professional degree in a field for which 

there is a national specialized 

accrediting agency recognized by the 

Secretary. 

Institution of vocational education 

means a school or institution (except an 

institution of professional or graduate or 

undergraduate higher education) which 

has as its primary purpose preparation 

of students to pursue a technical, 

skilled, or semiskilled occupation or 

trade, or to pursue study in a technical 

field, whether or not the school or 

institution offers certificates, diplomas, 

or degrees and whether or not it offers 

fulltime study. 

Parental status, as used in 

§§ 106.21(c)(2)(i), 106.37(a)(3), 

106.40(a), and 106.57(a)(1), means the 

status of a person who, with respect to 

another person who is under the age of 

18 or who is 18 or older but is incapable 

of self-care because of a physical or 

mental disability, is: 

(1) A biological parent; 

(2) An adoptive parent; 

(3) A foster parent; 

(4) A stepparent; 

(5) A legal custodian or guardian; 

(6) In loco parentis with respect to 

such a person; or 

(7) Actively seeking legal custody, 

guardianship, visitation, or adoption of 

such a person. 

Peer retaliation means retaliation by a 

student against another student. 

Postsecondary institution means an 

institution of graduate higher education, 

an institution of undergraduate higher 

education, an institution of professional 

education, or an institution of 

vocational education that serves 

postsecondary school students. 

Pregnancy or related conditions 

means: 

(1) Pregnancy, childbirth, termination 

of pregnancy, or lactation; 

(2) Medical conditions related to 

pregnancy, childbirth, termination of 

pregnancy, or lactation; or 

(3) Recovery from pregnancy, 

childbirth, termination of pregnancy, 

lactation, or their related medical 

conditions. 

Program or activity and program 

means all of the operations of— 

(1)(i) A department, agency, special 

purpose district, or other 

instrumentality of a State or local 

government; or 

(ii) The entity of a State or local 

government that distributes such 

assistance and each such department or 

agency (and each other State or local 

government entity) to which the 

assistance is extended, in the case of 

assistance to a State or local 

government; 

(2)(i) A college, university, or other 

postsecondary institution, or a public 

system of higher education; or 

(ii) A local educational agency (as 

defined in 20 U.S.C. 8801), system of 

vocational education, or other school 

system; 

(3)(i) An entire corporation, 

partnership, other private organization, 

or an entire sole proprietorship— 

(A) If assistance is extended to such 

corporation, partnership, private 

organization, or sole proprietorship as a 

whole; or 

(B) Which is principally engaged in 

the business of providing education, 

health care, housing, social services, or 

parks and recreation; or 

(ii) The entire plant or other 

comparable, geographically separate 

facility to which Federal financial 

assistance is extended, in the case of 

any other corporation, partnership, 

private organization, or sole 

proprietorship; or 

(4) Any other entity that is established 

by two or more of the entities described 

in paragraph (1), (2), or (3) of this 

definition, any part of which is 

extended Federal financial assistance. 

Recipient means any State or political 

subdivision thereof, or any 

instrumentality of a State or political 

subdivision thereof, any public or 

private agency, institution, or 

organization, or other entity, or any 

person, to whom Federal financial 

assistance is extended directly or 

through another recipient and which 

operates an education program or 

activity which receives such assistance, 

including any subunit, successor, 

assignee, or transferee thereof. 

Relevant means related to the 

allegations of sex discrimination under 

investigation as part of the grievance 

procedures under § 106.45, and if 

applicable § 106.46. Questions are 

relevant when they seek evidence that 

may aid in showing whether the alleged 

sex discrimination occurred, and 

evidence is relevant when it may aid a 

decisionmaker in determining whether 

the alleged sex discrimination occurred. 

Remedies means measures provided, 

as appropriate, to a complainant or any 

other person the recipient identifies as 

having had equal access to the 

recipient’s education program or 

activity limited or denied by sex 

discrimination. These measures are 

provided to restore or preserve that 

person’s access to the recipient’s 

education program or activity after a 

recipient determines that sex 

discrimination occurred. 

Respondent means a person who is 

alleged to have violated the recipient’s 

prohibition on sex discrimination. 

Retaliation means intimidation, 

threats, coercion, or discrimination 

against any person by a student, 

employee, person authorized by the 

recipient to provide aid, benefit, or 

service under the recipient’s education 

program or activity, or recipient for the 

purpose of interfering with any right or 

privilege secured by Title IX or this part, 

or because the person has reported 

information, made a complaint, 

testified, assisted, or participated or 

refused to participate in any manner in 

an investigation, proceeding, or hearing 

under this part, including in an informal 

resolution process under § 106.44(k), in 

grievance procedures under § 106.45, 

and if applicable § 106.46, and in any 

other appropriate steps taken by a 

recipient in response to sex 

discrimination under § 106.44(f)(6). 

Reviewing authority means that 

component of the Department delegated 

authority by the Secretary to appoint, 

and to review the decisions of, 

administrative law judges in cases 

arising under this part. 

Secondary school means secondary 

school as defined by section 8101 of the 

Elementary and Secondary Education 

Act of 1965, as amended by the Every 

Student Succeeds Act (20 U.S.C. 

7801(45)), and an institution of 

vocational education that serves 

secondary school students. 

Secretary means the Secretary of 

Education. 

Sex-based harassment prohibited by 

this part means sexual harassment, 


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harassment on the bases described in 

§ 106.10, and other conduct on the basis 

of sex that is: 

(1) Quid pro quo harassment. An 

employee, agent, or other person 

authorized by the recipient to provide 

an aid, benefit, or service under the 

recipient’s education program or 

activity explicitly or impliedly 

conditioning the provision of such an 

aid, benefit, or service on a person’s 

participation in unwelcome sexual 

conduct; 

(2) Hostile environment harassment. 

Unwelcome sex-based conduct that is 

sufficiently severe or pervasive, that, 

based on the totality of the 

circumstances and evaluated 

subjectively and objectively, denies or 

limits a person’s ability to participate in 

or benefit from the recipient’s education 

program or activity (i.e., creates a hostile 

environment). Whether a hostile 

environment has been created is a factspecific inquiry that includes 

consideration of the following: 

(i) The degree to which the conduct 

affected the complainant’s ability to 

access the recipient’s education program 

or activity; 

(ii) The type, frequency, and duration 

of the conduct; 

(iii) The parties’ ages, roles within the 

recipient’s education program or 

activity, previous interactions, and other 

factors about each party that may be 

relevant to evaluating the effects of the 

alleged unwelcome conduct; 

(iv) The location of the conduct, the 

context in which the conduct occurred, 

and the control the recipient has over 

the respondent; and 

(v) Other sex-based harassment in the 

recipient’s education program or 

activity. 

(3) Specific offenses. (i) Sexual assault 

meaning an offense classified as a 

forcible or nonforcible sex offense under 

the uniform crime reporting system of 

the Federal Bureau of Investigation; 

(ii) Dating violence meaning violence 

committed by a person who is or has 

been in a social relationship of a 

romantic or intimate nature with the 

victim; 

(iii) Domestic violence meaning 

felony or misdemeanor crimes of 

violence committed by a person who: 

(A) Is a current or former spouse or 

intimate partner of the victim under the 

family or domestic violence laws of the 

jurisdiction of the recipient, or a person 

similarly situated to a spouse of the 

victim; 

(B) Is cohabitating, or has cohabitated, 

with the victim as a spouse or intimate 

partner; 

(C) Shares a child in common with 

the victim; or 

(D) Commits acts against a youth or 

adult victim who is protected from 

those acts under the family or domestic 

violence laws of the jurisdiction; or 

(iv) Stalking meaning engaging in a 

course of conduct directed at a specific 

person that would cause a reasonable 

person to: 

(A) Fear for the person’s safety or the 

safety of others; or 

(B) Suffer substantial emotional 

distress. 

Student means a person who has 

gained admission. 

Student with a disability means a 

student who is an individual with a 

disability as defined in the 

Rehabilitation Act of 1973, as amended, 

29 U.S.C. 705(9)(B), (20)(B), or a child 

with a disability as defined in the 

Individuals with Disabilities Education 

Act, 20 U.S.C. 1401(3). 

Supportive measures means nondisciplinary, non-punitive 

individualized measures offered as 

appropriate, as reasonably available, 

without unreasonably burdening a 

party, and without fee or charge to the 

complainant or respondent to: 

(1) Restore or preserve that party’s 

access to the recipient’s education 

program or activity, including 

temporary measures that burden a 

respondent imposed for non-punitive 

and non-disciplinary reasons and that 

are designed to protect the safety of the 

complainant or the recipient’s 

educational environment, or deter the 

respondent from engaging in sex-based 

harassment; or 

(2) Provide support during the 

recipient’s grievance procedures under 

§ 106.45, and if applicable § 106.46, or 

during the informal resolution process 

under § 106.44(k). 

Title IX means Title IX of the 

Education Amendments of 1972 (Pub. L. 

92–318; 20 U.S.C. 1681, 1682, 1683, 

1685, 1686, 1687, 1688), as amended. 

§ 106.3 [Amended] 

■ 4. Section 106.3 is amended by 

removing paragraphs (c) and (d). 

■ 5. Section 106.6 is amended by: 

■ a. Revising paragraphs (b), (e), and (g). 

