I 117th CONGRESS 1st Session H. R. 5396 IN THE HOUSE OF REPRESENTATIVES September 28, 2021 Mrs. Dingell (for herself and Mrs. Hayes ) introduced the following bill; which was referred to the Committee on Education and Labor A BILL To amend title IX of the Education Amendments of 1972 to establish standards of liability for harassment on the basis of sex, and for other purposes.

1. Short title This Act may be cited as the Title IX Take Responsibility Act of 2021 . 2. Findings Congress finds the following: (1) As the Supreme Court has held in Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 75 (1992), and Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999), covered entities are liable for harassment on the basis of sex under their education programs and activities under title IX of the Education Amendments of 1972 ( 20 U.S.C. 12681 et seq. ) (referred to in this Act as title IX ). (2) As courts have properly recognized, experiencing the effects of sexual harassment under an education program or activity, whether perpetrated by employees or agents of the program or activity, by peers of the victim, or by others, can be a form of unlawful and intentional discrimination that inflicts substantial harm on beneficiaries of the program or activity and violates the obligation of a covered entity to maintain a nondiscriminatory environment. (3) Title IX protects persons, of any gender, from discrimination on the basis of sex in education programs and activities that receive Federal funding. Supreme Court opinions have established that under title IX, schools are responsible for addressing sexual harassment, regardless of the location of the harassment, when it impacts a person’s access to an educational program or activity. (4) Perpetrators of sexual harassment and violence at school are not limited to students. Incidents have also involved faculty, administrators, coaches, and other staff members. (5) A school culture that tolerates inappropriate verbal and physical contact and that intentionally or unintentionally discourages reporting these behaviors undermines the emotional, intellectual, and professional growth of millions of young people. (6) Sexual harassment of students, especially among women and girls, students of color, disabled students, and LGBTQ students, is widely prevalent in K–12 and higher education, for example: (A) One in 5 girls ages 14 through 18 have been kissed or touched without their consent, 58 percent of LGBTQ youth ages 13 through 21 are sexually harassed, and children with disabilities are 2.9 times more likely than their peers to be sexually assaulted. (B) Historically marginalized and underrepresented groups are more likely to experience sexual harassment than their peers, with Native American, Black, and Latina girls being more likely than White girls to be forced to have sex when they do not want to do so. (C) In college, 1 in 4 women, 1 in 15 men, and 1 in 4 transgender, nonbinary, and gender-nonconforming students are sexually assaulted during their time as undergraduates. (D) One in 3 college women and 1 in 6 college men are survivors of dating violence or domestic violence. (7) Few students report harassment to their schools, often because of shame or self-blame, fear of retaliation, fear of being ignored or disciplined, fear of police or immigration officials, or lack of knowledge of services schools can offer to help. (8) Failure to meaningfully enforce title IX leads to discrimination by creating a hostile learning environment that impedes educational attainment, damages rights to equal access to education, and undermines learning for all. (9) When schools fail to protect survivors, including by offering supportive measures that are designed to preserve and to restore their equal access to education, survivors often suffer in the form of lower academic achievement, lost scholarships, and lost degrees. (10) Current title IX regulations issued by the Secretary of Education entitled Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance (85 Fed. Reg. 30026, May 19, 2020) have made it more difficult for student survivors to report harassment and receive help and pose uniquely burdensome procedures for cases of sexual harassment that are not required for any other type of student or staff misconduct, only further sweeping sexual violence under the rug. (11) Title IX’s language is broad and sweeping, making clear Congress’ intent to open the courthouse doors to victims of a wide range of sex discrimination in schools. However, since title IX’s passage, courts have created barriers that make it extraordinarily difficult for survivors to obtain redress from schools through private litigation. (12) In a 5 to 4 opinion in Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), the Supreme Court held that students subjected to sexual harassment may receive a damages remedy under title IX only when school officials have actual notice of the harassment and are deliberately indifferent , or respond in a clearly unreasonable manner, to it. (13) Although they do not affect the relevant standards for individuals to obtain injunctive and equitable relief for harassment on the basis of race, color, sex, national origin, age, or disability under covered programs and activities, Gebser and similar opinions severely limit the availability of remedies for such individuals by imposing new, more stringent standards for recovery of damages under title IX. Yet in many cases, damages are the only remedy that would effectively rectify past harassment. (14) These limitations on effective relief thwart Congress’ underlying purpose to protect students from harassment, and they create prohibitively high standards for title IX sexual harassment lawsuits that are more onerous than those applicable to workplace sexual harassment lawsuits under title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e et seq. ). As a result, schools are required to do less to address harassment against their students than to address the same harassment of their employees, meaning that students, who are children and young adults, must suffer worse harassment than adult employees before they are entitled to a remedy in court. (15) Some lower courts have added additional onerous barriers under which a school is only liable for its failure to address known sexual harassment if the victim later experiences further actionable sexual harassment. (16) A Federal court of appeals opinion in Kollaritsch v. Michigan State University Board of Trustees, 944 F.3d 613, 621–24 (6th Cir. 2019), went so far as to foreclose money damages if a victim of sexual harassment does not experience further