Title IX NPRM

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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
Office for Civil Rights,
Department of Education.
ACTION: Notice of proposed rulemaking.
AGENCY:

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

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SUMMARY:

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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:

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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
1 Throughout 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.

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Summary of the Major Provisions of
This Regulatory Action

• 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.

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;

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

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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.

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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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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

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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

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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-202101-25/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

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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;
2 The 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.

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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.’’

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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

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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
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).

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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

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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.

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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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Parties, 62 FR 12034, 12039 (Mar. 13,
1997) (1997 Sexual Harassment
Guidance) (revised in 2001), https://
www.govinfo.gov/content/pkg/FR-199703-13/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-202106-22/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

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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-202105-20/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

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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
successful management of the day-to4 The 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.

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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

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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

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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-201410-20/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

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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

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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

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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

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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.

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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

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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.’’

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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

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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

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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

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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
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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

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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

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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.

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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)

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41403

(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.

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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

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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

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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.

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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

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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

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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,

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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

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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-200101-19/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
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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
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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

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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

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‘‘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

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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

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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.

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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

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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

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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
2001 Revised Sexual Harassment

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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

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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,

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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

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‘‘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

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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

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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

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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

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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
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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

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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

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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
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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-199403-10/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

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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

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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

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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
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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
5 The 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
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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

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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,

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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

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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
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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

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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

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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

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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

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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
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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

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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
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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
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D. Administrative Requirements

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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
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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,

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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

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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
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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

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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)).

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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

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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
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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

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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

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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,

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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
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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

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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

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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

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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.

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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

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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

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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

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‘‘[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

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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

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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

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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

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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

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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

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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).

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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

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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

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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

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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

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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

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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

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41439

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).

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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

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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

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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

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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

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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

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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

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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

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41443

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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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41451

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

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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

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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:

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[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.

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Section 106.44(k)
Process

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Informal Resolution

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

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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

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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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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

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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
6 This 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.

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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.’’).

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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.

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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

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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

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‘‘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.

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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.

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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

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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

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41463

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

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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

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

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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’’).

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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

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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

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§ 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
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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
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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
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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

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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

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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

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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,

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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

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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

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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

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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).

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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.

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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

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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

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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
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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

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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.

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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

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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

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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

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§ 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

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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

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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

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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
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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

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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

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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
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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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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.

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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.
7 Under § 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.’’

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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

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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
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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
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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

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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

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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

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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

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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

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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

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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

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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.

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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)

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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-bba8ef12d9ae56a2/student-misconduct-td1black-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

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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,

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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

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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

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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

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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

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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

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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

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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.

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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.

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Section 106.45(i)
Provisions

Additional

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

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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

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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

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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

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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

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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.

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Section 106.46(c)
Allegations

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Written Notice of

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

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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

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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

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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

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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

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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

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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,

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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

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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

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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

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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

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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,

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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.

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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

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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

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§ 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

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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

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§ 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

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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

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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).

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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

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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

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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 cross-

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examination 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.

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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,

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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.

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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

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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

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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

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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
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examination. 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

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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

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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

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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,

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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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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

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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

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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
8 As 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.

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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

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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.

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.

I. Assistant Secretary Review

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.

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.

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III. Pregnancy and Parental Status

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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
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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

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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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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

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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

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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
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.

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

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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

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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.
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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

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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)
Generally

Admissions—Status

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

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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

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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.

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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

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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

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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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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

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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
10 The 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.

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41519

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

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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

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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)

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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

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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

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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.

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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

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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

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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

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§ 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.

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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

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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

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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.

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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

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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

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• 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.

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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

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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

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41527

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

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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
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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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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:

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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

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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

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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.
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.

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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-201702title-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

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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

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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/01194025a2.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

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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;

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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,

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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

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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

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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

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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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(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

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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

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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
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).

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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

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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
13 Research 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’’).

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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

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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’’).
*
*
*
*
*

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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/20200309title-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

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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

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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-197912-11/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:

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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

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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

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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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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

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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
14 The 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).

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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.

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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).

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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

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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

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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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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,

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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.

