Questions and Answers on the Title IX Regulations on Sexual Harassment (July 2021) (PDF)

Questions and Answers on the

Title IX Regulations on Sexual

Harassment (July 2021)

(Updated June 28,2022)

UNITED STATES

DEPARTMENT OF

EDUCATION

Office for Civil Rights

July 20, 2021 (Updated

June 28, 2022)

Questions and Answers on the Title IX Regulations on

Sexual Harassment and Appendix (July 2021) (Updated

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Table of Contents

Please note:

The Department of Education’s Office for Civil Rights will update the Questions and Answers below

as needed.

June 28, 2022

Questions 42, 51-54: Some aspects of the answers to these questions about the postsecondary hearing

requirements in the 2020 amendments to the Title IX regulations have been revised in light of the

federal district court ruling in Victim Rights Law Center et al. v. Cardona, No. 1:20-cv-11104, 2021 WL

3185743 (D. Mass. July 28, 2021), appeals pending (1st Cir). The court’s ruling vacated a part of the

regulation at 34 C.F.R. § 106.45(b)(6)(i), which prohibited a decision-maker at a postsecondary school

from considering statements not subject to cross-examination. Questions A through D below were also

added to Section XII to provide postsecondary schools with additional updated information in light of

the court's decision.

QUESTIONS AND ANSWERS

I. General Obligations .......................................................................................................... 3

Question 1: What did the 2020 amendments change about the Department’s Title IX regulations?

............................................................................................................................. 3

Question 2: Is a school permitted to take steps in response to reports of sexual harassment that go

beyond those set out in the 2020 amendments? ................................................... 3

Question 3: What does the Department expect from schools regarding prevention of sexual

harassment? ............................................................................................................ 4

Question 4: Are there any differences in the 2020 amendments’ requirements for elementary and

secondary schools and postsecondary schools? ..................................................... 4

II. Definition of Sexual Harassment ....................................................................................... 4

Question 5: What is the definition of sexual harassment in the 2020 amendments? ............. 4

Question 6: Do schools need to adopt a particular definition of consent for determining whether

conduct is “unwelcome” under the definition of sexual harassment in the 2020

amendments? ........................................................................................................ 6

Question 7: May a school respond to alleged sexual misconduct that does not meet the definition

of sexual harassment in the 2020 amendments? ................................................... 6

Question 8: How can a school determine whether sexual harassment “effectively denies a person’s

right to equal access to its education program or activity” under the “unwelcome

conduct” category in the definition of sexual harassment in the 2020 amendments? (See

the definition in Question 5.) ................................................................................... 7

III. Where Sexual Harassment Occurs ..................................................................................... 8

Question 9: Which settings are covered by the 2020 amendments? ...................................... 8

Question 10: How should a school determine whether it has substantial control over the respondent

and context in an off-campus setting? ................................................................... 9

Question 11: How do the 2020 amendments apply to alleged sexual harassment that takes place

electronically or on an online platform used by the school? .................................. 9

Question 12: How do the 2020 amendments apply to alleged sexual harassment that is perpetrated

by a student using a personal electronic device during class? .............................. 10

IV. When Harassment Occurred ........................................................................................... 10

Question 13: What is the appropriate standard for evaluating alleged sexual harassment that

occurred before the 2020 amendments took effect? ........................................... 10

V. Notice of Sexual Harassment .......................................................................................... 10

Question 14: Which school employees must be notified about allegations of sexual harassment for a

school to be put on notice that it must respond? ................................................ 10

Question 15: If a school trains or requires non-employees who interact with the school’s students to

report sexual harassment incidents, are those individuals (for example, volunteers,

alumni, independent contractors) automatically considered “officials with authority to

institute corrective measures” on the school’s behalf? ....................................... 11

Question 16: May a school accept reports of sexual harassment from individuals who are not

associated with the school in any way? ................................................................ 12

Question 17: Is a school required to respond to allegations of sexual harassment if the only

employee or school official who has notice of the harassment is the alleged harasser?

........................................................................................................................... 12

Question 18: Is a school required to respond if it has notice of alleged misconduct that could meet

the definition of sexual harassment but is not certain whether the harassment has

occurred? ............................................................................................................. 12

Question 19: Does a postsecondary school have discretion to require additional employees to report

allegations of sexual harassment to the school? .................................................. 12

VI. Response to Sexual Harassment ...................................................................................... 13

Question 20: How must a school respond to allegations of sexual harassment? ................... 13

Question 21: Is a school required to impose particular remedies when a respondent is found

responsible for sexual harassment? ..................................................................... 14

VII. Formal Complaints .......................................................................................................... 14

Question 22: What is a “formal complaint” under the 2020 amendments? ........................... 14

iii

Question 23: Is a school required to accept a formal complaint of sexual harassment from a

complainant who is not currently enrolled in or attending the school? ............... 15

Question 24: If a complainant has not filed a formal complaint and is not participating in or

attempting to participate in the school’s education program or activity, may the school’s

Title IX Coordinator file a formal complaint? ........................................................ 15

Question 25: If a complainant is not participating in or attempting to participate in the school’s

education program or activity, may a school respond to reports of sexual harassment

under its own code of conduct? ........................................................................... 16

Question 26: Is a school required to take action even if the respondent has left the school prior to

the filing of a formal complaint with no plans to return? ..................................... 16

Question 27: Is a school required to dismiss a formal complaint if a respondent leaves the school?

........................................................................................................................... 16

Question 28: May a school use trauma-informed approaches when responding to a formal

complaint? ............................................................................................................ 17

VIII. Handling Situations in Which a Party or Witness May be Unable to Participate in the Title IX

Grievance Process in Person .................................................................................................. 17

Question 29: May a school stop offering its Title IX grievance process due to the COVID-19

pandemic? ................................................................................................................ 17

Question 30: How should a school proceed in the Title IX sexual harassment grievance process when

a party or a witness is temporarily unable to participate due to a disability? ...... 17

Question 31: May a school use technology to permit participants to appear virtually in its Title IX

grievance process? ............................................................................................... 18

IX. Supportive Measures and Temporary Removal of Respondents from Campus ................ 18

Question 32: Does a school have to offer supportive measures to a complainant who has not filed a

formal complaint of sexual harassment? ............................................................. 18

Question 33: What are the supportive measures a school must offer to complainants? ....... 18

Question 34: Is a school still required to provide supportive measures during the COVID-19

pandemic? ................................................................................................................ 19

Question 35: May a school remove a respondent from campus while a Title IX grievance process is

pending if the school determines that the respondent is a threat to others? ...... 19

X. Presumption of No Responsibility ................................................................................... 19

Question 36: The 2020 amendments require schools to presume that the respondent is not

responsible for the alleged misconduct. Does this mean the school also must assume the

complainant is lying or that the alleged harassment did not occur? .................... 19

XI. Time Frames ................................................................................................................... 20

Question 37: What is the appropriate length of time for a school’s investigation into a complaint of

sexual harassment? .............................................................................................. 20

XII. Live Hearings and Cross-Examination .............................................................................. 21

Question 38: Are all schools required to hold live hearings as part of their Title IX grievance

processes? ............................................................................................................ 21

Question 39: What is cross-examination? ............................................................................... 21

Question 40: Since elementary and secondary schools are not required to provide a live hearing,

what kind of process are they required to provide? ............................................. 22

Question 41: Is a postsecondary school required to provide complainants and respondents with an

advisor for a live hearing? .................................................................................... 22

Question 42: Are parties and witnesses required to participate in the Title IX grievance process,

including submitting to cross-examination during a live hearing at the postsecondary

school level? ......................................................................................................... 23

Question 43: May a school create its own rules for conducting a live hearing? ..................... 23

Question 44: May a school put in place rules of decorum or other rules for advisors, parties, and

witnesses to follow during a live hearing? ............................................................ 23

Question 45: Are all parties required to be physically present in the same location during the live

hearing? ................................................................................................................... 24

Question 46: Is a school permitted to limit the questions that may be asked by each party of the

other party or witnesses? ..................................................................................... 24

Question 47: Are questions and evidence about the complainant’s sexual history relevant? 25

Question 48: Can cross-examination include questions about an individual’s medical or mental-

health records? ........................................................................................................ 25

Question 49: May a school put measures in place to protect the well-being of the parties during the

cross-examination? .............................................................................................. 25

Question 50: How do the 2020 amendments address the manner in which a decision-maker should

evaluate answers to cross-examination questions? ............................................. 26

Question 51: What are the consequences if a party or witness does not participate in a live hearing

or submit to cross-examination? .......................................................................... 26

Question 52: May a decision-maker at a postsecondary school rely on non-statement evidence, such

as photographs or video images, if a party or witness does not submit to cross-

examination? ............................................................................................................ 27

Question 53: May a decision-maker at a postsecondary school rely on statements of a party, such as

texts or emails, even if the party does not submit to cross-examination? ........... 27

Question 54: May a decision-maker rely on a video, text message, or other piece of evidence that

includes statements by multiple parties or witnesses if some of them do not submit to

cross-examination? ................................................................................................. 28

Question A: May a decision-maker at a postsecondary school consider statements made

by a party or witness who does not submit to cross-examination at a live

hearing? ................................................................................................................ 28

Question B: When did this court-ordered change in the regulation take effect? ...................... 28

Question C: What types of statements made by a party or witness who does not submit to cross-

examination at a live hearing may a decision-maker at a postsecondary school

consider? .............................................................................................................. 29

Question D: Despite the court’s decision, may a postsecondary school choose to maintain

the prohibition on considering statements made by a party or witness who does not

submit to cross-examination at a live hearing as part of its Title IX

grievance process? .............................................................................................. 29

Question 55: May a decision-maker rely on the statements of a party or witness who submits to

cross-examination, but does not answer questions posed by the decision-maker?29

XIII. Standard of Proof ............................................................................................................ 30

Question 56: What standard of proof must a school use when deciding whether a respondent is

responsible for committing sexual harassment? .................................................. 30

Question 57: May a school use a different standard of proof for formal complaints of sexual

harassment involving students and employees? .................................................. 30

XIV. Informal Resolution ........................................................................................................ 30

Question 58: May a school offer an informal resolution process, including restorative justice or

mediation, as a way to resolve a sexual harassment complaint? ......................... 30

Question 59: If a school chooses to offer an informal resolution process, are there any requirements

under Title IX? ...................................................................................................... 31

XV. Retaliation and Amnesty ................................................................................................. 31

Question 60: What is retaliation, and is it prohibited under the 2020 amendments? ............ 31

Question 61: May a school discipline a complainant, respondent, or witness for violating the school’s

COVID-19 or other policy during a reported incident of sexual harassment? ...... 32

Question 62: Is a school permitted to have an amnesty policy as a way to encourage reporting of

sexual harassment? .............................................................................................. 32

Question 63: May a school punish a complainant for filing a complaint if the decision-maker finds

that the respondent did not engage in the alleged sexual harassment? .............. 32

XVI. Forms of Sex Discrimination Other Than Sexual Harassment as Defined by the 2020

Amendments ......................................................................................................................... 33

Question 64: How should a school respond to complaints alleging sex discrimination that do not

include sexual harassment allegations? ............................................................... 33

Question 65: What constitutes a prompt and equitable grievance procedure under Title IX for

responding to complaints of sex discrimination that do not include sexual-harassment

allegations? .......................................................................................................... 33

XVII. ............................................................................................................. Religious Exemptions 33

Question 66: Are all schools that receive federal financial assistance required to comply with Title IX?