■ b. Removing paragraph (h). 

The revisions read as follows: 

§ 106.6 Effect of other requirements and 

preservation of rights. 

* * * * * 

(b) Effect of State or local law or other 

requirements. The obligation to comply 

with this part is not obviated or 

alleviated by any State or local law or 

other requirement. Nothing in this part 

would preempt a State or local law that 

does not conflict with this part and that 

provides greater protections against sex 

discrimination. 

* * * * * 

(e) Effect of Section 444 of General 

Education Provisions Act (GEPA)/ 

Family Educational Rights and Privacy 

Act. The obligation to comply with this 

part is not obviated or alleviated by the 

Family Educational Rights and Privacy 

Act, 20 U.S.C. 1232g, or its 

implementing regulations, 34 CFR part 

99. 

* * * * * 

(g) Exercise of rights by parents, 

guardians, or other authorized legal 

representatives. Nothing in this part 

may be read in derogation of any legal 

right of a parent, guardian, or other 

authorized legal representative to act on 

behalf of a complainant, respondent, or 

other person, subject to paragraph (e) of 

this section, including but not limited to 

making a complaint through the 

recipient’s grievance procedures for 

complaints of sex discrimination. 

■ 6. Section 106.8 is revised to read as 

follows: 

§ 106.8 Designation of coordinator, 

adoption and publication of 

nondiscrimination policy and grievance 

procedures, notice of nondiscrimination, 

training, and recordkeeping. 

(a) Designation of a Title IX 

Coordinator.—(1) Title IX Coordinator. 

Each recipient must designate and 

authorize at least one employee, referred 

to herein as the Title IX Coordinator, to 

coordinate its efforts to comply with its 

responsibilities under this part. 

(2) Delegation to designees. As 

appropriate, the recipient may assign 

one or more designees to carry out some 

of the recipient’s responsibilities for 

compliance with this part, but one Title 

IX Coordinator must retain ultimate 

oversight over those responsibilities. 

(b) Adoption and publication of 

nondiscrimination policy and grievance 

procedures.—(1) Nondiscrimination 

policy. Each recipient must adopt and 

publish a policy stating that the 

recipient does not discriminate on the 

basis of sex and prohibits sex 

discrimination in any education 

program or activity that it operates, as 

required by Title IX and this part, 

including in admission (unless subpart 

C of this part does not apply) and 

employment. 

(2) Grievance procedures. A recipient 

must adopt and publish grievance 

procedures consistent with the 

requirements of § 106.45, and if 

applicable § 106.46, that provide for the 

prompt and equitable resolution of 

complaints made by students, 

employees, or third parties who are 

participating or attempting to 


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participate in the recipient’s education 

program or activity, or by the Title IX 

Coordinator, alleging any action that 

would be prohibited by Title IX and this 

part. 

(c) Notice of nondiscrimination. A 

recipient must provide a notice of 

nondiscrimination to students; parents, 

guardians, or other authorized legal 

representatives of elementary school 

and secondary school students; 

employees; applicants for admission 

and employment; and all unions and 

professional organizations holding 

collective bargaining or professional 

agreements with the recipient. 

(1) Contents of notice of 

nondiscrimination. The notice of 

nondiscrimination must include the 

following elements: 

(i) A statement that the recipient does 

not discriminate on the basis of sex and 

prohibits sex discrimination in any 

education program or activity that it 

operates, as required by Title IX and this 

part, including in admission (unless 

subpart C of this part does not apply) 

and employment; 

(ii) A statement that inquiries about 

the application of Title IX and this part 

to the recipient may be referred to the 

recipient’s Title IX Coordinator, to the 

Office for Civil Rights, or to both; 

(iii) The name or title, office address, 

email address, and telephone number of 

the recipient’s Title IX Coordinator; 

(iv) How to locate the recipient’s 

nondiscrimination policy under 

paragraph (b)(1) of this section; and 

(v) How to report information about 

conduct that may constitute sex 

discrimination under Title IX, how to 

make a complaint of sex discrimination 

under this part, and how to locate the 

recipient’s grievance procedures under 

paragraph(b)(2) of this section, § 106.45, 

and if applicable § 106.46. 

(2) Publication of notice of 

nondiscrimination. (i) Each recipient 

must prominently include all elements 

of its notice of nondiscrimination set 

out in paragraphs (c)(1)(i) through (v) of 

this section on its website and in each 

handbook, catalog, announcement, 

bulletin, and application form that it 

makes available to persons entitled to 

notice under paragraph (c) of this 

section, or which are otherwise used in 

connection with the recruitment of 

students or employees. 

(ii) If necessary, due to the format or 

size of any publication under paragraph 

(c)(2) of this section, the recipient may 

instead comply with paragraph (c)(2) of 

this section by including in those 

publications a statement that the 

recipient prohibits sex discrimination in 

any education program or activity that 

it operates and that individuals may 

report concerns or questions to the Title 

IX Coordinator, and providing the 

location of the notice on the recipient’s 

website. 

(iii) A recipient must not use or 

distribute a publication stating that the 

recipient treats applicants, students, or 

employees differently on the basis of 

sex, except as such treatment is 

permitted by Title IX or this part. 

(d) Training. The recipient must 

ensure that the persons described below 

receive training related to their 

responsibilities as follows. This training 

must not rely on sex stereotypes. 

(1) All employees. All employees 

must be trained on: 

(i) The recipient’s obligation to 

address sex discrimination in its 

education program or activity; 

(ii) The scope of conduct that 

constitutes sex discrimination under 

this part, including the definition of sexbased harassment; and 

(iii) All applicable notification and 

information requirements under 

§§ 106.40(b)(2) and 106.44. 

(2) Investigators, decisionmakers, and 

other persons who are responsible for 

implementing the recipient’s grievance 

procedures or have the authority to 

modify or terminate supportive 

measures. In addition to the training 

requirements in paragraph (d)(1) of this 

section, all investigators, 

decisionmakers, and other persons who 

are responsible for implementing the 

recipient’s grievance procedures or have 

the authority to modify or terminate 

supportive measures under 

§ 106.44(g)(4) must be trained on the 

following topics to the extent related to 

their responsibilities: 

(i) The recipient’s obligations under 

§ 106.44; 

(ii) The recipient’s grievance 

procedures under § 106.45, and if 

applicable § 106.46; 

(iii) How to serve impartially, 

including by avoiding prejudgment of 

the facts at issue, conflicts of interest, 

and bias; and 

(iv) The meaning and application of 

the term relevant in relation to 

questions and evidence, and the types of 

evidence that are impermissible 

regardless of relevance under § 106.45, 

and if applicable § 106.46. 

(3) Facilitators of informal resolution 

process. In addition to the training 

requirements in paragraph (d)(1) of this 

section, all facilitators of an informal 

resolution process under § 106.44(k) 

must be trained on the rules and 

practices associated with the recipient’s 

informal resolution process and on how 

to serve impartially, including by 

avoiding conflicts of interest and bias. 

(4) Title IX Coordinator and 

designees. In addition to the training 

requirements in paragraphs (d)(1) 

through (3) of this section, the Title IX 

Coordinator and any designees under 

paragraph (a) of this section must be 

trained on their specific responsibilities 

under paragraph (a) of this section, 

§§ 106.40(b)(3), 106.44(f), 106.44(g), the 

recipient’s recordkeeping system and 

the requirements of paragraph (f) of this 

section, and any other training 

necessary to coordinate the recipient’s 

compliance with Title IX. 

(e) Students with disabilities. If a 

complainant or respondent is an 

elementary or secondary student with a 

disability, the Title IX Coordinator must 

consult with the student’s 

Individualized Education Program (IEP) 

team, 34 CFR 300.321, if any, or the 

group of persons responsible for the 

student’s placement decision under 34 

CFR 104.35(c) (Section 504 team), if 

any, to help ensure that the recipient 

complies with the requirements of the 

Individuals with Disabilities Education 

Act, 20 U.S.C. 1400 et seq., and Section 

504 of the Rehabilitation Act of 1973, 29 

U.S.C. 794, throughout the recipient’s 

implementation of grievance procedures 

under § 106.45, and if applicable 

§ 106.46. If a complainant or respondent 

is a postsecondary student with a 

disability, the Title IX Coordinator may 

consult, as appropriate, with the 

individual or office that the recipient 

has designated to provide support to 

students with disabilities to help 

comply with Section 504 of the 

Rehabilitation Act of 1973, 29 U.S.C. 

794. 

(f) Recordkeeping. A recipient must 

maintain for a period of at least seven 

years: 

(1) For each complaint of sex 

discrimination, records documenting 

the informal resolution process under 

§ 106.44(k) or the grievance procedures 

under § 106.45, and if applicable 

§ 106.46, and the resulting outcome. 

(2) For each incident of conduct that 

may constitute sex discrimination under 

Title IX of which the Title IX 

Coordinator was notified, records 

documenting the actions the recipient 

took to meet its obligations under 

§ 106.44. 

(3) All materials used to provide 

training under paragraph (d) of this 

section. A recipient must make these 

training materials publicly available on 

its website, or if the recipient does not 

maintain a website the recipient must 

make these materials available upon 

request for inspection by members of 

the public. 


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(4) All records documenting the 

actions the recipient took to meet its 

obligations under §§ 106.40 and 106.57. 