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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
15 The 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.

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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

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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

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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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§ 106.41 no later than June 1978. The
Department proposes to remove this
provision because it is no longer
operative.

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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
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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.

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

16 Executive 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.

17 Executive 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.

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.

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(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.

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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.
18 Executive 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.
19 Executive 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.

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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.
20 The 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.
21 The 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.

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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;

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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

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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

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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

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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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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

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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
22 Claire 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.

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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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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.

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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
23 See

85 FR 30026, 30565 (May 19, 2020).
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).
24 U.S.

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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

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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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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
25 Other 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).

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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

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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
26 This 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).
27 As 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.

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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
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
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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.
28 U.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).
29 U.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).

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• 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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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

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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
30 Note that time burden estimates for this activity
are unchanged from those used in the 2020
amendments.

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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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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

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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

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41553

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
31 This 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.

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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

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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

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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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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

Title IX Coordinator ..............................
Adm. Assistant .....................................
Lawyer/Advisor 1 ...................................
Investigator ...........................................
Adjudicator ...........................................
Recording .............................................
# of Investigations ................................

3 hours ...........
4 hours ...........
2 hours 2 .........
6 hours ...........
2 hours ...........
$100 ...............
1.94 ................

6 hours ...........
8 hours ...........
5 hours ...........
10 hours .........
2 hours ...........
$100 ...............
3.82 ................

2 hours ...........
4 hours ...........
2 hours ...........
1 hour .............
2 hours ...........
$100 ...............
1.00 ................

4 hours ...........
2 hours ...........
........................
........................
........................
$0 ...................
3.55 ................

5 hours ...........
8 hours ...........
5 hours ...........
10 hours .........
2 hours ...........
$100 ...............
6.27 ................

Other
2 hours.
4 hours.
2 hours.
1 hour.
2 hours.
$100.
2.20.

1 When

present, the Department assumes two lawyers/advisors per investigation and adjudication.
Department assumes lawyers/advisors are involved in only 15 percent of investigations and adjudications. This estimate is based on information from a professional organization.

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2 The

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.

32 Estimates were based on information provided
by national professional organizations and
discussions with internal subject matter experts.

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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

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Cost category

Baseline

After proposed regulations

Harassment grievance procedures

LEAs

IHEs

Other

LEAs

IHEs

Title IX Coordinator ..............................
Adm. Assistant .....................................
Lawyer/Advisor 1 ...................................
Investigator ...........................................
Adjudicator ...........................................
Recording .............................................
# of Investigations ................................

3 hours ...........
14 hours .........
8 hours 2 .........
8 hours ...........
2 hours ...........
$100 ...............
1.94 ................

6 hours ...........
20 hours .........
20 hours .........
20 hours .........
10 hours .........
$200 ...............
3.82 ................

8 hours ...........
16 hours .........
8 hours ...........
5 hours ...........
2 hours ...........
$100 ...............
1.00 ................

4 hours ...........
2 hours ...........
4 hours 3 .........
2 hours 4 .........
1 hours 4 .........
$100 ...............
3.55 ................

5 hours ...........
13 hours .........
15 hours .........
18 hours .........
8 hours ...........
$200 ...............
6.27 ................

Alternate Process .................................

LEAs ...............

IHEs ...............

Other.

Administrator ........................................
Adm. Assistant .....................................
Lawyer/Advisor 1 ...................................

3 hours 5 .........
14 hours .........
6 hours 3 .........

6 hours 6 .........
20 hours .........
10 hours.

4 hours.
8 hours.

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Other
2 hours.
6 hours.
2 hours.
2 hours.
1 hour.
$100.
2.20.

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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

Investigator ...........................................
Adjudicator ...........................................
Recording .............................................
# of Investigations ................................

6 hours ...........
2 hours ...........
$100 ...............
1.16 ................

15 hours.
8 hours.
$200 ...............
1.70 ................

LEAs

IHEs

Other

$100.
0.90.