........................................................................................................................... 34

Question 67: May a student file a complaint with OCR against a school that has obtained an

assurance of a religious exemption from OCR? .................................................... 34

vii

June 28, 2022

Please note: This Appendix was updated to indicate language in example policies that should no longer

be relied upon following the federal district court ruling in Victim Rights Law Center et al. v. Cardona,

No. 1:20-cv-11104, 2021 WL 3185743 (D. Mass. July 28, 2021), appeals pending (1st Cir), which vacated

the language in 34 C.F.R. § 106.45(b)(6)(i) prohibiting a decision-maker at a postsecondary school from

considering statements not subject to cross-examination.

APPENDIX

I. Receiving and Responding to Reports of Sexual Harassment .......................................... 41

Example Policies Used by Elementary and Secondary Schools and Postsecondary Schools ..... 41

Example Policy Used by Elementary and Secondary Schools ................................................... 41

II. Supportive Measures ...................................................................................................... 42

Example Policies Used by Elementary and Secondary Schools and Postsecondary Schools ..... 42

III. Investigations .................................................................................................................. 43

Example Policies Used by Elementary and Secondary Schools and Postsecondary Schools ..... 43

Example Policies Used by Elementary and Secondary Schools ................................................ 43

IV. The Role of the Advisor ................................................................................................... 44

Example Policies Used by Postsecondary Schools .................................................................... 44

V. The Live Hearing Process ................................................................................................. 44

Example Policies Used by Postsecondary Schools .................................................................... 44

VI. Behavior During the Live Hearing/Rules of Decorum ....................................................... 47

Example Policies Used by Postsecondary Schools .................................................................... 47

VII. Protecting the Well-Being of the Parties During the Live Hearing/Investigation .............. 48

Example Policies Used by Postsecondary Schools .................................................................... 48

Example Policy Used by Elementary and Secondary Schools ................................................... 48

VIII. The Cross-Examination Process ....................................................................................... 48

Example Policies Used by Postsecondary Schools .................................................................... 48

IX. Restrictions on Considering a Complainant’s or Respondent’s Sexual History ................. 49

Example Policies Used by Elementary and Secondary Schools and Postsecondary Schools ..... 49

X. Situations in Which a Party or Witness Does Not Participate in a Live Hearing or in Cross-

examination ........................................................................................................................... 50

viii

Example Policies Used by Postsecondary Schools .................................................................... 50

XI. Presumptions about Complainants, Respondents, and Witnesses................................... 51

Example Policies Used by Elementary and Secondary Schools and Postsecondary Schools ..... 52

XII. Determination Regarding Responsibility ......................................................................... 52

Example Policies Used by Elementary and Secondary Schools and Postsecondary Schools ..... 52

XIII. Sanctions and Remedies ................................................................................................. 53

Example Policies Used by Elementary and Secondary Schools and Postsecondary Schools ..... 53

XIV. Appeals ........................................................................................................................... 54

Example Policies Used by Elementary and Secondary Schools and Postsecondary Schools ..... 54

XV. Informal Resolution ........................................................................................................ 56

Example Policies Used by Elementary and Secondary Schools and Postsecondary Schools .... 56

XVI. Addressing Conduct That the School Deems to be Sexual Harassment but Does Not Meet the

Definition of Sexual Harassment Under the Title IX Regulations ............................................ 57

Example Policies Used by Elementary and Secondary Schools and Postsecondary Schools ..... 57

XVII. Parent and Guardian Rights ................................................................................................... 58

Example Policy Used by Elementary and Secondary Schools ................................................... 58

Questions and Answers on the Title IX Regulations on Sexual Harassment (July 2021)

Ensuring equal access to education for all students—from pre-K through elementary and

secondary schools and postsecondary institutions—is at the heart of the mission of the U.S.

Department of Education’s Office for Civil Rights. This includes protecting rights of students and

others to an educational environment free from discrimination based on sex, including

discrimination in the form of sexual harassment and discrimination based on sexual orientation

or gender identity, as guaranteed by Title IX of the Education Amendments of 1972.

This question-and-answer resource describes OCR’s interpretation of schools’ responsibilities

under Title IX, and the Department’s current implementing regulations related to sexual

harassment, as enforced by OCR. The focus here is on questions related to the most recent

amendments to the regulations in 2020 (the 2020 amendments).

The Department is undertaking

a comprehensive review of its current Title IX regulations as amended in 2020, following

President Biden’s Executive Order on Guaranteeing an Educational Environment Free from

Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity. While this

review is ongoing and until any new regulations go into effect, the 2020 amendments remain in

effect.

This Q&A does not address policies or procedures under Title VII of the Civil Rights Act of 1964,

which prohibits sex discrimination in employment. As the 2020 amendments state: “Nothing in

[these regulations] 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.” 34 C.F.R.

§ 106.6(f).

For additional information about Title IX, please also see OCR’s Title IX and Sex Discrimination

Webpage and OCR’s Sex Discrimination FAQ Webpage. You can find the Department’s Title IX

regulations, including the 2020 amendments, at 34 C.F.R. Part 106.

This Q&A has 17 sections and provides information on a variety of topics covered by the 2020

amendments, including the definition of sexual harassment, how a school can obtain notice of

sexual harassment, a school’s response to allegations of sexual harassment, and how a school

must process formal complaints of sexual harassment, including live hearings and cross-

examination.

 Preamble references: Please note that where appropriate, this Q&A refers to the

preamble to the 2020 amendments, which clarifies OCR’s interpretation of Title IX and

the regulations. You can find citations to specific preamble sections in the endnotes of

this Q&A. The preamble itself does not have the force and effect of law.

 Q&A Appendix: OCR provides an appendix to accompany this Q&A, with examples of

policy provisions from various schools. These examples may be helpful as schools

continue their work to implement the requirements of the 2020 amendments.

Who can file a discrimination complaint – and how to file: Anyone can file a complaint with OCR,

including students, parents and guardians, community members, and others who experience or

observe discrimination in education programs or activities. To file a complaint, please use this

online form. For more information, see How to File a Discrimination Complaint with the Office

for Civil Rights and this short video on How to File a Complaint with the Office for Civil Rights.

Additional questions? Please note that this Q&A addresses many important issues but is not

comprehensive. We recognize that you might have additional questions and invite you to send

them to OCR at [email protected].

Alternate formats for accessibility: On request, this publication is available in alternate formats,

such as Braille or large print. For more information, please contact the Department’s Alternate

Format Center at 202-260-0818 or via e-mail at [email protected].

Translation Services: The Department offers language assistance services for all publicly available

Department information. These services are free of charge. For more information about

interpretation or translation services, please see the Department’s Notice to Persons with

Limited English Proficiency.

Please note: This Q&A resource does not have the force and effect of law and is not meant to

bind the public or regulated entities in any way. This document is intended only to provide clarity

to the public regarding OCR’s interpretation of existing legally binding statutory and regulatory

requirements. As always, OCR’s enforcement of Title IX stems from Title IX and its implementing

regulations, not this or other guidance documents.

A mini-glossary for this Q&A:

This Q&A is geared towards recipients of federal financial assistance that are educational

institutions and uses the term “schools” to refer to all such recipients, including school districts,

colleges, and universities. It also includes several terms that are commonly used in Title IX

grievance processes for formal complaints of sexual harassment. Here is information about what

those terms mean in this document:

Allegation: An assertion that someone has engaged in sexual

harassment.

Complainant: The person who has experienced the alleged sexual

harassment. This person is considered a complainant

regardless of whether they choose to file a formal

complaint of sexual harassment under Title IX.

Respondent: The person accused of the alleged sexual harassment.

Reporter: The person who reports sexual harassment to the school.

This may be the complainant but may also be someone

else (also known as a “third party” reporter).

Title IX grievance process: This is the formal name used in the Title IX regulations for

a school’s process for addressing formal complaints of

sexual harassment under Title IX.

Actual knowledge: When a school receives notice of alleged misconduct that

meets the definition of “sexual harassment” under the

Title IX regulations, as described below, the school has

“actual knowledge” and must respond appropriately.

Additional information regarding how schools receive

notice and have “actual knowledge” is discussed in

Question 14.

I. General Obligations

Question 1: What did the 2020 amendments change about the Department’s Title IX

regulations?

Answer 1: The Department’s Title IX regulations were first issued in 1975, reissued in 1980,

and then amended after that, including in 2006 and 2020. Prior to 2020, the regulations set out

requirements under Title IX for educational programs and activities that receive federal financial

aid, but they did not include specific requirements related to sexual harassment. Instead, OCR

had several guidance documents in place to assist schools in understanding how OCR interpreted

the Department’s Title IX regulations. The 2020 amendments added specific, legally binding steps

that schools must take in response to notice of alleged sexual harassment.

Question 2: Is a school permitted to take steps in response to reports of sexual harassment

that go beyond those set out in the 2020 amendments?

Answer 2: Yes. The 2020 amendments set out the minimum steps that a school must take in

response to notice of alleged sexual harassment. A school may take additional actions so long as

those actions do not conflict with Title IX or the 2020 amendments. The preamble provides this

additional guidance:

A school “remain[s] free to adopt best practices for supporting survivors and standards of

competence for conducting impartial grievance processes, while meeting obligations

imposed under the [2020 amendments].”

Question 3: What does the Department expect from schools regarding prevention of sexual

harassment?

Answer 3: The 2020 amendments focus on “setting forth requirements for [schools’]

responses to sexual harassment.”

However, the preamble also says 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.”

OCR encourages schools to

undertake prevention efforts that best serve the needs, values, and environment of their own

educational communities.

Question 4: Are there any differences in the 2020 amendments’ requirements for

elementary and secondary schools and postsecondary schools?