■ 7. Section 106.10 is added to subpart 

B to read as follows: 

§ 106.10 Scope. 

Discrimination on the basis of sex 

includes discrimination on the basis of 

sex stereotypes, sex characteristics, 

pregnancy or related conditions, sexual 

orientation, and gender identity. 

■ 8. Section 106.11 is revised to read as 

follows: 

§ 106.11 Application. 

Except as provided in this subpart, 

this part applies to every recipient and 

to all sex discrimination occurring 

under a recipient’s education program 

or activity in the United States. For 

purposes of this section, conduct that 

occurs under a recipient’s education 

program or activity includes but is not 

limited to conduct that occurs in a 

building owned or controlled by a 

student organization that is officially 

recognized by a postsecondary 

institution, and conduct that is subject 

to the recipient’s disciplinary authority. 

A recipient has an obligation to address 

a sex-based hostile environment under 

its education program or activity, even 

if sex-based harassment contributing to 

the hostile environment occurred 

outside the recipient’s education 

program or activity or outside the 

United States. 

■ 9. Section 106.15 is amended by 

revising paragraph (b) to read as follows: 

§ 106.15 Admissions. 

* * * * * 

(b) Administratively separate units. 

For purposes only of this section and 

subpart C, each administratively 

separate unit shall be deemed to be an 

educational institution. 

* * * * * 

§ 106.16 [Removed] 

■ 10. Section 106.16 is removed. 

§ 106.17 [Removed] 

■ 11. Section 106.17 is removed. 

§ 106.18 [Redesignated as § 106.16] 

■ 12. Section 106.18 is redesignated as 

§ 106.16. 

■ 13. Section 106.21 is amended by 

revising paragraphs (a) and (c) to read as 

follows: 

§ 106.21 Admissions. 

(a) Status generally. No person shall, 

on the basis of sex, be denied 

admission, or be subjected to 

discrimination in admission, by any 

recipient to which this subpart applies. 

* * * * * 

(c) Parental, family, or marital status; 

pregnancy or related conditions. In 

determining whether a person satisfies 

any policy or criterion for admission, or 

in making any offer of admission, a 

recipient to which this subpart applies: 

(1) Must treat pregnancy or related 

conditions or any temporary disability 

resulting therefrom in the same manner 

and under the same policies as any 

other temporary disability or physical 

condition; and 

(2) Must not: 

(i) Adopt or apply any policy, 

practice, or procedure concerning the 

current, potential, or past parental, 

family, or marital status of a student or 

applicant that treats persons differently 

on the basis of sex; 

(ii) Discriminate against any person 

on the basis of current, potential, or past 

pregnancy or related conditions, or 

establish or follow any policy, practice, 

or procedure that so discriminates; and 

(iii) Make pre-admission inquiry as to 

the marital status of an applicant for 

admission, including whether such 

applicant is ‘‘Miss or Mrs.’’ A recipient 

may ask an applicant to self-identify 

their sex, but only if this question is 

asked of all applicants and if the 

response is not used as a basis for 

discrimination prohibited by this part. 

§ 106.30 [Removed] 

■ 14. Section 106.30 is removed. 

■ 15. Section 106.31 is amended by 

revising paragraph (a) to read as follows: 

§ 106.31 Education programs or activities. 

(a) General. (1) Except as provided 

elsewhere in this part, no person shall, 

on the basis of sex, be excluded from 

participation in, be denied the benefits 

of, or otherwise be subjected to 

discrimination under any academic, 

extracurricular, research, occupational 

training, or other education program or 

activity operated by a recipient that 

receives Federal financial assistance. 

(2) In the limited circumstances in 

which Title IX or this part permits 

different treatment or separation on the 

basis of sex, a recipient must not carry 

out such different treatment or 

separation in a manner that 

discriminates on the basis of sex by 

subjecting a person to more than de 

minimis harm, unless otherwise 

permitted by Title IX or this part. 

Adopting a policy or engaging in a 

practice that prevents a person from 

participating in an education program or 

activity consistent with the person’s 

gender identity subjects a person to 

more than de minimis harm on the basis 

of sex. 

(3) This subpart does not apply to 

actions of a recipient in connection with 

admission of its students to an 

education program or activity of: 

(i) A recipient to which subpart C 

does not apply; or 

(ii) An entity, not a recipient, to 

which subpart C would not apply if the 

entity were a recipient. 

* * * * * 

■ 16. Section 106.40 is revised to read 

as follows: 

§ 106.40 Parental, family, or marital status; 

pregnancy or related conditions. 

(a) Status generally. A recipient must 

not adopt or apply any policy, practice, 

or procedure concerning a student’s 

current, potential, or past parental, 

family, or marital status that treats 

students differently on the basis of sex. 

(b) Pregnancy or related conditions.— 

(1) Nondiscrimination. A recipient must 

not discriminate in its education 

program or activity against any student 

based on the student’s current, 

potential, or past pregnancy or related 

conditions. A recipient may permit a 

student based on pregnancy or related 

conditions to participate voluntarily in 

a separate portion of its education 

program or activity provided the 

recipient ensures that the separate 

portion is comparable to that offered to 

students who are not pregnant and do 

not have related conditions. 

(2) Requirement for recipient to 

provide information. A recipient must 

ensure that when any employee is 

informed of a student’s pregnancy or 

related conditions by the student or a 

person who has a legal right to act on 

behalf of the student, the employee 

promptly informs that person of how 

the person may notify the Title IX 

Coordinator of the student’s pregnancy 

or related conditions for assistance and 

provides contact information for the 

Title IX Coordinator, unless the 

employee reasonably believes the Title 

IX Coordinator has already been 

notified. 

(3) Specific actions to prevent 

discrimination and ensure equal access. 

Once a student, or a person who has a 

legal right to act on behalf of the 

student, notifies the Title IX 

Coordinator of the student’s pregnancy 

or related conditions, the Title IX 

Coordinator must promptly: 

(i) Inform the student, and if 

applicable the person who notified the 

Title IX Coordinator, of the recipient’s 

obligations to: 

(A) Prohibit sex discrimination under 

this part, including sex-based 

harassment; 

(B) Provide the student with the 

option of reasonable modifications to 

the recipient’s policies, practices, or 

procedures because of pregnancy or 


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related conditions, under paragraphs 

(b)(3)(ii) and (b)(4) of this section; 

(C) Allow access, on a voluntary basis, 

to any separate and comparable portion 

of the recipient’s education program or 

activity under paragraph (b)(1) of this 

section; 

(D) Allow a voluntary leave of 

absence under paragraph (b)(3)(iii) of 

this section; 

(E) Ensure the availability of lactation 

space under paragraph (b)(3)(iv) of this 

section; and 

(F) Maintain grievance procedures 

that provide for the prompt and 

equitable resolution of complaints of sex 

discrimination, including sex-based 

harassment, under § 106.45, and if 

applicable § 106.46. 

(ii) Provide the student with 

voluntary reasonable modifications to 

the recipient’s policies, practices, or 

procedures because of pregnancy or 

related conditions, under paragraph 

(b)(4) of this section. 

(iii) Allow the student a voluntary 

leave of absence from the recipient’s 

education program or activity to cover, 

at minimum, the period of time deemed 

medically necessary by the student’s 

physician or other licensed healthcare 

provider. To the extent that a recipient 

maintains a leave policy for students 

that allows a greater period of time than 

the medically necessary period, the 

recipient must permit the student to 

take leave under that policy instead if 

the student so chooses. Upon the 

student’s return to the recipient’s 

education program or activity, the 

student must be reinstated to the 

academic status and, as practicable, to 

the extracurricular status that the 

student held when the leave began. 

(iv) Ensure the availability of a 

lactation space, which must be a space 

other than a bathroom, that is clean, 

shielded from view, free from intrusion 

from others, and may be used by a 

student for expressing breast milk or 

breastfeeding as needed. 

(4) Reasonable modifications for 

students because of pregnancy or 

related conditions. Reasonable 

modifications to the recipient’s policies, 

practices, or procedures for a student 

because of pregnancy or related 

conditions, for purposes of this section: 

(i) Must be provided on an 

individualized and voluntary basis 

depending on the student’s needs when 

necessary to prevent discrimination and 

ensure equal access to the recipient’s 

education program or activity, unless 

the recipient can demonstrate that 

making the modification would 

fundamentally alter the recipient’s 

education program or activity. A 

fundamental alteration is a change that 

is so significant that it alters the 

essential nature of the recipient’s 

education program or activity; 

(ii) Must be effectively implemented, 

coordinated, and documented by the 

Title IX Coordinator; and 

(iii) May include but are not limited 

to breaks during class to attend to 

related health needs, expressing breast 

milk, or breastfeeding; intermittent 

absences to attend medical 

appointments; access to online or other 

homebound education; changes in 

schedule or course sequence; extension 

of time for coursework and rescheduling 

of tests and examinations; counseling; 

changes in physical space or supplies 

(for example, access to a larger desk or 

a footrest); elevator access; or other 

appropriate changes to policies, 

practices, or procedures. 