1 When

present, the Department assumes two lawyers/advisors per investigation and adjudication.
Department assumes lawyers/advisors are involved in 15 percent of investigations and adjudications.
Department assumes lawyers/advisors are involved in 5 percent of investigations and adjudications.
4 The Department assumes investigators and adjudicators other than the Title IX Coordinator or another administrator would be used in approximately 25 percent of instances.
5 The Department assumes administrators also serve as adjudicators in 75 percent of instances and their burden doubles in such cases.
6 The Department assumes administrators also serve as adjudicators in 60 percent of instances and their burden doubles in such cases.
2 The

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3 The

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

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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

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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,

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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,

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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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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
33 Under 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.

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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

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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.

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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.’’

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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

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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

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41561

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.

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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 .....................................................................................................................................
Clarify scope of Title IX’s protection .........................................................................................................................................................
Clarify responsibilities toward students who are experiencing pregnancy or related conditions .............................................................

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Not quantified
Not quantified
Not quantified

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Category

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Benefits (calculated on an
annual basis)
Costs (calculated on an annual
basis)

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Reading and Understanding the Regulations ...........................................................................................................................................
Policy Revisions ........................................................................................................................................................................................
Publishing Notice of Nondiscrimination .....................................................................................................................................................
Training of Title IX Coordinators ...............................................................................................................................................................
Updating Training Materials ......................................................................................................................................................................
Supportive Measures ................................................................................................................................................................................
Group A Investigations ..............................................................................................................................................................................
Group B Investigations ..............................................................................................................................................................................
Appeal Process .........................................................................................................................................................................................
Informal Resolutions ..................................................................................................................................................................................
Creation and Maintenance of Documentation ..........................................................................................................................................

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.

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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

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3%
$2,811,001
4,782,718
236,894
2,770,531
2,264,868
6,996,204
2,741,547
(66,106,747)
21,084,353
12,830,088
6,425,456

7%
$3,286,360
5,591,508
276,955
2,818,407
2,647,873
6,996,204
2,741,547
(66,106,747)
21,084,353
12,830,088
6,761,161

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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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

Less than
two-year

Total

Not Small .........................................................................................................
Small ................................................................................................................

1,577
1,226

954
690

68
1,650

2,599
3,566

Total ..........................................................................................................

2,803

1,644

1,718

6,165

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
TABLE 2—NUMBER OF SMALL LEAS, more likely that small IHEs will conduct
FALL 2018
fewer investigations per year and
therefore, their actual realized costs will
LEAs
be less than those estimated herein.
Not Small ..............................
11,280 According to data from the Integrated
Small .....................................
6,518 Postsecondary Education Data System
(IPEDS), in FY 2019, small IHEs had, on
Total ...............................
17,798 average, total revenues of approximately
$10,349,540.34 Therefore, the
2.C. Estimate of the Projected Burden of Department estimates that the proposed
the Proposed Regulations on Small
regulations could generate a net cost for
Entities
small IHEs equal to approximately 0.08
percent of annual revenue. According to
As discussed throughout the RIA,
data from IPEDS, approximately 175
Group A institutions are those most
likely to see a net cost increase from the IHEs had total reported annual revenues
of less than $900,000, for which the
proposed regulations. As such, a Group
A IHE would fare worse than an IHE in
34 Based on data reported for FY 2020 for ‘‘total
Group B or Group C. As described in the
revenue and other additions’’ for public institutions
discussion of Developing the Model
and ‘‘total revenues and investment return’’ for
(Section 4.B), an IHE in Group A would private not-for-profit and private for-profit
see a net increase in costs of
institutions.
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.

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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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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

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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

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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
35 Executive 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.

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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

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the information collection for the
proposed regulations. If you need
further information, email
[email protected].
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.

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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:

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§ 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

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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

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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,

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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

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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

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(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

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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

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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.

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(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
■

§ 106.17
■

[Removed]

10. Section 106.16 is removed.
[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:

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■

§ 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.
*
*
*
*
*

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(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

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41571

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

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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

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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

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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

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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

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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

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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:

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§ 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

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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

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(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

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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

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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:
■

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§ 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

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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

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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

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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

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

jspears on DSK121TN23PROD with PROPOSALS2

(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,

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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.

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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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