Answer 4: Yes. Although the 2020 amendments have many of the same requirements for

elementary and secondary and postsecondary schools, there are two requirements that differ –

notice and live hearings.

o Notice: Any time an elementary or secondary school employee has notice that sexual

harassment might have occurred, the school must respond. Notice requirements are

more limited for postsecondary school employees. See Section V for more information

on notice requirements.

o Live hearing: Only postsecondary schools are required to provide for a live hearing with

the opportunity for cross-examination to be conducted by each party’s advisor of

choice. For more information on live hearings and cross-examination, see Section XII.

II. Definition of Sexual Harassment

Question 5: What is the definition of sexual harassment in the 2020 amendments?

Answer 5: The 2020 amendments define sexual harassment to include certain types of

unwelcome sexual conduct, sexual assault, dating violence, domestic violence, and stalking. Here

is the full definition in the regulations:

Sexual harassment means conduct on the basis of sex that satisfies one or more of the

following:

(1) An employee of the [school] 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 school’s education program or activity; or

(3) ‘Sexual assault’ as defined in 20 U.S.C. 1092(f)(6)(A)(v), ‘dating violence’ as

defined in 34 U.S.C. 12291(a)(10), ‘domestic violence’ as defined in 34 U.S.C.

12291(a)(8), or ‘stalking’ as defined in 34 U.S.C. 12291(a)(30).

For additional information, please see 34 C.F.R. § 106.30.

When unwelcome conduct on the basis of sex meets one or more of these three categories, the

conduct is considered to be sexual harassment under the 2020 amendments. Here is some

additional information about each category:

• The first category is commonly referred to as “quid pro quo” sexual harassment, meaning

that a school employee offers something to an individual in exchange for sexual conduct.

• The second category incorporates the definition of sexual harassment set out by the

Supreme Court in a case about when a school may be required to pay financial

compensation in a lawsuit for sexual harassment by one student toward another student.

The case is Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).

• The third category refers to definitions in the Clery Act and the Violence Against Women

Act (VAWA). The Clery Act is a federal law that requires colleges and universities that

participate in the federal student financial aid programs to provide current and

prospective students and employees, the public, and the Department with crime statistics

and information about campus crime prevention programs and policies. VAWA is a

federal law administered by the U.S. Departments of Justice (DOJ) and Health and Human

Services (HHS) that supports comprehensive responses to domestic violence, sexual

assault, dating violence, and stalking.

Definitions under the Clery Act: The Clery Act defines sexual assault as a forcible or

nonforcible offense under the uniform crime reporting system of the Federal Bureau of

Investigation.

This system includes the National Incident-Based Reporting System

(NIBRS), which defines forcible sex offenses to include any sexual act, including rape,

sodomy, sexual assault with an object, or fondling “directed against another person,

without the consent of the victim including instances where the victim is incapable of

giving consent.” Please see Question 6 explaining that the 2020 amendments do not

require schools to use a particular definition of consent. NIBRS also includes incest and

statutory rape as “nonforcible” sex offenses.

Conduct that fits within any of these

definitions under NIBRS is considered a type of sexual harassment in the 2020

amendments.

Definitions under VAWA: The 2020 amendments refer to the following definitions of

dating violence, domestic violence, and stalking in VAWA:

• Dating violence includes violence committed by a person who has been in a social

relationship of a romantic or intimate nature with the complainant; the existence

of such a relationship shall be determined based on consideration of the length of

the relationship, the type of relationship, and the frequency of interaction

between the persons involved in the relationship.

• Domestic violence includes felony or misdemeanor crimes of violence committed

by: a current or former spouse or intimate partner of the complainant, a person

with whom the complainant shares a child, a person who is cohabitating with or

has cohabitated with the complainant as a spouse or intimate partner, a person

similarly situated to a spouse of the complainant under the jurisdiction’s domestic

or family violence laws, or any other person against a complainant who is

protected under the domestic or family violence laws of the jurisdiction.

• Stalking is defined as engaging in a course of conduct directed at a specific person

that would cause a reasonable person to fear for their own safety or the safety of

others or to suffer substantial emotional distress.

The 2020 amendments cover

instances of stalking based on sex—including stalking that occurs online or

through messaging platforms, commonly known as cyber-stalking—when it occurs

in the school’s education program or activity.

Question 6: Do schools need to adopt a particular definition of consent for determining

whether conduct is “unwelcome” under the definition of sexual harassment in

the 2020 amendments?

Answer 6: No. The preamble states that the Department will not require a school to adopt a

particular definition of consent.

The preamble explains that a school has the flexibility to choose

a definition of consent that “best serves the unique needs, values, and environment of the

[school’s] own educational community.”

Question 7: May a school respond to alleged sexual misconduct that does not meet the

definition of sexual harassment in the 2020 amendments?

Answer 7: Yes. The preamble makes clear that “Title IX is not the exclusive remedy for sexual

misconduct or traumatic events that affect students.”

A school has discretion to respond

appropriately to reports of sexual misconduct that do not fit within the scope of conduct covered

by the Title IX grievance process.

This may include, for example, reported sexual misconduct

that a) occurs outside of a school’s education program or activity; b) occurs outside of the United

States; or c) causes harm in the school environment that does not fit within the definition set out

above in Question 5.

The preamble also says that “nothing in the final regulations precludes [a school] from vigorously

addressing misconduct (sexual or otherwise) that occurs outside the scope of Title IX or from

offering supportive measures to students and individuals impacted by misconduct or trauma.”

Put simply, Title IX’s sexual harassment regulation need not replace a school’s more expansive

code of conduct and does not prohibit a school from enforcing that code to address misconduct

that does not constitute sexual harassment under the 2020 amendments. OCR encourages

schools to develop and enforce their codes as an additional tool for ensuring safe and supportive

educational environments for all students. OCR does not enforce school codes of conduct but

may investigate complaints that a school’s code of conduct treated students differently based on

sex, including sexual orientation or gender identity.

For examples of school codes that address sexual misconduct not covered by Title IX, please see

Q&A Appendix Section XVI.

Question 8: How can a school determine whether sexual harassment “effectively denies a

person’s right to equal access to its education program or activity” under the

“unwelcome conduct” category in the definition of sexual harassment in the

2020 amendments? (See the definition in Question 5.)

Answer 8: The preamble explains that to determine whether a person has been effectively

denied equal access to a school’s education program or activity, a school must evaluate “whether

a reasonable person in the complainant’s position would be effectively denied equal access to

education compared to a similarly situated person who is not suffering the alleged sexual

harassment.”

The preamble provides this additional guidance to schools:

• An effective denial of equal access to educational opportunities may include skipping class

to avoid a harasser, a decline in a student’s grade point average, or having difficulty

concentrating in class.

• Examples of specific situations that likely constitute effective denial of equal access to

educational opportunities also include “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.”

• A complainant does not need to have “already suffered loss of education before being

able to report sexual harassment.”

• Effective denial of equal access to education does not require “that a person’s total or

entire educational access has been denied.”

• While these examples help illustrate an effective denial of access, “[n]o concrete injury is

required” to prove an effective denial of equal access.

• Complainants do not need to have “dropped out of school, failed a class, had a panic

attack, or otherwise reached a ‘breaking point’” or exhibited specific trauma symptoms

to be effectively denied equal access.

• “School officials turning away a complainant by deciding the complainant was ‘not

traumatized enough’ would be impermissible.”

Schools may wish to include these and other examples in their internal policies, training, and

communications to students and employees to help illustrate this concept.

III. Where Sexual Harassment Occurs

Question 9: Which settings are covered by the 2020 amendments?

Answer 9: The 2020 amendments apply to reports of sexual harassment in education

programs and activities in the United States, including in the following settings:

1. Buildings or other locations that are part of the school’s operations, including remote

learning platforms;

2. Off-campus settings if the school exercised substantial control over the respondent and

the context in which the alleged sexual harassment occurred (e.g., a school field trip to a

museum); and

3. Off-campus buildings owned or controlled by a student organization officially recognized

by a postsecondary school, such as a building owned by a recognized fraternity or

sorority.

For additional information, please see 34 C.F.R. § 106.44(a). For more information on how a

school can determine whether it has substantial control over the respondent and context in an

off-campus setting, see Question 10.

The 2020 amendments require that schools provide training to their Title IX personnel to

“accurately identify situations that require a response under Title IX.”

OCR also encourages

schools to include examples of their programs and activities in each of the three areas described

above in their policies, staff training, and student-oriented communications.

Please note that sexual harassment that takes place in settings outside of the United States is not

covered under the 2020 amendments.

Schools should also note that, under the 2020 amendments, a school may still offer “supportive

measures to a complainant who reports sexual harassment that occurred outside the [school’s]

education program or activity, and any sexual harassment that does occur in an education

program or activity must be responded to even if it related to, or happens subsequent to, sexual

harassment that occurred outside the education program or activity.”

Question 10: How should a school determine whether it has substantial control over the

respondent and context in an off-campus setting?

Answer 10: The school must make a fact-specific determination. The preamble says that it

“may be helpful or useful for a [school] to consider factors applied by Federal courts to determine

the scope of a [school’s] education program or activity”—such as “whether the [school] funded,

promoted, or sponsored the event or circumstance where the alleged harassment occurred”—

but also that “no single factor is determinative” in concluding whether the school has substantial

control over the respondent and the context in which the reported harassment occurred.

In making this fact-specific determination, the preamble also says:

A school “must consider whether, for example, a sexual harassment incident between

two students that occurs in an off-campus apartment” or house is a “situation over which

the [school] exercised substantial control [and], if so, the [school] must respond [to

notice] of sexual harassment or allegations of sexual harassment that occurred there.”

If an incident of sexual harassment between two students in a private hotel room occurs in a

context related to a school-sponsored activity, such as a school field trip or travel with a school

athletics team, the school would need to consider whether it exercised substantial control over

the context in which the sexual harassment occurred.

The preamble adds that a school may have substantial control over an incident that occurred in

a student’s home, such as where “a teacher employed by a school visits a student’s home

ostensibly to give the student a book but in reality to instigate sexual activity with the student.”

Question 11: How do the 2020 amendments apply to alleged sexual harassment that takes

place electronically or on an online platform used by the school?

Answer 11: In discussing Title IX and online platforms used by a school, the preamble provides

this guidance to schools:

• The operations of a school “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 [school].”

• “[T]he factual circumstances of online harassment must be analyzed to determine if it

occurred in an education program or activity.”

The preamble adds that the definition of “education program or activity” in the 2020

amendments “does not create a distinction between sexual harassment occurring in person

versus online.”