(5) Comparable treatment to 

temporary disabilities or conditions. To 

the extent not otherwise addressed in 

paragraph (b)(3) of this section, a 

recipient must treat pregnancy or 

related conditions or any temporary 

disability resulting therefrom in the 

same manner and under the same 

policies as any other temporary 

disability or physical condition with 

respect to any medical or hospital 

benefit, service, plan, or policy the 

recipient administers, operates, offers, 

or participates in with respect to 

students admitted to the recipient’s 

education program or activity. 

(6) Certification to participate. A 

recipient may not require a student who 

is pregnant or has related conditions to 

provide certification from a physician or 

other licensed healthcare provider that 

the student is physically able to 

participate in the recipient’s class, 

program, or extracurricular activity 

unless: 

(i) The certified level of physical 

ability or health is necessary for 

participation in the class, program, or 

extracurricular activity; 

(ii) The recipient requires such 

certification of all students participating 

in the class, program, or extracurricular 

activity; and 

(iii) The information obtained is not 

used as a basis for discrimination 

prohibited by this part. 

§ 106.41 [Amended] 

■ 17. Section 106.41 is amended by 

removing paragraph (d). 

■ 18. Section 106.44 is revised to read 

as follows: 

§ 106.44 Action by a recipient to operate 

its education program or activity free from 

sex discrimination. 

(a) General. A recipient must take 

prompt and effective action to end any 

sex discrimination that has occurred in 

its education program or activity, 

prevent its recurrence, and remedy its 

effects. To ensure that it can satisfy this 

obligation, a recipient must comply 

with this section. 

(b) Monitoring. A recipient must: 

(1) Require its Title IX Coordinator to 

monitor the recipient’s education 

program or activity for barriers to 

reporting information about conduct 

that may constitute sex discrimination 

under Title IX; and 

(2) Take steps reasonably calculated 

to address such barriers. 

(c) Notification requirements. (1) An 

elementary school or secondary school 

recipient must require all of its 

employees who are not confidential 

employees to notify the Title IX 

Coordinator when the employee has 

information about conduct that may 

constitute sex discrimination under 

Title IX. 

(2) All other recipients must, at a 

minimum, require: 

(i) Any employee who is not a 

confidential employee and who has 

authority to institute corrective 

measures on behalf of the recipient to 

notify the Title IX Coordinator when the 

employee has information about 

conduct that may constitute sex 

discrimination under Title IX; 

(ii) Any employee who is not a 

confidential employee and who has 

responsibility for administrative 

leadership, teaching, or advising in the 

recipient’s education program or 

activity to notify the Title IX 

Coordinator when the employee has 

information about a student being 

subjected to conduct that may constitute 

sex discrimination under Title IX; 

(iii) Any employee who is not a 

confidential employee and who has 

responsibility for administrative 

leadership, teaching, or advising in the 

recipient’s education program or 

activity and has information about an 

employee being subjected to conduct 

that may constitute sex discrimination 

under Title IX to either: 

(A) Notify the Title IX Coordinator 

when the employee has information 

about an employee being subjected to 

conduct that may constitute sex 

discrimination under Title IX; or 

(B) Provide the contact information of 

the Title IX Coordinator and 

information about how to report sex 

discrimination to any person who 

provides the employee with the 

information; and 

(iv) All other employees who are not 

confidential employees, if any, to either: 

(A) Notify the Title IX Coordinator 

when the employee has information 


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about conduct that may constitute sex 

discrimination under Title IX; or 

(B) Provide the contact information of 

the Title IX Coordinator and 

information about how to report sex 

discrimination to any person who 

provides the employee with information 

about conduct that may constitute sex 

discrimination under Title IX. 

(3) A postsecondary institution must 

make a fact-specific inquiry to 

determine whether the requirements of 

paragraph (c)(2) of this section apply to 

a person who is both a student and an 

employee of the postsecondary 

institution. In making this 

determination, a postsecondary 

institution must, at a minimum, 

consider whether the person’s primary 

relationship with the postsecondary 

institution is to receive an education 

and whether the person learns of 

conduct that may constitute sex 

discrimination under Title IX in the 

postsecondary institution’s education 

program or activity while performing 

employment-related work. 

(4) The requirements of paragraphs 

(c)(1) and (2) of this section do not 

apply when the only employee with 

information about conduct that may 

constitute sex discrimination under 

Title IX is the employee-complainant. 

(d) Confidential employee 

requirements. (1) A recipient must 

notify all participants in the recipient’s 

education program or activity of the 

identity of any confidential employee. 

(2) A recipient must require a 

confidential employee to explain their 

confidential status to any person who 

informs the confidential employee of 

conduct that may constitute sex 

discrimination under Title IX and must 

provide that person with contact 

information for the recipient’s Title IX 

Coordinator and explain how to report 

information about conduct that may 

constitute sex discrimination under 

Title IX. 

(e) Public awareness events. When a 

postsecondary institution’s Title IX 

Coordinator is notified of information 

about conduct that may constitute sexbased harassment under Title IX that 

was provided by a person during a 

public event held on the postsecondary 

institution’s campus or through an 

online platform sponsored by a 

postsecondary institution to raise 

awareness about sex-based harassment 

associated with a postsecondary 

institution’s education program or 

activity, the postsecondary institution is 

not obligated to act in response to this 

information under this section, § 106.45, 

or § 106.46, unless the information 

reveals an immediate and serious threat 

to the health or safety of students or 

other persons in the postsecondary 

institution’s community. However, in 

all cases the postsecondary institution 

must use this information to inform its 

efforts to prevent sex-based harassment, 

including by providing tailored training 

to address alleged sex-based harassment 

in a particular part of its education 

program or activity or at a specific 

location when information indicates 

there may be multiple incidents of sexbased harassment. 

(f) Title IX Coordinator requirements. 

A recipient must require its Title IX 

Coordinator to take the following steps 

upon being notified of conduct that may 

constitute sex discrimination under 

Title IX: 

(1) Treat the complainant and 

respondent equitably; 

(2)(i) Notify the complainant of the 

grievance procedures under § 106.45, 

and if applicable § 106.46; and 

(ii) If a complaint is made, notify the 

respondent of the applicable grievance 

procedures and notify the parties of the 

informal resolution process under this 

section if available and appropriate; 

(3) Offer and coordinate supportive 

measures under paragraph (g) of this 

section, as appropriate, to the 

complainant and respondent to restore 

or preserve that party’s access to the 

recipient’s education program or 

activity; 

(4) In response to a complaint, initiate 

the grievance procedures or informal 

resolution process under § 106.45, and if 

applicable § 106.46; 

(5) In the absence of a complaint or 

informal resolution process, determine 

whether to initiate a complaint of sex 

discrimination that complies with the 

grievance procedures under § 106.45, 

and if applicable § 106.46, if necessary 

to address conduct that may constitute 

sex discrimination under Title IX in the 

recipient’s education program or 

activity; and 

(6) Take other appropriate prompt and 

effective steps to ensure that sex 

discrimination does not continue or 

recur within the recipient’s education 

program or activity, in addition to 

remedies provided to an individual 

complainant. 

(g) Supportive measures. Upon being 

notified of conduct that may constitute 

sex discrimination under Title IX, a 

Title IX Coordinator must offer 

supportive measures, as appropriate, to 

the complainant or respondent to the 

extent necessary to restore or preserve 

that party’s access to the recipient’s 

education program or activity. For 

allegations of sex discrimination, other 

than sex-based harassment or 

retaliation, a recipient’s provision of 

supportive measures would not require 

the recipient, its employee, or other 

person authorized to provide aid, 

benefit or services on the recipient’s 

behalf to alter the allegedly 

discriminatory conduct for the purpose 

of providing a supportive measure. 

(1) Supportive measures may vary 

depending on what the recipient deems 

to be available and reasonable. These 

measures may include but are not 

limited to: counseling; extensions of 

deadlines and other course-related 

adjustments; campus escort services; 

increased security and monitoring of 

certain areas of the campus; restrictions 

on contact between the parties; leaves of 

absence; voluntary or involuntary 

changes in class, work, housing, or 

extracurricular or any other activity, 

regardless of whether there is or is not 

a comparable alternative; and training 

and education programs related to sexbased harassment. 

(2) Supportive measures that burden a 

respondent may be imposed only during 

the pendency of a recipient’s grievance 

procedures under § 106.45, and if 

applicable § 106.46, and must be 

terminated at the conclusion of those 

grievance procedures. These measures 

must be no more restrictive of the 

respondent than is necessary to restore 

or preserve the complainant’s access to 

the recipient’s education program or 

activity. A recipient may not impose 

such measures for punitive or 

disciplinary reasons. 

(3) For supportive measures other 

than those that burden a respondent, a 

recipient may, as appropriate, modify or 

terminate supportive measures at the 

conclusion of the grievance procedures 

under § 106.45, and if applicable 

§ 106.46, or at the conclusion of the 

informal resolution process under 

paragraph (k) of this section, or the 

recipient may continue them beyond 

that point. 

(4) A recipient must provide a 

complainant or respondent affected by a 

decision to provide, deny, modify, or 

terminate supportive measures with a 

timely opportunity to seek modification 

or reversal of the recipient’s decision by 

an appropriate, impartial employee. The 

impartial employee must be someone 

other than the employee who made the 

decision being challenged and must 

have authority to modify or reverse the 

decision, if appropriate. A recipient 

must make a fact-specific inquiry to 

determine what constitutes a timely 

opportunity for seeking modification or 

reversal of a supportive measure. If the 

supportive measure burdens the 

respondent, the initial opportunity to 

seek modification or reversal of the 

recipient’s decision must be provided 

before the measure is imposed or, if 


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necessary under the circumstances, as 

soon as possible after the measure has 

taken effect. A recipient must also 

provide a complainant or respondent 

affected by a supportive measure with 

the opportunity to seek additional 

modification or termination of such 

supportive measure if circumstances 

change materially. 