actionable harassment as a result of the recipient’s deficient response to a complaint, even if the recipient’s conduct causes educational injuries under title IX. (17) Gebser and subsequent opinions create an incentive for covered entities to insulate themselves from knowledge of harassment on the basis of sex rather than adopting and enforcing practices that will minimize the danger of such harassment. The opinions thus undermine the purpose of prohibitions on discrimination in the civil rights laws to induce covered programs or activities to adopt and enforce practices that will minimize the danger that vulnerable students or other persons will be exposed to such odious behavior. (18) Legislative action is necessary and appropriate to reverse Gebser and other court opinions and restore the availability of a full range of remedies for harassment based on sex. (19) Restoring the availability of a full range of remedies for harassment will— (A) ensure that students and other persons of federally funded programs and activities have protection from harassment on the basis of sex; (B) encourage covered entities to adopt and enforce meaningful policies and procedures to prevent and remedy harassment; (C) deter incidents of harassment; and (D) provide appropriate remedies for discrimination. 3. Prohibition of harassment (a) Prohibition of harassment Section 901 of the Education Amendments of 1972 ( 20 U.S.C. 1681 ) is amended by adding at the end the following: (d) Prohibition of harassment (1) If an agent or an employee of a covered entity engages in harassment, regardless of where the harassment occurs, on the basis of sex, which is enabled or assisted by the authority exercised as an employee or agent of the covered entity, against a person who is participating in or receiving benefits, services, or opportunities from an education program or activity, or who is attempting to do so, and the harassment alters the aggrieved person’s ability to do so, including by creating an intimidating, hostile, or offensive environment, the covered entity is liable for sex discrimination. (2) (A) If a person who is an agent or employee of a covered entity engages in harassment, regardless of where the harassment occurs, on the basis of sex against a person who is participating in or receiving benefits, services, or opportunities from an education program or activity or who is attempting to do so— (i) the harassment is not enabled or assisted by the authority exercised as an employee or agent of the covered entity; (ii) the harassment alters the aggrieved person’s ability to participate in or receive benefits, services, or opportunities from an education program or activity, including by creating an intimidating, hostile, or offensive environment; and (iii) the covered entity knew, or in the exercise of reasonable care should have known, of the harassment, then the covered entity is liable for sex discrimination unless it can demonstrate that it exercised reasonable care to promptly prevent and correct the effects of any harassment based on sex. (B) If a person who is not an agent or employee of a covered entity engages in harassment, regardless of where the harassment occurs, on the basis of sex against a person who is participating in or receiving benefits, services, or opportunities from an education program or activity or who is attempting to do so, and the harassment alters the aggrieved person’s ability to do so, including by creating an intimidating, hostile, or offensive environment, and the covered entity knew, or in the exercise of reasonable care should have known, of the harassment, then the covered entity is liable for sex discrimination unless it can demonstrate that it exercised reasonable care to promptly prevent and correct the effects of any harassment based on sex. (C) A covered entity shall exercise reasonable care in response to harassment based on sex if any of the following individuals knew, or in the exercise of reasonable care should have known, about the harassment: (i) An agent or employee who has the authority to take action to redress the harassment. (ii) An agent or employee who has the duty to report to an administrator harassment or any other misconduct by others. (iii) An individual who a harassment victim or reporting party could reasonably believe has this authority or responsibility. (D) A showing that the covered entity has exercised reasonable care to promptly prevent and correct the effects of any harassment based on sex includes a demonstration by the covered entity that it has— (i) established, adequately publicized, and enforced an effective and comprehensive harassment prevention policy and complaint procedure that is likely to provide redress and avoid harm without exposing the person subjected to the harassment to undue risk, effort, or expense; (ii) if requested by the aggrieved person or otherwise deemed necessary to protect the aggrieved person or other persons within the program or activity from a significant ongoing threat, undertaken a prompt, thorough, and impartial investigation, unless the allegations are patently frivolous; (iii) provided supportive measures that had the purpose and effect of preserving and restoring the aggrieved person’s equal access to the education program or activity, regardless of whether the aggrieved person requested an investigation; and (iv) after receiving notice, taken other necessary, immediate, and appropriate corrective action designed to stop the harassment that occurred and correct its effects, regardless of whether the aggrieved person experienced subsequent harassment. . (b) Civil action Section 902 of the Education Amendments of 1972 ( 20 U.S.C. 1682 ) is amended— (1) by inserting (a) before Each Federal department and agency which is empowered ; and (2) by adding at the end the following: (b) Any person aggrieved by the failure of a covered entity to comply with this title, including any regulation promulgated pursuant to this title, may bring a civil action in any court of competent jurisdiction to enforce such person’s rights. . (c) Actions brought by aggrieved persons Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et. seq.) is amended by inserting after section 902 the following: 902A. Actions brought by or on behalf of aggrieved persons In an action brought against a covered entity by (including on behalf of) an aggrieved person who has been subjected to discrimination prohibited under this title (including its implementing regulations), the plaintiff may recover equitable and legal relief (including compensatory and punitive damages), and attorney’s fees (including expert fees). .