Question 12: How do the 2020 amendments apply to alleged sexual harassment that is

perpetrated by a student using a personal electronic device during class?

Answer 12: The preamble explains that “a student using a personal device to perpetrate

online sexual harassment during class time may constitute a circumstance over which the

[school] exercises substantial control.”

As with in-person harassment, “the factual

circumstances of online harassment must be analyzed to determine if it occurred” in

circumstances “over which a school exercised substantial control over the respondent and the

context.”

IV. When Harassment Occurred

Question 13: What is the appropriate standard for evaluating alleged sexual harassment that

occurred before the 2020 amendments took effect?

Answer 13: The 2020 amendments took effect on August 14, 2020, and are not retroactive.

This means that a school must follow the requirements of the Title IX statute and the regulations

that were in place at the time of the alleged incident; the 2020 amendments do not apply to

alleged sexual harassment occurring before August 14, 2020. This is true even if the school’s

response was on or after this date. In other words, if the conduct at issue in the complaint took

place prior to August 14, 2020, the 2020 amendments do not apply even if the complaint was

filed with a school on or after August 14, 2020.

Before August 2020, the Title IX regulations did not have specific requirements for schools

related to sexual harassment. Instead, OCR had several guidance documents in place to assist

schools in understanding how OCR interpreted the Department’s Title IX regulations. Although

the guidance documents issued in 2011 and 2014 were rescinded in 2017, and the 2001 and

2017 guidance documents were rescinded in 2020, these documents remain accessible on

OCR’s website for historical purposes to the extent they are helpful to schools when responding

to earlier allegations of sexual harassment.

V. Notice of Sexual Harassment

Question 14: Which school employees must be notified about allegations of sexual

harassment for a school to be put on notice that it must respond?

Answer 14: In elementary and secondary school settings, a school must respond whenever

any school employee has notice of sexual harassment.

This includes notice to a teacher,

teacher’s aide, bus driver, cafeteria worker, counselor, school resource officer, maintenance staff

worker, coach, athletic trainer, or any other school employee.

In postsecondary school settings, notice may be more limited in scope. The institution must

respond when notice is received by the Title IX Coordinator or another official who has authority

to institute corrective measures on the institution’s behalf.

The Department is unable to

provide examples of types of individuals who have this authority because the determination of

whether a person is an official who has authority to institute corrective measures on behalf of

the institution depends on facts specific to that institution. A school “may, at its discretion,

expressly designate specific employees as officials with this authority for purposes of Title IX

sexual harassment and may inform students of such designations.”

The preamble explains that “the Department does not limit the manner in which [a school] may

receive notice of sexual harassment.” This means that the employees described above “may

receive notice through an oral report of sexual harassment by a complainant or anyone else, a

written report, through personal observation, through a newspaper article, through an

anonymous report, or through various other means.”

The 2020 amendments refer to this notice of sexual harassment as “actual knowledge.”

For additional information, please see 34 C.F.R. § 106.30.

Question 15: If a school trains or requires non-employees who interact with the school’s

students to report sexual harassment incidents, are those individuals (for

example, volunteers, alumni, independent contractors) automatically

considered “officials with authority to institute corrective measures” on the

school’s behalf?

Answer 15: No. The 2020 amendments state that at any school level—elementary, secondary,

or postsecondary—“[t]he 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 [such as a volunteer parent, or alumnus] as one who has authority to institute

corrective measures on behalf of the [school].”

The preamble explains that “the Department does not wish to discourage [schools] from training

individuals who interact with the [school’s] students about how to report sexual harassment.”

It also says that “the Department will not assume that a person is an official with authority solely

based on the fact that the person has received training on how to report sexual harassment.”

Similarly, the preamble says that “the Department will not conclude that volunteers and

independent contractors are officials with authority, unless the [school] has granted the

volunteers or independent contractors authority to institute corrective measures on behalf of

the [school].”

For additional information, please see 34 C.F.R. § 106.30.

Question 16: May a school accept reports of sexual harassment from individuals who are not

associated with the school in any way?

Answer 16: Yes. A school may receive actual knowledge of sexual harassment from any

person.

There is no requirement that the person be participating in or attempting to participate

in a school program or activity to report sexual harassment.

Question 17: Is a school required to respond to allegations of sexual harassment if the only

employee or school official who has notice of the harassment is the alleged

harasser?

Answer 17: Not under the 2020 amendments. At any school level—elementary, secondary, or

postsecondary—the school does not have notice for purposes of Title IX if the only official or

employee of the school with actual knowledge is the respondent.

The preamble explains the

reason for this is that the school “will not have [an] opportunity to appropriately respond if the

only official or employee who knows [of the alleged misconduct] is the respondent.”

For additional information, please see 34 C.F.R. § 106.30.

Question 18: Is a school required to respond if it has notice of alleged misconduct that could

meet the definition of sexual harassment but is not certain whether the

harassment has occurred?

Answer 18: Yes. At any school level—elementary, secondary, or postsecondary—actual

knowledge refers to notice of conduct that could constitute sexual harassment.

A complainant

is “an individual who is alleged to be the victim of conduct that could constitute sexual

harassment” and the definition of actual knowledge refers to “allegations of sexual

harassment.”

Thus, the preamble explains that a school must respond promptly and

appropriately when it receives notice of alleged facts that, if true, could be considered sexual

harassment under the 2020 amendments.

For additional information, please see 34 C.F.R. § 106.30.

Question 19: Does a postsecondary school have discretion to require additional employees to

report allegations of sexual harassment to the school?

Answer 19: Yes. The preamble says that a postsecondary school may empower as many

officials as it wishes to institute corrective measures on its behalf, including coaches and athletic

trainers.

If any of these officials receives notice of sexual harassment allegations, the school

must respond as the 2020 amendments require (see Question 20).

The preamble also provides

this guidance:

• A postsecondary school has discretion to determine which of their employees should be

mandatory reporters, and which employees may keep a student’s disclosure about sexual

harassment confidential (e.g., counselors, therapists, other mental health providers,

victim advocates).

• Nothing in the 2020 amendments prevents a postsecondary school “from instituting [its]

own polic[y] to require professors, instructors, or all employees to report to the Title IX

Coordinator every incident and report of sexual harassment.”

However, the

Department will not hold a postsecondary school responsible for responding to such

sexual harassment unless an employee “actually did give notice to the [school’s] Title IX

Coordinator” or other official with authority to institute corrective measures.

• A postsecondary school may also “empower as many officials as it wishes with the

requisite authority to institute corrective measures on the [school’s] behalf, and notice to

these officials with authority constitutes the [school’s] actual knowledge.”

postsecondary school “may also publicize [a] list[] of officials with this authority,” and OCR

encourages postsecondary schools to do so, as this will assist students and others to

understand which reports will require the school to respond.

VI. Response to Sexual Harassment

Question 20: How must a school respond to allegations of sexual harassment?

Answer 20: When a school has actual knowledge of sexual harassment in any of its programs

or activities that take place in the United States, it must “respond promptly in a manner that is

not deliberately indifferent.”

This includes schools that serve any age, grade, or level of

students, from pre-K through postsecondary.

The Title IX Coordinator must promptly contact the complainant to discuss the availability of

supportive measures, regardless of whether a formal complaint is filed, and to explain the

process for filing a formal complaint.

For more on supportive measures, see Questions 32-34.

In addition, if a formal complaint is filed, either by the complainant or the Title IX Coordinator, a

school must:

• offer supportive measures to the respondent, and

• follow the Title IX grievance process specified by the 2020 amendments.

For more on

this process, including the requirement to offer supportive measures to the respondent,

see Question 26 and Section IX.

In addition to setting out these requirements, the regulations provide that a school is deliberately

indifferent “only if its response to sexual harassment is clearly unreasonable in light of the known

circumstances.”

For more information on the obligations described in this section, please see 34 C.F.R. §

106.44(a).

Question 21: Is a school required to impose particular remedies when a respondent is found

responsible for sexual harassment?

Answer 21: No. The 2020 amendments do not dictate that a school provide any particular

remedies for the complainant or disciplinary sanctions for the respondent after a finding of

responsibility.

Each school is free to make disciplinary and remedial decisions that it “believes

are in the best interest of [its] educational environment.”

When a school finds a respondent responsible for sexual harassment under its Title IX grievance

process, the school must provide remedies to the complainant that are “designed to restore or

preserve equal access to the [school’s] education program or activity.”

These remedies may

include the same individualized services that the school provided to the complainant as

supportive measures, additional services, or different services.

These remedies can be

disciplinary or punitive and can burden the respondent.

Schools are required to “[d]escribe the

range of possible disciplinary sanctions and remedies or list the possible disciplinary sanctions

and remedies,”

however the preamble clarifies that this requirement “is not intended to

unnecessarily restrict a [school’s] ability to tailor disciplinary sanctions to address specific

situations.”

For additional information, please see 34 C.F.R. § 106.45(b)(1)(i), 34 C.F.R. § 106.45(b)(1)(vi), and

34 C.F.R. § 106.45(b)(7)(ii)(E).

VII. Formal Complaints

Question 22: What is a “formal complaint” under the 2020 amendments?

Answer 22: A “formal complaint” is a document filed by a complainant alleging sexual

harassment against a respondent and requesting that the school investigate the allegation of

sexual harassment.

It may be a hard copy document or an electronic document submitted via

email or an online portal.

Whether it is a hard copy document or an electronic document, it

must contain the complainant’s physical or digital signature or otherwise indicate that the

complainant is the person filing the formal complaint.

For example, an email from a student to

the Title IX Coordinator that ends with the student signing their name would suffice.

A formal complaint may be filed with the school’s Title IX Coordinator in person, by mail, or by

email using the contact information provided by the school. A formal complaint may also be filed

by any additional method designated by the school.

A parent or guardian who has a legal right

to act on behalf of an individual may also file a formal complaint on that individual’s behalf.

addition, a Title IX Coordinator may initiate a formal complaint as described in Question 24.

For additional information, please see 34 C.F.R. § 106.30.

Question 23: Is a school required to accept a formal complaint of sexual harassment from a

complainant who is not currently enrolled in or attending the school?

Answer 23: Yes, but only if the complainant is attempting to participate in the school’s

education program or activity at the time they file the formal complaint.

Individuals who are

currently participating in the school’s education program or activity may also file formal

complaints.

When a formal complaint is filed, the school must respond as described in Question

20.