(5) A recipient must ensure that it 

does not disclose information about any 

supportive measures to persons other 

than the complainant or respondent 

unless necessary to provide the 

supportive measure. A recipient may 

inform a party of supportive measures 

provided to or imposed on another party 

only if necessary to restore or preserve 

that party’s access to the education 

program or activity. 

(6) Under paragraph (f)(3) of this 

section, the Title IX Coordinator is 

responsible for offering and 

coordinating supportive measures. 

(7)(i) If the complainant or respondent 

is an elementary or secondary student 

with a disability, the Title IX 

Coordinator must consult with the 

Individualized Education Program (IEP) 

team, 34 CFR 300.321, if any, or the 

group of persons responsible for the 

student’s placement decision under 34 

CFR 104.35(c) (Section 504 team), if 

any, to help ensure the recipient 

complies with the requirements of the 

Individuals with Disabilities Education 

Act, 20 U.S.C. 1400 et seq., and Section 

504 of the Rehabilitation Act of 1973, 29 

U.S.C. 794, in the implementation of 

supportive measures. 

(ii) If the complainant or respondent 

is a postsecondary student with a 

disability, the Title IX Coordinator may 

consult, as appropriate, with the 

individual or office that the recipient 

has designated to provide supports to 

students with disabilities to help ensure 

that the recipient complies with Section 

504 of the Rehabilitation Act of 1973, 29 

U.S.C. 794, in the implementation of 

supportive measures. 

(h) Emergency removal. Nothing in 

this part precludes a recipient from 

removing a respondent from the 

recipient’s education program or 

activity on an emergency basis, 

provided that the recipient undertakes 

an individualized safety and risk 

analysis, determines that an immediate 

and serious threat to the health or safety 

of students, employees, or other persons 

arising from the allegations of sex 

discrimination justifies removal, and 

provides the respondent with notice and 

an opportunity to challenge the decision 

immediately following the removal. 

This provision must not be construed to 

modify any rights under the Individuals 

with Disabilities Education Act, 20 

U.S.C. 1400 et seq., Section 504 of the 

Rehabilitation Act of 1973, 29 U.S.C. 

794, or Title II of the Americans with 

Disabilities Act of 1990, 42 U.S.C. 

12131–12134. 

(i) Administrative leave. Nothing in 

this part precludes a recipient from 

placing an employee respondent on 

administrative leave from employment 

responsibilities during the pendency of 

the recipient’s grievance procedures. 

This provision must not be construed to 

modify any rights under Section 504 of 

the Rehabilitation Act of 1973, 29 U.S.C. 

794, or Title II of the Americans with 

Disabilities Act of 1990, 42 U.S.C. 

12131–12134. 

(j) Recipient prohibitions. When 

conducting an informal resolution 

process under paragraph (k) of this 

section, implementing grievance 

procedures under § 106.45, and if 

applicable § 106.46, or requiring a Title 

IX Coordinator to take other appropriate 

steps under paragraph (f)(6) of this 

section, a recipient must not disclose 

the identity of a party, witness, or other 

participant except in the following 

circumstances: 

(1) When the party, witness, or other 

participant has provided prior written 

consent to disclose their identity; 

(2) When permitted under the Family 

Educational Rights and Privacy Act, 20 

U.S.C. 1232g, or its implementing 

regulations, 34 CFR part 99; 

(3) As required by law; or 

(4) To carry out the purposes of this 

part, including action taken to address 

conduct that may constitute sex 

discrimination under Title IX in the 

recipient’s education program or 

activity. 

(k) Discretion to offer informal 

resolution in some circumstances. (1) At 

any time prior to determining whether 

sex discrimination occurred under 

§ 106.45, and if applicable § 106.46, a 

recipient may offer to a complainant 

and respondent an informal resolution 

process, unless there are allegations that 

an employee engaged in sex 

discrimination toward a student or such 

a process would conflict with Federal, 

State or local law. A recipient that 

provides the parties an informal 

resolution process must, to the extent 

necessary, also require its Title IX 

Coordinator to take other appropriate 

prompt and effective steps to ensure 

that sex discrimination does not 

continue or recur within the recipient’s 

education program or activity. 

(i) A recipient has discretion to 

determine whether it is appropriate to 

offer an informal resolution process 

when it receives information about 

conduct that may constitute sex 

discrimination under Title IX or a 

complaint of sex discrimination is 

made, and may decline to offer informal 

resolution despite one or more of the 

parties’ wishes. 

(ii) Circumstances when a recipient 

may decline to allow informal 

resolution include but are not limited to 

when the recipient determines that the 

alleged conduct would present a future 

risk of harm to others. 

(2) A recipient must not require or 

pressure the parties to participate in an 

informal resolution process. The 

recipient must obtain the parties’ 

voluntary consent to the informal 

resolution process and must not require 

waiver of the right to an investigation 

and adjudication of a complaint as a 

condition of enrollment or continuing 

enrollment, or employment or 

continuing employment, or exercise of 

any other right. 

(3) Before initiation of an informal 

resolution process, the recipient must 

provide to the parties notice that 

explains: 

(i) The allegations; 

(ii) The requirements of the informal 

resolution process; 

(iii) That, prior to agreeing to a 

resolution, any party has the right to 

withdraw from the informal resolution 

process and to initiate or resume the 

recipient’s grievance procedures; 

(iv) That the parties’ agreement to a 

resolution at the conclusion of the 

informal resolution process would 

preclude the parties from initiating or 

resuming grievance procedures arising 

from the same allegations; 

(v) The potential terms that may be 

requested or offered in an informal 

resolution agreement; 

(vi) Which records will be maintained 

and could be shared; 

(vii) That if the recipient initiates or 

resumes its grievance procedures under 

§ 106.45, and if applicable § 106.46, the 

recipient or a party must not access, 

consider, disclose, or otherwise use 

information, including records, obtained 

solely through an informal resolution 

process as part of the investigation or 

determination of the outcome of the 

complaint; and 

(viii) That, when applicable, and if 

the recipient resumes its grievance 

procedures, the informal resolution 

facilitator could serve as a witness for 

purposes other than providing 

information obtained solely through the 

informal resolution process. 

(4) The facilitator for the informal 

resolution process must not be the same 

person as the investigator or the 

decisionmaker in the recipient’s 

grievance procedures. Any person 

designated by a recipient to facilitate an 

informal resolution process must not 


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have a conflict of interest or bias for or 

against complainants or respondents 

generally or an individual complainant 

or respondent. Any person facilitating 

informal resolution must receive 

training under § 106.8(d)(3). 

(5) Potential terms that may be 

included in an informal resolution 

agreement include but are not limited 

to: 

(i) Restrictions on contact; and 

(ii) Restrictions on the respondent’s 

participation in one or more of the 

recipient’s programs or activities or 

attendance at specific events, including 

restrictions the recipient could have 

imposed as remedies or disciplinary 

sanctions had the recipient determined 

that sex discrimination occurred under 

the recipient’s grievance procedures. 

■ 19. Section 106.45 is revised to read 

as follows: 

§ 106.45 Grievance procedures for the 

prompt and equitable resolution of 

complaints of sex discrimination. 

(a)(1) General. For purposes of 

addressing complaints of sex 

discrimination, a recipient’s prompt and 

equitable grievance procedures must be 

in writing and include provisions that 

incorporate the requirements of this 

section. The requirements related to a 

respondent apply only to sex 

discrimination complaints alleging that 

a person violated the recipient’s 

prohibition on sex discrimination. 

When a sex discrimination complaint 

alleges that a recipient’s policy or 

practice discriminates on the basis of 

sex, the recipient is not considered a 

respondent. 

(a)(2) Complaint. The following 

persons have a right to make a 

complaint of sex discrimination, 

including complaints of sex-based 

harassment, requesting that the 

recipient initiate its grievance 

procedures: 

(i) A complainant; 

(ii) A person who has a right to make 

a complaint on behalf of a complainant 

under § 106.6(g); 

(iii) The Title IX Coordinator; 

(iv) With respect to complaints of sex 

discrimination other than sex-based 

harassment, any student or employee; or 

third party participating or attempting 

to participate in the recipient’s 

education program or activity when the 

alleged sex discrimination occurred. 

