Title IX Protection Act

To amend the Department of Education Organization Act to codify into law the Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties Questions and Answers on Title IX and Sexual Violence 1. Short title This Act may be cited as the Title IX Protection Act 2. Findings Congress makes the following findings: (1) Education has long been recognized as the great equalizer in America. (2) The Congress believes that providing all students with an educational environment free from discrimination is extremely important. The sexual harassment of students, including sexual violence, creates a hostile environment, interferes with the right of students to receive an education free from discrimination, and is a form of discrimination prohibited by title IX of the Education Amendments of 1972. (3) Each school has a responsibility to promptly, thoroughly, and fairly investigate when sexual harassment is reported or observed by school employees. (4) Sexual harassment of students, including acts of sexual violence, is a form of sex discrimination prohibited by title IX of the Education Amendments of 1972. (5) In order to assist school districts, colleges, and universities (hereinafter schools (6) The 2011 DCL supplemented the Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties (7) In responding to requests for technical assistance, OCR determined that schools would benefit from additional guidance concerning their obligations under title IX to address sexual violence as a form of sexual harassment, and issued the Questions and Answers on Title IX and Sexual Violence (8) On September 7, 2017, Secretary of Education Betsy DeVos announced that OCR would be opening up a formal notice and comment period to replace the 2011 DCL. (9) On September 22, 2017, OCR rescinded both the 2011 DCL and the 2014 Q&A, and released a new interim Q&A (2017 Interim Guidance) for schools on how to investigate and adjudicate allegations of campus sexual misconduct under Federal law. (10) Although it is Congress’s view that title IX already requires the elements laid out in the amendment made by this Act, OCR’s recent actions allow schools to discriminate against survivors of sexual harassment and violence, contradicts the longstanding 2001 Guidance, and has already caused confusion for schools and students. (11) Therefore Congress has decided to reiterate and codify portions of the 2001 Guidance, the 2011 DCL, and the 2014 Q&A to provide clarity for schools and students regarding what is required under title IX with regard to sexual harassment, including sexual violence. 3. Definitions For purposes of this Act: (1) The term 2001 Guidance Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties (2) The term 2011 DCL (3) The term 2014 Q&A Questions and Answers on Title IX and Sexual Violence (4) The term sexual harassment sexual harassment (5) The term sexual violence 4. Codification amendment Section 203 of the Department of Education Organization Act ( 20 U.S.C. 3413 (d) Recipients of Federal financial assistance shall comply with the following procedural requirements to respond to sexual harassment, including sexual violence, in order to prevent and effectively respond to sex discrimination in alignment with title IX of the Education Amendments of 1972. Specifically, a recipient shall do all of the following: (1) Disseminate a notice of nondiscrimination on the basis of sex. (2) Designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under title IX. The school shall notify all students and employees of the name, office address, telephone number, and email address of all such designated employees. (3) Adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee sex discrimination complaints. Grievance procedures may include voluntary informal mechanisms (e.g., mediation) for resolving some types of sexual harassment complaints, however, a student who complains of harassment shall not be required to work out the problem directly with the alleged perpetrator via mediation, especially without appropriate involvement by the school (e.g., participation by a trained counselor, a trained mediator, or, if appropriate, a teacher or administrator). (4) Notify the complainant of the right to end the informal process at any time and begin the formal stage of the complaint process. Mediation and informal resolution are options for resolving some types of sexual harassment complaints, so long as the school completes its investigative requirements if one of these options is employed. Mediation shall not be used to resolve complaints involving allegations of sexual violence. (5) Require a school to address sexual harassment, including sexual violence, about which a responsible school employee knew or should have known. A responsible employee includes any employee who has the authority to take action to redress sexual harassment, who has been given the duty of reporting incidents of sexual harassment or any other misconduct to the title IX coordinator or other appropriate school designee, or whom a student could reasonably believe has the authority or duty. (6) Require that if a school knows or reasonably should know about sexual harassment that creates a hostile environment, the school shall take immediate action to eliminate the harassment, prevent its recurrence, and address its effects. Sexual harassment creates a hostile environment if the conduct is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program. The