The preamble gives several examples of situations of a complainant “attempting to participate”

in a school’s education program, including when a complainant:

(1) has withdrawn from the school due to alleged sexual harassment and expresses a

desire to re-enroll if the school responds appropriately to the allegations,

(2) has graduated but intends to apply to a new program or intends to participate in

alumni programs and activities,

(3) is on a leave of absence and is still enrolled as a student or intends to re-apply after

the leave of absence, or

(4) has applied for admission.

It is important to keep in mind that this requirement concerns a complainant’s status at the time

a formal complaint is filed and is not affected by a complainant’s later decision to remain or leave

the school.

Question 24: If a complainant has not filed a formal complaint and is not participating in or

attempting to participate in the school’s education program or activity, may the

school’s Title IX Coordinator file a formal complaint?

Answer 24: Yes. A Title IX Coordinator may file a formal complaint even if the complainant is

not associated with the school in any way.

In some cases, a school may be in violation of Title IX if the Title IX Coordinator does not do so.

For example, the preamble explains that if a school “has actual knowledge of a pattern of alleged

sexual harassment by a perpetrator in a position of authority,” OCR may find the school to be

deliberately indifferent (i.e., to have acted in a clearly unreasonable way) if the school’s Title IX

Coordinator does not sign a formal complaint, “even if the complainant . . . does not wish to file

a formal complaint or participate in a grievance process.”

Put simply, there are circumstances

when a Title IX Coordinator may need to sign a formal complaint that obligates the school to

initiate an investigation regardless of the complainant’s relationship with the school or interest

in participating in the Title IX grievance process. This is because the school has a Title IX obligation

to provide all students, not just the complainant, with an educational environment that does not

discriminate based on sex.

Question 25: If a complainant is not participating in or attempting to participate in the

school’s education program or activity, may a school respond to reports of

sexual harassment under its own code of conduct?

Answer 25: Yes. As discussed in Question 7, a school has discretion to use its own student-

conduct process to address alleged misconduct not covered by the 2020 amendments. This

includes situations where a complainant is not participating in or attempting to participate in the

school’s education program or activity.

There are also circumstances when a Title IX

Coordinator may need to file a formal complaint that obligates the school to initiate an

investigation regardless of the complainant’s relationship with the school or interest in

participating in the Title IX grievance process. See Question 24.

Question 26: Is a school required to take action even if the respondent has left the school prior

to the filing of a formal complaint with no plans to return?

Answer 26: Yes. As explained in the preamble, a school must always respond promptly to a

complainant’s report of sexual harassment when it has actual knowledge.

(For more on actual

knowledge, see Question 14.) The Title IX Coordinator must inform the complainant about the

availability of supportive measures, with or without the filing of a formal complaint, and consider

the complainant’s wishes regarding supportive measures.

Question 27: Is a school required to dismiss a formal complaint if a respondent leaves the

school?

Answer 27: No. Although a school may dismiss a formal complaint if, at any time during the

grievance process, the respondent is “no longer enrolled or employed” by the school, dismissal

is not required.

The preamble explains that a school has discretion to assess the facts and

circumstances of a case before deciding whether to dismiss the complaint because the

respondent has left the school.

A school may consider, for example, “whether a respondent poses an ongoing risk to the

[school’s] community,” or “whether a determination regarding responsibility provides a benefit

to the complainant even where the [school] lacks control over the respondent and would be

unable to issue disciplinary sanctions, or other reasons.”

Proceeding with the grievance process could potentially allow a school to determine the scope

of the harassment, whether school employees knew about it but failed to respond, whether there

is a pattern of harassment in particular programs or activities, whether multiple complainants

experienced harassment by the same respondent, and what appropriate remedial actions are

necessary.

Question 28: May a school use trauma-informed approaches when responding to a formal

complaint?

Answer 28: Yes. A school may use trauma-informed approaches to respond to a formal

complaint of sexual harassment. The preamble clarifies that the 2020 amendments do not

preclude a school “from applying trauma-informed techniques, practices, or approaches,” but

notes that the use of such approaches must be consistent with the requirements of 34 C.F.R. §

106.45, particularly 34 C.F.R. § 106.45(b)(1)(iii).

VIII. Handling Situations in Which a Party or Witness May be Unable to Participate in the

Title IX Grievance Process in Person

Question 29: May a school stop offering its Title IX grievance process due to the COVID-19

pandemic?

Answer 29: No. A school must follow its policies for receiving and responding to reports of

sexual harassment and may not adopt a policy of putting investigations or proceedings on hold

due to COVID-19.

For additional discussion of schools’ ongoing Title IX obligations during the COVID-19 pandemic,

please see OCR’s Questions and Answers on Civil Rights and School Reopening in the COVID-19

Environment.

Question 30: How should a school proceed in the Title IX sexual harassment grievance process

when a party or a witness is temporarily unable to participate due to a disability?

Answer 30: A school has “discretion to apply limited extensions of time frames during the

grievance process for good cause, which may include, for example, a temporary postponement

of a hearing to accommodate a disability.”

However, when deciding whether to grant a delay

or extension, a school must balance the interests of promptness, fairness to the parties, and

accuracy of adjudications. The school also must promptly notify all parties of the reason for the

delay and the estimated length of the delay, in addition to important updates about the

investigation.

Additionally, a school must not delay investigations or hearings solely because in-person

interviews or hearings are not feasible. Instead, a school must use technology, as appropriate, to

conduct activities remotely, in a timely and equitable manner, and consistent with the applicable

law.

For additional information, please see 34 C.F.R. § 106.45(b)(1)(v).

Question 31: May a school use technology to permit participants to appear virtually in its Title

IX grievance process?

Answer 31: Yes. The 2020 amendments grant a school discretion to allow participants,

including witnesses, to appear at a live hearing virtually; however, technology must enable all

participants to see and hear other participants,

with appropriate accommodations for

individuals with disabilities.

For additional information, please see 34 C.F.R. § 106.45(b)(6)(i).

IX. Supportive Measures and Temporary Removal of Respondents from Campus

Question 32: Does a school have to offer supportive measures to a complainant who has not

filed a formal complaint of sexual harassment?

Answer 32: Yes. The 2020 amendments specify that the school must contact the complainant

to discuss the availability of, and to offer, supportive measures, regardless of whether a formal

complaint is filed.

A school must also consider the complainant’s wishes with respect to

supportive measures.

For additional information, please see 34 C.F.R. § 106.30 and 34 C.F.R. § 106.44(a).

Question 33: What are the supportive measures a school must offer to complainants?

Answer 33: A school must offer supportive measures that “are designed to restore or

preserve equal access to the [school’s] education program or activity.”

100

The 2020 amendments

add that these include “measures designed to protect the safety of all parties or the [school’s]

educational environment, or deter sexual harassment.”

101

A school also must consider the

complainant’s wishes in determining which supportive measures to provide and may not provide

supportive measures that “unreasonably burden[] the other party.”

102

A school has discretion and flexibility to determine which supportive measures are appropriate.

The preamble states that a school must consider “each set of unique circumstances” to

determine what individualized services would be appropriate based on the “facts and

circumstances of that situation.”

103

Examples of supportive measures include “counseling, extensions of deadlines or other course-

related adjustments, modifications of work or class schedules, campus escort services, mutual

restrictions on contact between the parties, changes in work or housing locations, leaves of

absence, increased security and monitoring of certain areas of the campus, and other similar

measures.”

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For additional information, please see 34 C.F.R. § 106.30 and 34 C.F.R. § 106.44(a).

Question 34: Is a school still required to provide supportive measures during the COVID-19

pandemic?

Answer 34: Yes. COVID-19-related disruptions do not relieve a school of its obligation to

comply with Title IX. A school must continue to offer academic adjustments and supports to

complainants and respondents in Title IX sexual harassment complaints.

In light of the COVID-19 pandemic, “the facts and circumstances”

105

of a given situation may

require a school to provide remote counseling, or similar teletherapy option, as a supportive

measure to students who are unable to access on-campus counseling services. Similarly, in a

remote learning environment, supportive measures may include ensuring that parties to a

complaint do not share the same online classes.

For additional discussion of schools’ ongoing Title IX obligations during the COVID-19 pandemic,

please see OCR’s Questions and Answers on Civil Rights and School Reopening in the COVID-19

Environment.

Question 35: May a school remove a respondent from campus while a Title IX grievance

process is pending if the school determines that the respondent is a threat to

others?

Answer 35: Yes. The 2020 amendments specify that a school may remove a respondent from

its education program or activity on an emergency basis.

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The school must “undertake[] an

individualized safety and risk analysis, determine[] that an immediate threat to the physical

health or safety of any student or other individual arising from the allegations of sexual

harassment justifies removal, and provide[] the respondent with notice and an opportunity to

challenge the decision immediately following the removal.”

107

A school must also meet its

obligations to students under federal disability laws.

108

A school may also place non-student employee respondents on administrative leave while a Title

IX grievance process is pending.

109

Again, the school must comply with federal disability laws, as

applicable.

110

For additional information, please see 34 C.F.R. §§ 106.44(c)-(d).

X. Presumption of No Responsibility

Question 36: The 2020 amendments require schools to presume that the respondent is not

responsible for the alleged misconduct. Does this mean the school also must

assume the complainant is lying or that the alleged harassment did not occur?

Answer 36: No. A school should never assume a complainant of sexual harassment is lying or

that the alleged harassment did not occur.

The 2020 amendments require a school to include in its Title IX grievance process “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.”

111

However, the preamble

explains that “[t]he presumption does not imply that the alleged harassment did not occur,” or

that the respondent is truthful or a complainant is untruthful.

112

Instead, the preamble says that

the presumption is designed to ensure that investigators and decision-makers serve impartially

and do not prejudge that the respondent is responsible for the alleged harassment.

113

Schools

that have relied on this presumption to decline services to a complainant or to make assumptions

about a complainant’s credibility have done so in error.

For examples of language related to this issue, please see Q&A Appendix Section XI.

XI. Time Frames

Question 37: What is the appropriate length of time for a school’s investigation into a

complaint of sexual harassment?

Answer 37: The 2020 amendments require that a school’s grievance process for formal

complaints of sexual harassment include reasonably prompt time frames for concluding the

process, including filing and resolving appeals and for any informal resolution processes the

school offers.

114

The preamble states that because the 2020 amendments specify that “the time

frames designated by the [school] must account for conclusion of the entire grievance process,

including appeals and any informal resolution process,” no part of the process “is subject to an

open-ended time frame.”

115

The preamble also explains that “the reasonableness of the time frame is evaluated in the context

of the [school’s] operation of an education program or activity.”