(b) Basic requirements for grievance 

procedures. A recipient’s grievance 

procedures must: 

(1) Treat complainants and 

respondents equitably; 

(2) Require that any person designated 

as a Title IX Coordinator, investigator, 

or decisionmaker not have a conflict of 

interest or bias for or against 

complainants or respondents generally 

or an individual complainant or 

respondent. The decisionmaker may be 

the same person as the Title IX 

Coordinator or investigator; 

(3) Include a presumption that the 

respondent is not responsible for the 

alleged conduct until a determination 

whether sex discrimination occurred is 

made at the conclusion of the recipient’s 

grievance procedures for complaints of 

sex discrimination; 

(4) Establish reasonably prompt 

timeframes for the major stages of the 

grievance procedures, including a 

process that allows for the reasonable 

extension of timeframes on a case-bycase basis for good cause with notice to 

the parties that includes the reason for 

the delay. Major stages include, for 

example, evaluation (i.e., the recipient’s 

determination of whether to dismiss or 

investigate a complaint of sex 

discrimination); investigation; 

determination; and appeal, if any; 

(5) Take reasonable steps to protect 

the privacy of the parties and witnesses 

during the pendency of a recipient’s 

grievance procedures, provided that the 

steps do not restrict the ability of the 

parties to obtain and present evidence, 

including by speaking to witnesses, 

subject to § 106.71; consult with a 

family member, confidential resource, 

or advisor; prepare for a hearing, if one 

is offered; or otherwise defend their 

interests; 

(6) Require an objective evaluation of 

all relevant evidence, consistent with 

the definition of relevant in § 106.2— 

including both inculpatory and 

exculpatory evidence—and provide that 

credibility determinations must not be 

based on a person’s status as a 

complainant, respondent, or witness; 

and 

(7) Exclude the following types of 

evidence, and questions seeking that 

evidence, as impermissible (i.e., must 

not be accessed, considered, disclosed, 

or otherwise used), regardless of 

whether they are relevant: 

(i) Evidence that is protected under a 

privilege as recognized by Federal or 

State law, unless the person holding 

such privilege has waived the privilege 

voluntarily in a manner permitted in the 

recipient’s jurisdiction; 

(ii) A party’s records that are made or 

maintained by a physician, 

psychologist, or other recognized 

professional or paraprofessional in 

connection with the provision of 

treatment to the party, unless the 

recipient obtains that party’s voluntary, 

written consent for use in the recipient’s 

grievance procedures; and 

(iii) Evidence that relates to the 

complainant’s sexual interests or prior 

sexual conduct, unless evidence about 

the complainant’s prior sexual conduct 

is offered to prove that someone other 

than the respondent committed the 

alleged conduct or is offered to prove 

consent with evidence concerning 

specific incidents of the complainant’s 

prior sexual conduct with the 

respondent. The fact of prior consensual 

sexual conduct between the 

complainant and respondent does not 

demonstrate or imply the complainant’s 

consent to the alleged sex-based 

harassment or preclude determination 

that sex-based harassment occurred. 

(c) Notice of allegations. Upon 

initiation of the recipient’s grievance 

procedures, a recipient must provide 

notice of the allegations to the parties 

whose identities are known. 

(1) The notice must include: 

(i) The recipient’s grievance 

procedures under this section, and if 

applicable § 106.46, and any informal 

resolution process under § 106.44(k); 

(ii) Sufficient information available at 

the time to allow the parties to respond 

to the allegations. Sufficient information 

includes the identities of the parties 

involved in the incident, the conduct 

alleged to constitute sex discrimination 

under Title IX, and the date and 

location of the alleged incident, to the 

extent that information is available to 

the recipient; and 

(iii) A statement that retaliation is 

prohibited. 

(2) If, in the course of an 

investigation, the recipient decides to 

investigate additional allegations about 

the respondent’s conduct toward the 

complainant that are not included in the 

notice provided under paragraph (c)(1) 

of this section or that are included in a 

complaint that is consolidated under 

paragraph (e) of this section, the 

recipient must provide notice of the 

additional allegations to the parties 

whose identities are known. 

(d) Dismissal of a complaint. (1) A 

recipient may dismiss a complaint of 

sex discrimination made through its 

grievance procedures under this section, 

and if applicable § 106.46, for any of the 

following reasons: 

(i) The recipient is unable to identify 

the respondent after taking reasonable 

steps to do so; 

(ii) The respondent is not 

participating in the recipient’s 

education program or activity and is not 

employed by the recipient; 

(iii) The complainant voluntarily 

withdraws any or all of the allegations 

in the complaint and the recipient 

determines that without the 

complainant’s withdrawn allegations, 


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the conduct that remains alleged in the 

complaint, if any, would not constitute 

sex discrimination under Title IX even 

if proven; or 

(iv) The recipient determines the 

conduct alleged in the complaint, even 

if proven, would not constitute sex 

discrimination under Title IX. Prior to 

dismissing the complaint under this 

paragraph, the recipient must make 

reasonable efforts to clarify the 

allegations with the complainant. 

(2) Upon dismissal, a recipient must 

promptly notify the complainant of the 

basis for the dismissal. If the dismissal 

occurs after the respondent has been 

notified of the allegations, then the 

recipient must also notify the 

respondent of the dismissal and the 

basis for the dismissal promptly 

following notification to the 

complainant, or simultaneously if 

notification is in writing. 

(3) A recipient must notify all parties 

that a dismissal may be appealed, 

provide any party with an opportunity 

to appeal its dismissal of a complaint, 

and must: 

(i) Notify the parties when an appeal 

is filed and implement appeal 

procedures equally for the parties; 

(ii) Ensure that the decisionmaker for 

the appeal did not take part in an 

investigation of the allegations or 

dismissal of the complaint; 

(iii) Ensure that the decisionmaker for 

the appeal has been trained as set out in 

§ 106.8(d)(2); 

(iv) Provide the parties a reasonable 

and equal opportunity to make a 

statement in support of, or challenging, 

the outcome; and 

(v) Notify all parties of the result of 

the appeal and the rationale for the 

result. 

(4) A recipient that dismisses a 

complaint must, at a minimum: 

(i) Offer supportive measures to the 

complainant as appropriate under 

§ 106.44(g); 

(ii) For dismissals under paragraphs 

(d)(1)(iii) or (iv) of this section in which 

the respondent has been notified of the 

allegations, offer supportive measures to 

the respondent as appropriate under 

§ 106.44(g); and 

(iii) Require its Title IX Coordinator to 

take other appropriate prompt and 

effective steps to ensure that sex 

discrimination does not continue or 

recur within the recipient’s education 

program or activity under § 106.44(f)(6). 

(e) Consolidation of complaints. A 

recipient may consolidate complaints of 

sex discrimination against more than 

one respondent, or by more than one 

complainant against one or more 

respondents, or by one party against 

another party, when the allegations of 

sex discrimination arise out of the same 

facts or circumstances. If one of the 

complaints to be consolidated is a 

complaint of sex-based harassment 

involving a student complainant or 

student respondent at a postsecondary 

institution, the grievance procedures for 

investigating and resolving the 

consolidated complaint must comply 

with the requirements of this section 

and § 106.46. When more than one 

complainant or more than one 

respondent is involved, references in 

this section and in § 106.46 to a party, 

complainant, or respondent include the 

plural, as applicable. 

(f) Complaint investigation. A 

recipient must provide for adequate, 

reliable, and impartial investigation of 

complaints. To do so, the recipient 

must: 

(1) Ensure that the burden is on the 

recipient—not on the parties—to 

conduct an investigation that gathers 

sufficient evidence to determine 

whether sex discrimination occurred; 

(2) Provide an equal opportunity for 

the parties to present relevant fact 

witnesses and other inculpatory and 

exculpatory evidence; 

(3) Review all evidence gathered 

through the investigation and determine 

what evidence is relevant and what 

evidence is impermissible regardless of 

relevance, consistent with § 106.2 and 

with paragraph (b)(7) of this section; 

and 

(4) Provide each party with a 

description of the evidence that is 

relevant to the allegations of sex 

discrimination and not otherwise 

impermissible, as well as a reasonable 

opportunity to respond. 

(g) Evaluating allegations and 

assessing credibility. A recipient must 

provide a process that enables the 

decisionmaker to adequately assess the 

credibility of the parties and witnesses 

to the extent credibility is both in 

dispute and relevant to evaluating one 

or more allegations of sex 

discrimination. 

(h) Determination of whether sex 

discrimination occurred. Following an 

investigation and evaluation process 

under paragraphs (f) and (g) of this 

section, the recipient must: 

(1) Use the preponderance of the 

evidence standard of proof to determine 

whether sex discrimination occurred, 

unless the recipient uses the clear and 

convincing evidence standard of proof 

in all other comparable proceedings, 

including proceedings relating to other 

discrimination complaints, in which 

case the recipient may elect to use that 

standard of proof in determining 

whether sex discrimination occurred. 

Both standards of proof require the 

decisionmaker to evaluate relevant 

evidence for its persuasiveness; if the 

decisionmaker is not persuaded under 

the applicable standard by the evidence 

that sex discrimination occurred, 

whatever the quantity of the evidence is, 

the decisionmaker should not determine 

that sex discrimination occurred. 

(2) Notify the parties of the outcome 

of the complaint, including the 

determination of whether sex 

discrimination occurred under Title IX, 

and the procedures and permissible 

bases for the complainant and 

respondent to appeal, if applicable; 

(3) If there is a determination that sex 

discrimination occurred, as appropriate, 

require the Title IX Coordinator to 

provide and implement remedies to a 

complainant or other person the 

recipient identifies as having had equal 

access to the recipient’s education 

program or activity limited or denied by 

sex discrimination, and require the Title 

IX Coordinator to take other appropriate 

prompt and effective steps to ensure 

that sex discrimination does not 

continue or recur within the recipient’s 

education program or activity under 

§ 106.44(f)(6); 

(4) Comply with this section, and if 

applicable § 106.46, before the 

imposition of any disciplinary sanctions 

against a respondent; and 

(5) Not discipline a party, witness, or 

others participating in a recipient’s 

grievance procedures for making a false 

statement or for engaging in consensual 

sexual conduct based solely on the 

recipient’s determination of whether sex 

discrimination occurred. 