more severe the conduct, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the harassment is physical. A single or isolated incident of sexual harassment may create a hostile environment if the incident is sufficiently severe. For instance, a single instance of rape is sufficiently severe to create a hostile environment. (7) Require a school to process all complaints of sexual violence, regardless of where the conduct occurred, to determine whether the conduct occurred in the context of an education program or activity or had continuing effects on campus or in an off-campus education program or activity. A school’s title IX investigation is different from any law enforcement investigation, and a law enforcement investigation does not relieve the school of its independent title IX obligation to investigate the conduct. A school shall take steps to ensure the investigation is impartial. Any real or perceived conflict of interest between the investigator and the parties involved shall be disclosed. (8) Require a school to use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred) in its grievance procedures to be consistent with title IX standards. (9) Require that throughout the investigation, the parties shall have an equal opportunity to present relevant witnesses and other evidence. (10) Require that the complainant and respondent be afforded similar and timely access to any information that will be used at the hearing. (11) Require that if the school allows one party to be present for the entirety of a hearing, it shall do so equally for both parties. When requested, a school shall make arrangements so that the complainant and the alleged perpetrator do not have to be present in the same room at the same time (e.g., using closed-circuit television). If a hearing is part of the school’s title IX investigation process, the school shall not require a complainant to be present at the hearing as a prerequisite to proceed with the hearing. (12) Require that all persons involved in implementing a school’s grievance procedures (e.g., title IX coordinators, investigators, and adjudicators) have training or experience in handling complaints of sexual harassment and sexual violence and in the school’s grievance procedures. (13) Require that if an appeal of findings or remedy is provided by a school, it shall be provided to both parties. (14) Require schools to maintain documentation of all proceedings, which may include written findings of facts, transcripts, or audio recordings. (15) Not require schools to permit parties to have lawyers at any stage of the grievance proceedings, but if a school chooses to allow the parties to have their lawyers participate in the proceedings, it shall do so equally for both parties. Any school-imposed restrictions on the ability of lawyers to speak or otherwise participate in the proceedings shall apply equally to both parties. (16) Require schools not to allow the parties to personally question or cross-examine each other during the hearing as allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment. A school may choose, instead, to allow the parties to submit questions to a trained third party (e.g., the hearing panel) to ask the questions it deems appropriate and relevant on their behalf, except that questioning about the complainant’s sexual history, with anyone other than the respondent, shall not be permitted. A school should recognize that the mere fact of a current or previous consensual dating or sexual relationship between the two parties does not itself imply consent or preclude a finding of sexual violence. (17) Advise that a school may provide advisors for both the complainant and the respondent. If a school provides an advisor, it shall do so for both parties, with the same information available to both advisors. (18) Require schools to inform and obtain consent from the complainant (or the complainant’s parents if the complainant is under 18 and does not attend a postsecondary institution) before beginning an investigation. (19) Require that if the complainant requests confidentiality, or asks that the complaint not be pursued, the school shall take all reasonable steps to investigate and respond to the complaint consistent with the request for confidentiality or request not to pursue an investigation. If a complainant insists that the complainant's name or other identifiable information not be disclosed to the alleged perpetrator, the school shall inform the complainant that its ability to respond may be limited. Even if the school cannot take disciplinary action against the alleged harasser because the complainant insists on confidentiality, it shall pursue other steps to limit the effects of the alleged harassment and prevent its recurrence. Schools shall refer to the 2001 Guidance for additional information on confidentiality and the alleged perpetrator’s due process rights. If the complainant continues to ask that the complainant's name or other identifiable information not be revealed, the school shall evaluate that request in the context of its responsibility to provide a safe and nondiscriminatory environment for all students. Specifically, the school may weigh the request for confidentiality against all of the following factors: (A) The seriousness of the alleged harassment. (B) The complainant’s age. (C) Whether there have been other harassment complaints about the same individual. (D) The alleged harasser’s