116

Additionally, the preamble

says that “the conclusion of the grievance process must be reasonably prompt, because students

(or employees) should not have to wait longer than necessary to know the resolution of a formal

complaint of sexual harassment; any grievance process is difficult for both parties, and

participating in such a process likely detracts from students’ ability to focus on participating in

the [school’s] education program or activity.”

117

The preamble adds that because “victims of

sexual harassment are entitled to remedies to restore or preserve equal access to education, . . .

prompt resolution of a formal complaint of sexual harassment is necessary to further Title IX’s

nondiscrimination mandate.”

118

The preamble explains that each school “is in the best position to balance promptness with

fairness and accuracy based on [its] own unique attributes and [its] experience with its own

student disciplinary proceedings,” and thus, each school has discretion to determine its own

reasonably prompt time frames.

119

A school must resolve each formal complaint of sexual

harassment according to the time frames the school has committed to in its grievance process.

120

The Department had previously identified, but not required, a 60-day time frame, prior to appeal,

for resolving sexual harassment complaints. Although that guidance is no longer in place, nothing

in the 2020 amendments prohibits a school from adopting the 60-day time frame.

121

The 2020 amendments permit a temporary delay of the grievance process or the limited

extension of time frames, with good cause.

122

The 2020 amendments provide illustrations of

good cause, including 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.

123

For additional information, please see 34 C.F.R. § 106.45(b)(1)(v).

XII. Live Hearings and Cross-Examination

Please note: As a result of a federal district court order issued on July 28, 2021,

the part of the

2020 amendments that states: “If a party or witness does not submit to cross-examination at

the live hearing, the decision-maker(s) must not rely on any statement of that party or witness

in reaching a determination regarding responsibility,” 34 C.F.R. § 106.45(b)(6)(i), has been set

aside. In light of the district court’s decision, Q&As 51-54 (as well as the reference to Question

51 in Answer 42) are no longer applicable. OCR has added Questions A through D to this

section to provide additional clarification regarding the court’s decision.

Question 38: Are all schools required to hold live hearings as part of their Title IX grievance

processes?

Answer 38: Postsecondary schools must have a live hearing under the 2020 amendments.

124

A live hearing may occur virtually “with technology enabling the decision-maker[] and parties to

simultaneously see and hear the party or the witness answering questions.”

125

Elementary and

secondary schools are not required to have a live hearing.

126

For additional information, please see 34 C.F.R. § 106.45(b)(6).

Question 39: What is cross-examination?

Answer 39: At a live hearing, “each party’s advisor [must be permitted to] to ask the other

party and any witnesses all relevant questions and follow-up questions, including those

challenging credibility.”

127

The 2020 amendments refer to this process of questioning as cross-

examination.

The 2020 amendments explain that a party may not conduct cross-examination, but instead the

party’s advisor must ask the questions on their behalf.

128

The amendments also require a

Victim Rights Law Center et al. v. Cardona, No. 1:20-cv-11104, 2021 WL 3185743 (D. Mass. July 28, 2021), appeals

pending (1st Cir.).

postsecondary school to provide an advisor to conduct cross-examination for any party who does

not have their own advisor.

129

For additional information, please see 34 C.F.R. § 106.45(b)(6).

Question 40: Since elementary and secondary schools are not required to provide a live

hearing, what kind of process are they required to provide?

Answer 40: The 2020 amendments state that elementary and secondary schools “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.”

130

In addition, the decision-maker “must explain to the party

proposing the questions any decision to exclude a question as not relevant.”

131

The preamble also explains that a school may exclude as not relevant questions that are

duplicative or repetitive.

132

The 2020 amendments permit a parent or legally authorized guardian to act on behalf of the

complainant or respondent.

133

Whether a parent or guardian has the legal right to act on behalf

of a complainant or respondent “would be determined by State law, court orders, child custody

arrangements, or other sources granting legal rights to parents or guardians.”

134

If a parent or

guardian has a legal right to act on a complainant or respondent’s behalf, this authority applies

throughout all aspects of the Title IX matter, including throughout the grievance process.

135

For additional information, please see 34 C.F.R. § 106.45(b)(6)(ii) and 34 C.F.R. § 106.30.

Question 41: Is a postsecondary school required to provide complainants and respondents

with an advisor for a live hearing?

Answer 41: Yes. The 2020 amendments require a postsecondary school to provide an advisor

to conduct cross-examination for any party who does not have their own advisor.

136

The

amendments also require all schools to provide the parties with the same opportunities to be

accompanied by an advisor of their choice in other parts of the grievance process, but do not

require a school to provide an advisor for any part of the process other than the requirement

that a postsecondary school provide one for cross-examination.

137

The preamble explains that the parties are in the best position to decide which individuals should

serve as their advisors and notes that advisors may be friends, family members, an attorney, or

other individuals chosen by the party or provided by the school if the party does not choose

one.

138

For additional information, please see 34 C.F.R. § 106.45(b)(5)(iv) and 34 C.F.R. § 106.45(b)(6)(i).

Question 42: Are parties and witnesses required to participate in the Title IX grievance

process, including submitting to cross-examination during a live hearing at the

postsecondary school level?

Answer 42: No. Parties and witnesses are not required to submit to cross-examination or

otherwise participate in the Title IX grievance process.

139

[The strike-through below indicates

Q&As that are no longer applicable in light of Victim Rights Law Center et al. v. Cardona, No.

1:20-cv-11104, 2021 WL 3185743 (D. Mass. July 28, 2021), appeals pending (1st Cir.)] For

information on the consequences of not submitting to cross-examination, see Question 51.

The 2020 amendments do require schools to offer complainants supportive measures regardless

of whether they participate in a grievance process and to prohibit retaliation against individuals

based on their decision to participate, or not participate, in a grievance process.

140

Question 43: May a school create its own rules for conducting a live hearing?

Answer 43: Yes. The preamble states that a school may implement rules regarding how the

live hearing is conducted as long as those rules are applied equally to both parties.

141

For

example, a school “may decide whether or how to place limits on evidence introduced at a

hearing that was not gathered and presented prior to the hearing.”

142

The preamble also explains that a school may adopt rules on “whether the parties may offer

opening or closing statements, specify a process for making objections to the relevance of

questions and evidence, [and] place reasonable time limitations on a hearing.”

143

The preamble

adds that a school may adopt a rule stating that duplicative questions are irrelevant.

144

In addition, the preamble says that an advisor’s cross-examination role “is satisfied where the

advisor poses questions on a party’s behalf, which means that an assigned advisor could relay a

party’s own questions to the other party or witness.”

145

Thus, for example, a postsecondary

school could limit the role of advisors to relaying questions drafted by their party.

For examples of language related to this issue, please see Q&A Appendix Sections V-VII.

Question 44: May a school put in place rules of decorum or other rules for advisors, parties,

and witnesses to follow during a live hearing?

Answer 44: Yes. The preamble says that a school may “adopt rules of decorum” and notes that

a school is “in a better position than the Department to craft rules of decorum best suited to [its]

educational environment.”

146

For example, a school may prohibit advisors from questioning parties or witnesses in an abusive,

intimidating, or disrespectful manner.

147

A school also may require a party to use a different advisor if the party’s advisor refuses to comply

with the school’s rules of decorum. For example, the preamble explains 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.

148

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 comes too

close to a witness), the preamble explains that a school may enforce a rule requiring that relevant

questions must be asked in a respectful, non-abusive manner.

149

For examples of language related to this issue, please see Q&A Appendix Section VI.

Question 45: Are all parties required to be physically present in the same location during the

live hearing?

Answer 45: No. The 2020 amendments state that, “at the [school’s] discretion, any or all

parties, witnesses, and other participants may appear at the live hearing virtually, with

technology enabling participants simultaneously to see and hear each other.”

150

Additionally, the

preamble states that even if a school does not regularly hold virtual hearings, any party may

request that the entire hearing, including cross-examination, be held virtually, and the school

must grant that request.

151

The party does not need to provide a reason for making this

request.

152

In addition, nothing in the 2020 amendments prohibits schools from holding virtual hearings or

from having the parties participate in separate locations even if no party makes such a request,

particularly in light of the operational challenges posed by the COVID-19 pandemic.

153

For additional information, please see 34 C.F.R. § 106.45(b)(6)(i).

For examples of language related to this issue, please see Q&A Appendix Section V.

Question 46: Is a school permitted to limit the questions that may be asked by each party of

the other party or witnesses?

Answer 46: Yes, and in fact the 2020 amendments require certain limitations, whether in a

hearing or as part of an exchange of written questions at the elementary and secondary school

level. Note that the 2020 amendments do not require a hearing at the elementary and secondary

school level.

154

Questions must be relevant. More specifically, the 2020 amendments state that questions about

the complainant’s prior sexual behavior are not relevant, subject to certain limitations.

155

The

preamble states that any school may exclude as not relevant questions that are duplicative or

repetitive.

156

For more information regarding other limitations on questioning, see Question 48.

Further, the 2020 amendments state that during cross-examination at the postsecondary school

level, “only relevant cross-examination questions and other questions may be asked of a party or

witness” and the decision-maker must determine the relevance of a question before a party or a

witness answers.

157

For additional information, please see 34 C.F.R. § 106.45(b)(6).

For examples of language related to this issue, please see Q&A Appendix Sections VIII and IX.

Question 47: Are questions and evidence about the complainant’s sexual history relevant?

Answer 47: The 2020 amendments 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” or 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.”

158

The preamble explains that the term “prior sexual behavior” refers to “sexual behavior that is

unrelated” to the alleged conduct.

159

The preamble also addresses questions and evidence about

sexual behavior after an alleged incident, saying that the regulations do not imply that these

kinds of questions are relevant.

160

Whether sexual behavior between the complainant and

respondent might be relevant to prove consent regarding the particular allegations at issue

“depends in part on a [school’s] definition of consent.”

161

Some schools’ definitions of consent

“require a verbal expression of consent,” and other schools’ definitions of consent “inquire

whether based on circumstances the respondent reasonably understood that consent was

present (or absent).”

162

For additional information, please see 34 C.F.R. § 106.45(b)(6).

For examples of language related to this issue, please see Q&A Appendix Section IX.

Question 48: Can cross-examination include questions about an individual’s medical or

mental-health records?

Answer 48: Questions that seek information about any party’s medical, psychological, and

similar records are not permitted unless the party has given written consent.

163

Questions about

other records protected by a legally recognized privilege are also not permitted unless waived by

the party.

164

The preamble also explains that “[schools] (and, as applicable, parties) must follow

relevant State and Federal health care privacy laws throughout the grievance process.”

165

These protections apply throughout the investigation as well as the hearing.

Question 49: May a school put measures in place to protect the well-being of the parties

during the cross-examination?