(i) Additional provisions. If a recipient 

adopts additional provisions as part of 

its grievance procedures for handling 

complaints of sex discrimination, 

including sex-based harassment, such 

additional provisions must apply 

equally to the parties. 

(j) Informal resolution. In lieu of 

resolving a complaint through the 

recipient’s grievance procedures, the 

parties may instead elect to participate 

in an informal resolution process under 

§ 106.44(k) if provided by the recipient 

consistent with that paragraph. 

(k) Provisions limited to sex-based 

harassment complaints. For complaints 

alleging sex-based harassment, the 

grievance procedures must: 

(1) Describe the range of supportive 

measures available to complainants and 

respondents under § 106.44(g); and 

(2) Describe the range of, or list, the 

possible disciplinary sanctions and 

remedies that the recipient may impose 

following a determination that sexbased harassment occurred. 


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§ 106.46 [Redesignated as § 106.48] 

■ 20. Section 106.46 is redesignated as 

§ 106.48. 

■ 21. Add a new § 106.46 to subpart D 

to read as follows: 

§ 106.46 Grievance procedures for the 

prompt and equitable resolution of 

complaints of sex-based harassment 

involving student complainants or student 

respondents at postsecondary institutions. 

(a) General. A postsecondary 

institution’s prompt and equitable 

written grievance procedures for 

complaints of sex-based harassment 

involving a student complainant or 

student respondent must include 

provisions that incorporate the 

requirements of § 106.45 and this 

section. 

(b) Student employees. When a 

complainant or respondent is both a 

student and an employee of a 

postsecondary institution, the 

postsecondary institution must make a 

fact-specific inquiry to determine 

whether the requirements of this section 

apply. In making this determination, a 

postsecondary institution must, at a 

minimum, consider whether the party’s 

primary relationship with the 

postsecondary institution is to receive 

an education and whether the alleged 

sex-based harassment occurred while 

the party was performing employmentrelated work. 

(c) Written notice of allegations. (1) 

Upon the initiation of the postsecondary 

institution’s sex-based harassment 

grievance procedures under this section, 

a postsecondary institution must 

provide written notice to the parties, 

whose identities are known, of: 

(i) All information required under 

§ 106.45(c); and 

(ii) Allegations potentially 

constituting sex-based harassment, 

including the information required 

under § 106.45(c)(1)(ii), with sufficient 

time for the parties to prepare a 

response before any initial interview. 

(2) The written notice must also 

inform the parties that: 

(i) The respondent is presumed not 

responsible for the alleged conduct until 

a determination of whether sex-based 

harassment occurred is made at the 

conclusion of the grievance procedures 

under this section and that prior to the 

determination, the parties will have an 

opportunity to present relevant 

evidence to a trained, impartial 

decisionmaker; 

(ii) They may have an advisor of their 

choice to serve in the role set out in 

paragraph (e)(2) of this section, and that 

the advisor may be, but is not required 

to be, an attorney; 

(iii) They are entitled to receive access 

to relevant evidence or to an 

investigative report that accurately 

summarizes this evidence as set out in 

paragraph (e)(6) of this section; and 

(iv) If applicable, any provision in the 

postsecondary institution’s code of 

conduct prohibits knowingly making 

false statements or knowingly 

submitting false information during the 

grievance procedure. 

(3) To the extent the postsecondary 

institution has legitimate concerns for 

the safety of any person as a result of 

providing this notice, the postsecondary 

institution may reasonably delay 

providing written notice of the 

allegations in order to address the safety 

concern appropriately. Legitimate 

concerns must be based on 

individualized safety and risk analysis 

and not on mere speculation or 

stereotypes. 

(d) Dismissal of a complaint. When 

dismissing a complaint alleging sexbased harassment and involving a 

student complainant or a student 

respondent, a postsecondary institution 

must: 

(1) Provide the parties, 

simultaneously, with written notice of 

the dismissal and the basis for the 

dismissal, if dismissing a complaint 

under any of the bases in § 106.45(d)(1); 

and 

(2) Obtain the complainant’s 

withdrawal in writing if dismissing a 

complaint based on the complainant’s 

voluntary withdrawal of the complaint 

or allegations under § 106.45(d)(1)(iii). 

(e) Complaint investigation. When 

investigating a complaint alleging sexbased harassment and throughout the 

postsecondary institution’s grievance 

procedures for complaints of sex-based 

harassment involving a student 

complainant or a student respondent, a 

postsecondary institution: 

(1) Must provide, to a party whose 

participation is invited or expected, 

written notice of the date, time, 

location, participants, and purpose of all 

meetings, investigative interviews, or 

hearings with sufficient time for the 

party to prepare to participate; 

(2) Must provide the parties with the 

same opportunities to be accompanied 

to any meeting or proceeding by the 

advisor of their choice, who may be, but 

is not required to be, an attorney, and 

not limit the choice or presence of the 

advisor for the complainant or 

respondent in any meeting or grievance 

proceeding; however, the postsecondary 

institution may establish restrictions 

regarding the extent to which the 

advisor may participate in the grievance 

procedures, as long as the restrictions 

apply equally to the parties; 

(3) Must provide the parties with the 

same opportunities, if any, to have 

persons other than the advisor of the 

parties’ choice present during any 

meeting or proceeding; 

(4) Has discretion to determine 

whether the parties may present expert 

witnesses as long as the determination 

applies equally to the parties; 

(5) Must allow for the reasonable 

extension of timeframes on a case-bycase basis for good cause with written 

notice to the parties that includes the 

reason for the delay; and 

(6) Must provide each party and the 

party’s advisor, if any, with equitable 

access to the evidence that is relevant to 

the allegations of sex-based harassment 

and not otherwise impermissible, 

consistent with §§ 106.2 and 

106.45(b)(7), in the following manner: 

(i) A postsecondary institution must 

provide either equitable access to the 

relevant and not otherwise 

impermissible evidence, or to the same 

written investigative report that 

accurately summarizes this evidence. If 

the postsecondary institution provides 

an investigative report, it must further 

provide the parties with equitable 

access to the relevant and not otherwise 

impermissible evidence upon the 

request of any party; 

(ii) A postsecondary institution must 

provide the parties with a reasonable 

opportunity to review and respond to 

the evidence as provided under 

paragraph (6)(i) of this section prior to 

the determination of whether sex-based 

harassment occurred. If a postsecondary 

institution conducts a live hearing as 

part of its grievance procedures, it must 

provide this opportunity to review the 

evidence in advance of the live hearing; 

it is at the postsecondary institution’s 

discretion whether to provide this 

opportunity to respond prior to the live 

hearing, during the live hearing, or both 

prior to and during the live hearing; 

(iii) A postsecondary institution must 

take reasonable steps to prevent and 

address the parties’ and their advisors’ 

unauthorized disclosure of information 

and evidence obtained solely through 

the sex-based harassment grievance 

procedures; and 

(iv) Compliance with paragraph (e)(6) 

of this section satisfies the requirements 

of § 106.45(f)(4). 

(f) Evaluating allegations and 

assessing credibility.—(1) Process for 

evaluating allegations and assessing 

credibility. A postsecondary institution 

must provide a process as specified in 

this subpart that enables the 

decisionmaker to adequately assess the 

credibility of the parties and witnesses 

to the extent credibility is both in 

dispute and relevant to evaluating one 

or more allegations of sex-based 


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harassment. This assessment of 

credibility includes either: 

(i) Allowing the decisionmaker to ask 

the parties and witnesses, during 

individual meetings with the parties or 

at a live hearing, relevant and not 

otherwise impermissible questions 

under §§ 106.2 and 106.45(b)(7) and 

follow-up questions, including 

questions challenging credibility, before 

determining whether sex-based 

harassment occurred and allowing each 

party to propose to the decisionmaker or 

investigator relevant and not otherwise 

impermissible questions under §§ 106.2 

and 106.45(b)(7) and follow-up 

questions, including questions 

challenging credibility, that the party 

wants asked of any party or witness and 

have those questions asked during 

individual meetings with the parties or 

at a live hearing under paragraph (g) of 

this section subject to the requirements 

in paragraph (f)(3) of this section; or 

(ii) When a postsecondary institution 

chooses to conduct a live hearing, 

allowing each party’s advisor to ask any 

party and any witnesses all relevant and 

not otherwise impermissible questions 

under §§ 106.2 and 106.45(b)(7) and 

follow-up questions, including 

questions challenging credibility, 

subject to the requirements under 

paragraph (f)(3) of this section. Such 

questioning must never be conducted by 

a party personally. If a postsecondary 

institution permits advisor-conducted 

questioning and a party does not have 

an advisor who can ask questions on 

their behalf, the postsecondary 

institution must provide the party with 

an advisor of the postsecondary 

institution’s choice, without charge to 

the party, for the purpose of advisorconducting questioning. The advisor 

may be, but is not required to be, an 

attorney. 

(2) Compliance with § 106.45(g). 