rights to receive information about the allegations if the information is maintained by the school as an education record under the Family Educational Rights and Privacy Act (FERPA) ( 20 U.S.C. 1232g (20) Require that if the alleged harasser may have a right under FERPA to inspect and review portions of the complaint that directly relate to the complainant, the school shall redact the complainant’s name and other identifying information before allowing the alleged harasser to inspect and review the sections of the complaint that relate to the complainant. In some cases, such as those where the school is required to report the incident to local law enforcement or other officials, the school may not be able to maintain the complainant’s confidentiality. (21) Require that the school shall inform the complainant if it cannot ensure confidentiality prior to disclosing the complainant’s identity. (22) Require that grievance procedures specify the timeframe within which— (A) the school will conduct a full investigation of the complaint; (B) both parties receive a response regarding the outcome of the complaint; and (C) both parties may file an appeal, if applicable. (23) Advise that an investigation should conclude approximately in the 60-calendar-day timeframe for investigations following receipt of the complaint, depending on the complexity of the investigation and the severity and extent of the harassment, except in cases— (A) involving multiple incidents with multiple complainants; or (B) where there is a parallel criminal investigation. Although a school may need to delay temporarily the fact-finding portion of a title IX investigation while the police are gathering evidence, it shall promptly resume and complete its fact-finding for the title IX investigation once it learns that the police department has completed its evidence-gathering stage of the criminal investigation. The school should not delay its investigation until the ultimate outcome of the criminal investigation or the filing of any charges. Where a school may need to stop an investigation during school breaks or between school years, a school shall make every effort to try to conduct an investigation during these breaks unless so doing would sacrifice witness availability or otherwise compromise the process. (24) Both parties shall be given periodic status updates during throughout the grievance process. (25) Require that schools notify both parties, in writing, about the outcome of both the complaint and any appeal. A school shall provide written notice of the outcome to the complainant and the respondent concurrently. A school shall inform the complainant as to whether or not it found that the alleged conduct occurred, any individual remedies offered or provided to the complainant, or any sanctions imposed on the perpetrator that directly relate to the complainant, and other steps the school has taken to eliminate the hostile environment, if the school finds one to exist, and prevent recurrence. Sanctions that directly relate to the complainant include, but are not limited to, requiring that the perpetrator stay away from the complainant until both parties graduate, prohibiting the perpetrator from attending school for a period of time, or transferring the perpetrator to another residence hall, other classes, or another school. The perpetrator shall not be notified of the individual remedies offered or provided to the complainant. (26) In addition, the Clery Act requires, and FERPA permits, postsecondary institutions to inform the complainant of the institution’s final determination and any disciplinary sanctions imposed on the perpetrator in sexual violence cases, not just those sanctions that directly relate to the complainant. (27) Require that if a school determines that sexual harassment that creates a hostile environment has occurred, it shall take immediate action to eliminate the hostile environment, (28) When taking steps to separate the complainant and alleged perpetrator, a school shall minimize the burden on the complainant, and thus shall not, as a matter of course, remove complainants from classes or housing while allowing alleged perpetrators to remain. (29) In addition, schools shall ensure that complainants are aware of their title IX rights and any available resources, such as counseling, health, and mental health services, and their right to file a complaint with local law enforcement. (30) If a school determines that it needs to offer counseling to the complainant as part of its title IX obligation to take steps to protect the complainant while the investigation is ongoing, it shall not require the complainant to pay for this service. (e) For purposes of this section: (1) The term 2001 Guidance Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties (2) The term 2011 DCL (3) The term 2014 Q&A Questions and Answers on Title IX and Sexual Violence (4) The term sexual harassment sexual harassment (5) The term sexual violence (6) The term 60-calendar-day timeframe for investigations (7) The term advisor Public Law 113–4 .

Summary: Title IX Protection Act This bill amends the Department of Education Organization Act to require recipients of federal financial assistance to comply with specified procedural requirements when responding to sexual harassment and sexual violence to prevent and effectively respond to sexual discrimination as required by title IX of the Education Amendments of 1972.