Answer 49: Yes. For example, the preamble notes that a school is permitted to grant breaks

to the parties during a live hearing.

166

Also, as discussed in Question 46, the 2020 amendments

require a pause in the cross-examination process each time before a party or witness answers a

cross-examination question in order for the decision-maker to determine if the question is

relevant.

167

The preamble explains that this is to help ensure that the cross-examination includes

only relevant questions and that the pace of the cross-examination does not place undue

pressure on a party or a witness to answer immediately.

168

Question 50: How do the 2020 amendments address the manner in which a decision-maker

should evaluate answers to cross-examination questions?

Answer 50: The 2020 amendments do not require that answers to cross-examination

questions “be in linear or sequential formats” or that any party “must recall details with certain

levels of specificity.”

169

The preamble adds that the 2020 amendments “protect against a party

being unfairly judged due to inability to recount each specific detail of an incident in sequence”

because “decision-makers must be trained to serve impartially without prejudging the facts.”

170

For examples of language related to this issue, please see Q&A Appendix Section VIII.

[The strike-through below indicates that Q&As 51-54 are no longer applicable in light of Victim

Rights Law Center et al. v. Cardona, No. 1:20-cv-11104, 2021 WL 3185743 (D. Mass. July 28,

2021), appeals pending (1st Cir.)] OCR has added Q&As A-D below to provide postsecondary

schools with additional updated information in light of the court's decision.

Question 51: What are the consequences if a party or witness does not participate in a live

hearing or submit to cross-examination?

Answer 51: Postsecondary schools, which are required to provide for cross-examination at a

live hearing, should keep in mind that, under the 2020 amendments, if a party or a witness does

not submit to cross-examination, that individual’s statements cannot be relied on by the

decision-maker in determining whether the respondent engaged in the alleged sexual

harassment.

171

The preamble explains that even if a party is unable to participate at a hearing “due to death or

post-investigation disability,” the school’s decision-makers may not rely on any statements from

that individual in their decision-making about whether the respondent has committed sexual

harassment in violation of school policy.

172

As discussed in Question 37, a school has “discretion

to apply limited extensions of time frames during the grievance process for good cause, which

may include, for example, a temporary postponement of a hearing to accommodate a

disability.”

173

The decision-maker also may not draw any inference solely from a decision of a party or witness

not to participate at the hearing, including not to submit to cross-examination.

174

This means, for

example, that the decision-maker may not make any decisions about a party’s credibility based

solely on their decision not to participate in a hearing or submit to cross-examination.

Note that “police reports, medical reports and other documents and records may not be relied

on to the extent they contain the statements of a party or witness who has not submitted to

cross-examination.”

175

For examples of language related to this issue, please see Q&A Appendix Section X.

For additional information, please see 34 C.F.R. § 106.45(b)(6)(i).

Question 52: May a decision-maker at a postsecondary school rely on non-statement

evidence, such as photographs or video images, if a party or witness does not

submit to cross-examination?

Answer 52: Yes. Although a decision-maker may not rely on any statement of a party or

witness who does not submit to cross-examination, other relevant evidence can still be

considered to determine whether the respondent is responsible for the alleged sexual

harassment.

176

The preamble explains that the term “statements” should be interpreted using

its ordinary meaning, but does not include evidence, such as a videos of the incident itself, where

the party or witness has no intent to make an assertion regarding whether or not the alleged

harassment occurred or discuss factual details related to the alleged harassment, or where the

evidence does not contain such factual assertions by the party or witness.

177

Thus, the decision-

maker may rely on non-statement evidence related to the alleged prohibited conduct that is in

the record, such as photographs or video images showing the underlying incident.

178

For examples of language related to this issue, please see Q&A Appendix Section X.

Question 53: May a decision-maker at a postsecondary school rely on statements of a party,

such as texts or emails, even if the party does not submit to cross-examination?

Answer 53: It depends. The decision-maker may consider certain types of statements by a

party where the statement itself is the alleged harassment, even if the party does not submit to

cross-examination. For example, the decision-maker may consider a text message, email, or

audio or video recording created and sent by a respondent as a form of alleged sexual harassment

even if the respondent does not submit to cross-examination.

179

Similarly, if a complainant

alleges that the respondent said, “I’ll give you a higher grade in my class if you go on a date with

me,” the decision-maker may rely on the complainant’s testimony that the respondent said those

words even if the respondent does not submit to cross-examination.

180

In these types of situations, the decision-maker is evaluating whether the statement was made

or sent. In second example above, the complainant’s testimony was about the fact that the

respondent made the offer, and not about what the respondent intended or whether the

respondent took an additional action based on the statement, such as changing the student’s

grade after a date.

181

In contrast, evidence in which a party or witness comments on the interaction between the

parties without engaging in harassment (e.g., email or text exchanges leading up to the alleged

harassment or an admission, an apology, or other comment about the alleged harassment),

would be considered statements that could not be considered unless the party or witness is cross-

examined.

182

For examples of language related to this issue, please see Q&A Appendix Section X.

Question 54: May a decision-maker rely on a video, text message, or other piece of evidence

that includes statements by multiple parties or witnesses if some of them do not

submit to cross-examination?

Answer 54: Yes. The preamble explains that in such cases, even if a party or witness in a text

message, email, or video does not submit to cross-examination, the decision-maker may still rely

on the statements by other people in that text message, email, or video who do submit to cross-

examination.

183

OCR provides the following questions and answers about the effect Victim Rights Law

Center et al. v. Cardona, No. 1:20-cv-11104, 2021 WL 3185743 (D. Mass. July 28, 2021),

appeals pending (1st Cir.), which struck down a part of the 2020 amendments:

Question A: May a decision-maker at a postsecondary school consider statements made by

a party or witness who does not submit to cross-examination at a live hearing?

Answer A: Yes. A federal court vacated regulatory language in the 2020 amendments that

prohibited decision-makers in postsecondary schools from relying on statements by individuals

who did not submit to cross-examination during a live hearing. As a result, postsecondary schools

are no longer subject to this language. The Department will continue to enforce all other parts of

the regulation, including other requirements in the same section of the regulation (34 C.F.R.

§ 106.45(b)(6)(i)) that were not vacated, including the regulatory language in 34 § 106.45(b)(6)(i)

stating that the decision-maker may not draw any inference solely from a decision of a party or

witness not to participate at the hearing, including not to submit to cross-examination. This

means, for example, that the decision-maker may not make any decisions about a party’s

credibility based solely on their decision not to participate in a hearing or submit to cross-

examination.

For additional information, please see OCR’s August 24, 2021, letter to students, educators, and

other stakeholders regarding the court’s decision in VRLC v. Cardona.

Question B: When did this court-ordered change in the regulation take effect?

Answer B: The court’s decision was issued July 28, 2021, and took effect immediately. This

means that it applies to Title IX grievance processes initiated by postsecondary schools after July

28, 2021, regardless of when the alleged sexual harassment occurred. It also means that OCR will

not enforce this restriction as to any Title IX grievance processes initiated by postsecondary

schools after July 28, 2021.

Question C: What types of statements made by a party or witness who does not submit to

cross-examination at a live hearing may a decision-maker at a postsecondary

school consider?

Answer C: In reaching a determination regarding responsibility in a Title IX grievance process,

a decision-maker at a postsecondary school may consider statements made by parties or

witnesses that are otherwise permitted under the regulations, even if those parties or witnesses

do not submit to cross-examination at the live hearing.

For example, a decision-maker at a postsecondary school may consider statements made by the

parties and witnesses during the investigation. A decision-maker at a postsecondary school may

also consider emails or text exchanges between the parties leading up to the alleged sexual

harassment and statements about the alleged sexual harassment that satisfy the regulation’s

relevance rules, regardless of whether the parties or witnesses submit to cross-examination at

the live hearing. Additionally, a decision-maker at a postsecondary school may consider police

reports, Sexual Assault Nurse Examiner documents, medical reports, and other documents that

satisfy the regulation’s relevance rules even if those documents contain statements of a party

or witness who is not cross-examined at the live hearing.

Question D: Despite the court’s decision, may a postsecondary school choose to maintain the

prohibition on considering statements made by a party or witness who does not

submit to cross-examination at a live hearing as part of its Title IX grievance

process?

Answer D: No. The 2020 amendments at 34 C.F.R. § 106.45(b)(1)(ii) require “an objective

evaluation of all relevant evidence.” To the extent that statements made by a party or witness

who does not submit to cross-examination at a live hearing satisfy the regulation’s relevance

rules, they must be considered in any postsecondary school’s Title IX grievance process that is

initiated after July 28, 2021.

Question 55: May a decision-maker rely on the statements of a party or witness who submits

to cross-examination, but does not answer questions posed by the decision-

maker?

Answer 55: Yes. The preamble explains that cross-examination differs from questions posed

by a neutral fact-finder and that if a party or witness submits to cross-examination by a party’s

advisor, but does not answer a question posed by the decision-maker, the decision-maker may

still rely on all of that person’s statements.

184

The preamble also explains that “the decision-

maker still may not draw any inference about the party’s credibility in making the responsibility

determination based solely on a party’s refusal to answer questions posted by the decision-

maker” because 34 C.F.R. § 106.45(b)(6)(i) states that no inference may be drawn based on the

refusal to answer cross-examination or other questions.

185

XIII. Standard of Proof

Question 56: What standard of proof must a school use when deciding whether a respondent

is responsible for committing sexual harassment?

Answer 56: Under the 2020 amendments, a school’s grievance process must state whether

the standard of evidence or proof to be used to determine responsibility is the preponderance-

of-the-evidence standard or the clear-and-convincing-evidence standard.

186

The preamble

explains that the preponderance-of-the-evidence standard means the decision-maker must

determine whether alleged facts are more likely than not to be true.

187

It also explains that the

clear-and-convincing-evidence standard means the decision-maker must determine whether it is

“highly probable” that the alleged facts are true.

188

For additional information, please see 34 C.F.R. § 106.45(b)(1)(vii).

Question 57: May a school use a different standard of proof for formal complaints of sexual

harassment involving students and employees?

Answer 57: No. Regardless of which standard of proof is used, a school must apply the same

standard of proof to all formal complaints of sexual harassment made by a student, employee,

or faculty member.

189

The preamble explains that if a school has a collective bargaining

agreement in place that requires the school to use the clear-and-convincing standard for sexual

harassment investigations involving employees, it is required under the 2020 amendments to use

only the clear-and-convincing standard for sexual harassment investigations involving students

as well.

190

In those cases, the preamble indicates that the school may work cooperatively with its

employee unions to renegotiate the standard of proof used in employee sexual harassment

investigations.