Compliance with paragraph (f)(1)(i) or 

(ii) of this section satisfies the 

requirements of § 106.45(g). 

(3) Procedures for the decisionmaker 

to evaluate the questions and 

limitations on questions. The 

decisionmaker must determine whether 

a proposed question is relevant and not 

otherwise impermissible under §§ 106.2 

and 106.45(b)(7), prior to the question 

being posed, and must explain any 

decision to exclude a question as not 

relevant. If a decisionmaker determines 

that a party’s question is relevant and 

not otherwise impermissible, then it 

must be asked except that a 

postsecondary institution must not 

permit questions that are unclear or 

harassing of the party being questioned. 

A postsecondary institution may also 

impose other reasonable rules regarding 

decorum, provided they apply equally 

to the parties. 

(4) Refusal to respond to questions 

related to credibility. If a party does not 

respond to questions related to their 

credibility, the decisionmaker must not 

rely on any statement of that party that 

supports that party’s position. The 

decisionmaker must not draw an 

inference about whether sex-based 

harassment occurred based solely on a 

party’s or witness’s refusal to respond 

questions related to their credibility. 

(g) Live hearing procedures. A 

postsecondary institution’s sex-based 

harassment grievance procedures may, 

but need not, provide for a live hearing. 

If a postsecondary institution chooses to 

conduct a live hearing, it may conduct 

the live hearing with the parties 

physically present in the same 

geographic location, but at the 

postsecondary institution’s discretion or 

upon the request of either party, it will 

conduct the live hearing with the parties 

physically present in separate locations 

with technology enabling the 

decisionmaker and parties to 

simultaneously see and hear the party or 

the witness while that person is 

speaking or communicating in another 

format. A postsecondary institution 

must create an audio or audiovisual 

recording, or transcript, of any live 

hearing and make it available to the 

parties for inspection and review. 

(h) Written determination of whether 

sex-based harassment occurred. The 

postsecondary institution must provide 

the determination whether sex-based 

harassment occurred in writing to the 

parties simultaneously. 

(1) The written determination must 

include: 

(i) A description of the alleged sexbased harassment; 

(ii) Information about the policies and 

procedures that the postsecondary 

institution used to evaluate the 

allegations; 

(iii) The decisionmaker’s evaluation 

of the relevant evidence and 

determination of whether sex-based 

harassment occurred; 

(iv) When the decisionmaker finds 

that sex-based harassment occurred, any 

disciplinary sanctions the 

postsecondary institution will impose 

on the respondent, and whether 

remedies other than the imposition of 

disciplinary sanctions will be provided 

by the postsecondary institution to the 

complainant and, to the extent 

appropriate, other students identified by 

the postsecondary institution to be 

experiencing the effects of the sex-based 

harassment; and 

(v) The postsecondary institution’s 

procedures for the complainant and 

respondent to appeal. 

(2) The determination regarding 

responsibility becomes final either on 

the date that the postsecondary 

institution provides the parties with the 

written determination of the result of 

the appeal, if an appeal is filed, or if an 

appeal is not filed, the date on which an 

appeal would no longer be considered 

timely. 

(i) Appeals. (1) A postsecondary 

institution must offer the parties an 

appeal from a determination that sexbased harassment occurred, and from a 

postsecondary institution’s dismissal of 

a complaint or any allegations therein, 

on the following bases: 

(i) Procedural irregularity that would 

change the determination of whether 

sex-based harassment occurred in the 

matter; 

(ii) New evidence that would change 

the outcome of the matter and that was 

not reasonably available at the time the 

determination of whether sex-based 

harassment occurred or dismissal was 

made; and 

(iii) The Title IX Coordinator, 

investigator, or decisionmaker had a 

conflict of interest or bias for or against 

complainants or respondents generally 

or the individual complainant or 

respondent that would change the 

outcome of the matter. 

(2) A postsecondary institution may 

offer an appeal equally to the parties on 

additional bases, as long as the 

additional bases are available to all 

parties. 

(3) As to all appeals, the 

postsecondary institution must comply 

with the requirements in 

§ 106.45(d)(3)(i), (iv), and (v) in writing. 

(j) Informal resolution. If a 

postsecondary institution offers or 

provides the parties to the grievance 

procedures under § 106.45 and under 

this section with an informal resolution 

process under § 106.44(k), the 

postsecondary institution must inform 

the parties in writing of the offer and 

their rights and responsibilities in the 

informal resolution process and 

otherwise comply with the provisions of 

§ 106.44(k)(3) in writing. 

■ 22. Section 106.47 is added to subpart 

D to read as follows: 

§ 106.47 Assistant Secretary review of sexbased harassment complaints. 

The Assistant Secretary will not deem 

a recipient to have violated this part 

solely because the Assistant Secretary 

would have reached a different 

determination than a recipient reached 

under § 106.45, and if applicable 

§ 106.46, based on an independent 


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weighing of the evidence in sex-based 

harassment complaints. 

■ 23. Section 106.51 is amended by 

revising paragraph (b)(6) to read as 

follows: 

§ 106.51 Employment. 

* * * * * 

(b) * * * 

(6) Granting and return from leaves of 

absence, leave for pregnancy or related 

conditions, leave for persons of either 

sex to care for children or dependents, 

or any other leave; 

* * * * * 

■ 24. Section 106.57 is revised to read 

as follows: 

§ 106.57 Parental, family, or marital status; 

pregnancy or related conditions. 

(a) Status generally. A recipient shall 

not adopt or apply any policy, practice, 

or procedure, or take any employment 

action on the basis of sex: 

(1) Concerning the current, potential, 

or past parental, family, or marital status 

of an employee or applicant for 

employment which treats persons 

differently; or 

(2) Which is based upon whether an 

employee or applicant for employment 

is the head of household or principal 

wage earner in such employee’s or 

applicant’s family unit. 

(b) Pregnancy or related conditions. A 

recipient shall not discriminate against 

or exclude from employment any 

employee or applicant for employment 

on the basis of current, potential, or past 

pregnancy or related conditions. 

(c) Comparable treatment to 

temporary disabilities or conditions. A 

recipient shall treat pregnancy or related 

conditions or any temporary disability 

resulting therefrom as any other 

temporary disability for all job-related 

purposes, including commencement, 

duration and extensions of leave, 

payment of disability income, accrual of 

seniority and any other benefit or 

service, and reinstatement, and under 

any fringe benefit offered to employees 

by virtue of employment. 

(d) Pregnancy leave. In the case of a 

recipient that does not maintain a leave 

policy for its employees, or in the case 

of an employee with insufficient leave 

or accrued employment time to qualify 

for leave under such a policy, a 

recipient shall treat pregnancy or related 

conditions as a justification for a 

voluntary leave of absence without pay 

for a reasonable period of time, at the 

conclusion of which the employee shall 

be reinstated to the status held when the 

leave began or to a comparable position, 

without decrease in rate of 

compensation or loss of promotional 

opportunities, or any other right or 

privilege of employment. 

(e) Lactation time and space. (1) A 

recipient must provide reasonable break 

time for an employee to express breast 

milk or breastfeed as needed. 

(2) A recipient must ensure the 

availability of a lactation space, which 

must be a space other than a bathroom 

that is clean, shielded from view, free 

from intrusion from others, and may be 

used by an employee for expressing 

breast milk or breastfeeding as needed. 

■ 25. Section 106.60 is revised to read 

as follows: 

§ 106.60 Pre-employment inquiries. 

(a) Marital status. A recipient must 

not make pre-employment inquiry as to 

the marital status of an applicant for 

employment, including whether such 

applicant is ‘‘Miss or Mrs.’’ 

(b) Sex. A recipient may ask an 

applicant for employment to selfidentify their sex, but only if this 

question is asked of all applicants and 

if the response is not used as a basis for 

discrimination prohibited by this part. 

■ 26. Section 106.71 is revised to read 

as follows: 

§ 106.71 Retaliation. 

A recipient must prohibit retaliation 

in its education program or activity. 

When a recipient receives information 

about conduct that may constitute 

retaliation, the recipient is obligated to 

comply with § 106.44. A recipient must 

initiate its grievance procedures upon 

receiving a complaint alleging 

retaliation under § 106.45. As set out in 

§ 106.45(e), if the complaint is 

consolidated with a complaint of sexbased harassment involving a student 

complainant or student respondent at a 

postsecondary institution, the grievance 

procedures initiated by the consolidated 

complaint must comply with the 

requirements of §§ 106.45 and 106.46. 

Prohibited retaliation includes but is not 

limited to: 

(a) Initiating a disciplinary process 

against a person for a code of conduct 

violation that does not involve sex 

discrimination but arises out of the 

same facts and circumstances as a 

complaint or information reported about 

possible sex discrimination, for the 

purpose of interfering with the exercise 

of any right or privilege secured by Title 

IX or this part; or 

(b) Peer retaliation. 

■ 27. Section 106.81 is revised to read 

as follows: 

§ 106.81 Procedures. 

The procedural provisions applicable 

to title VI of the Civil Rights Act of 1964 

are hereby adopted and incorporated 

herein. These procedures may be found 

at 34 CFR 100.6–100.11 and 34 CFR part 

101. 

[FR Doc. 2022–13734 Filed 7–11–22; 8:45 am] 

BILLING CODE 4000–01–P 


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