191

For additional information, please see 34 C.F.R. § 106.45(b)(1)(vii).

XIV. Informal Resolution

Question 58: May a school offer an informal resolution process, including restorative justice

or mediation, as a way to resolve a sexual harassment complaint?

Answer 58: Yes. The 2020 amendments state that a school is not required to offer an informal

resolution process but may facilitate an informal resolution process at any time prior to reaching

a determination regarding responsibility, subject to certain conditions.

192

A school is not

permitted to offer or facilitate an informal resolution process to resolve allegations that an

employee sexually harassed a student.

193

The 2020 amendments explain that they leave the term “informal process” undefined to allow a

school the discretion to adopt whatever process best serves the needs of its community.

194

The

amendments do not require that the parties interact directly with each other as part of an

informal resolution process; mediations are often conducted with the parties in separate rooms

and the mediator conversing with each party separately.

195

The parties’ participation in

mediation or restorative justice, if offered, should remain a decision for each individual party to

make in a particular case, and neither party should be pressured to participate in the process.

Schools may exercise discretion to make fact-specific determinations about whether to offer

informal resolution in response to a complaint. The Department will not require the parties to

attempt mediation in its enforcement of Title IX.

196

For additional information, please see 34 C.F.R. § 106.45(b)(9).

For examples of language related to this issue, please see Q&A Appendix Section XV.

Question 59: If a school chooses to offer an informal resolution process, are there any

requirements under Title IX?

Answer 59: Yes. If a school chooses to offer an informal process, the 2020 amendments

require that the school obtains the complainant’s and the respondent’s voluntary, written

consent before using any kind of “informal resolution” process, such as mediation or restorative

justice.

197

With the parties’ consent, schools have the freedom to allow the parties to choose an

informal resolution mechanism that best suits their needs.

198

If those needs change, however,

the 2020 amendments also make clear that either party may withdraw from the informal

resolution process and resume the formal grievance process at any time prior to agreeing to a

resolution.

199

A school’s discretion to offer an informal resolution process is also limited by the school’s

obligation to ensure that all persons who facilitate informal resolutions are free from conflicts of

interest and bias, and are trained to serve impartially without prejudging the facts at issue.

200

For

example, schools that choose to offer restorative justice as a means of an informal resolution

should ensure that the restorative justice facilitators are well-trained in effective processes.

201

school may use trauma-informed techniques during the informal resolution process.

For additional information, please see 34 C.F.R. § 106.45(b)(9).

XV. Retaliation and Amnesty

Question 60: What is retaliation, and is it prohibited under the 2020 amendments?

Answer 60: The 2020 amendments prohibit retaliation.

202

Retaliation is defined as

“[i]ntimidation, threats, coercion, or discrimination, including charges against an individual for

code of conduct violations that do not involve sex discrimination or sexual harassment, but arise

out of the same facts or circumstances as a report or complaint of sex discrimination, or a report

or formal complaint of sexual harassment, for the purposes of interfering with any right or

privilege secured by [the] Title IX [statute or regulations].”

203

For additional information, please see 34 C.F.R. § 106.71.

Question 61: May a school discipline a complainant, respondent, or witness for violating the

school’s COVID-19 or other policy during a reported incident of sexual

harassment?

Answer 61: No, unless the school has a policy that always imposes the same punishment for

violating the COVID-19 or other policy regardless of the circumstances. The 2020 amendments

prohibit “charges against an individual for code of conduct violations that do not involve sex

discrimination or sexual harassment, but arise out of the same facts or circumstances as a report

or formal complaint of sexual harassment [i.e., collateral conduct], for the purpose of interfering

with any right or privilege secured by Title IX or [its implementing regulations].”

204

The preamble explains that if a school punishes an individual for violations of other school

policies, it will be considered retaliation if the punishment is for the purpose of interfering with

any right or privilege secured by Title IX.

205

The preamble adds that if a school has a zero-

tolerance policy that always imposes the same punishment for such conduct regardless of the

circumstances, imposing that punishment would not be for the purpose of interfering with any

right or privilege secured by Title IX and thus, would not be considered retaliation.

206

For additional information, please see 34 C.F.R. § 106.71.

Question 62: Is a school permitted to have an amnesty policy as a way to encourage reporting

of sexual harassment?

Answer 62: Yes. The preamble notes that “[t]he Department is aware that some schools have

adopted ‘amnesty’ policies designed to encourage students to report sexual harassment.”

207

Under these policies, “students who report sexual misconduct (whether as a victim or witness)

will not face charges for school code of conduct violations relating to the sexual misconduct

incident (e.g., underage drinking at the party where the sexual harassment occurred).”

208

“Nothing in the [2020 amendments] precludes a [school] from adopting such amnesty policies,”

and schools retain broad discretion to adopt such amnesty policies or to otherwise define

retaliation more broadly than in the regulations.

209

More generally, schools should keep in mind that the 2020 amendments require that a school’s

Title IX grievance process treat complainants and respondents equitably.

210

Question 63: May a school punish a complainant for filing a complaint if the decision-maker

finds that the respondent did not engage in the alleged sexual harassment?

Answer 63: Not without a finding of bad faith. The 2020 amendments state that “a

determination regarding responsibility, alone, is not sufficient to conclude that any party made

a materially false statement in bad faith.”

211

To the contrary, it might be considered retaliation

for a school to penalize a student for bringing a complaint, depending on the circumstances.

212

However, if a school believes a student made a materially false statement in bad faith in the

course of a Title IX grievance proceeding, it would not constitute retaliation for a school to charge

that individual with a code-of-conduct violation.

213

For additional information, please see 34 C.F.R. § 106.71.

XVI. Forms of Sex Discrimination Other Than Sexual Harassment as Defined by the 2020

Amendments

Question 64: How should a school respond to complaints alleging sex discrimination that do

not include sexual harassment allegations?

Answer 64: The 2020 amendments explain that the grievance process required for formal

sexual harassment complaints does not apply to complaints alleging discrimination based on

pregnancy, different treatment based on sex, or other forms of sex discrimination.

214

Instead, the 2020 amendments state that schools must respond to these complaints using the

“prompt and equitable” grievance procedures that schools have been required to adopt and

publish since 1975, when the original Title IX regulations were issued.

215

The 1975 regulations,

which are still in place today, require schools to have a Title IX Coordinator to receive complaints

of sex discrimination and require schools to respond promptly and equitably to such

complaints.

216

For additional information, please see 34 C.F.R. § 106.8(c).

Question 65: What constitutes a prompt and equitable grievance procedure under Title IX for

responding to complaints of sex discrimination that do not include sexual-

harassment allegations?

Answer 65: OCR has historically looked to whether and how schools have communicated

information about their procedures, including where to file complaints, to students,

parents/caregivers (for elementary and secondary school students), and employees. In addition,

OCR has considered whether the procedures have provided for adequate, reliable, and impartial

investigation of complaints; designated and reasonably prompt time frames for the complaint

and resolution process; and notice to the parties of the outcome of a complaint.

217

OCR also has historically explained that a grievance procedure cannot be prompt or equitable

unless students know it exists, how it works, and how to file a complaint. Thus, the procedures

should be written in language appropriate to the age of the school’s students, easily understood,

and widely disseminated.

218

XVII. Religious Exemptions

Question 66: Are all schools that receive federal financial assistance required to comply with

Title IX?

Answer 66: Title IX does not apply to an educational institution that is controlled by a religious

organization to the extent that application of Title IX would be inconsistent with the religious

tenets of the organization.

219

This religious exemption was in the text of Title IX when it was

enacted in 1972. The religious exemption does not apply to public schools or to colleges or

universities run by state or local governments.

A school may, at its discretion, seek an assurance of a Title IX religious exemption at any time by

submitting a letter from the highest ranking official of the institution to the Assistant Secretary

for Civil Rights in the Department of Education.

220

The letter must identify the provisions of the

Title IX regulations that conflict with specific tenets of the religious organization.

221

A religious

exemption is not a blanket exemption from Title IX, and a school’s religious exemption extends

only as far as the conflict between the Title IX regulations and the religious tenets of the

controlling religious organization.

222

A school must comply with the Title IX regulations to the

extent that compliance would not conflict with the tenets of the controlling religious

organization.

223

The 2020 amendments state that a school is not required to seek a written assurance of its

religious exemption under Title IX before claiming the exemption, and the regulations state that

a school can invoke a religious exemption after OCR has received a complaint regarding the

school.

224

This is consistent with OCR’s handling of religious exemption requests dating back

more than two decades.

For additional information, please see 34 C.F.R. § 106.12.

Please visit OCR’s website for additional information about religious exemptions.

Question 67: May a student file a complaint with OCR against a school that has obtained an

assurance of a religious exemption from OCR?

Answer 67: Yes. Students may always file a complaint with OCR if they believe their school has

violated their rights under Title IX, even if OCR has previously provided assurance to the school

of a religious exemption under Title IX. After receiving the complaint, OCR would first evaluate

whether the allegation is appropriate for investigation. If yes, and if the school has previously

asserted a religious exemption, then OCR would determine whether the exemption applies to

the alleged discrimination. If the exemption applies, OCR would dismiss the complaint. If the

alleged discrimination does not fall within the school’s religious exemption from Title IX, then

OCR would proceed with the investigation, following OCR’s Case Processing Manual.

225

You can read the 2020 amendments, entitled “Nondiscrimination on the Basis of Sex in Education Programs or

Activities Receiving Federal Financial Assistance,” at 85 Fed. Reg. 30,026 (May 19, 2020),

https://www.govinfo.gov/content/pkg/FR-2020-05-19/pdf/2020-10512.pdf. The amendments begin on page

30,572. The Federal Register notice also includes a preamble, at pages 30,026-30,570, that clarifies OCR’s

interpretation of Title IX and the Title IX regulations. As discussed above, please note that the preamble itself does

not have the force and effect of law.

85 Fed. Reg. at 30,063.

Id.

20 U.S.C. § 1092(f)(6)(A)(v).

NIBRS User Manual at 40 (April 15, 2021), https://www.fbi.gov/file-repository/ucr/ucr-2019-1-nibrs-user-manua-

093020.pdf/view.

34 U.S.C. § 12291(a)(10).

Id. § 12291(a)(8).

Id. § 12291(a)(30).

34 C.F.R. § 106.30 (definition of sexual harassment). See also 85 Fed. Reg. at 30,202.

85 Fed. Reg. at 30,174.

Id.

Id. at 30,199.

Id.

34 C.F.R. § 106.31.

85 Fed. Reg. at 30,170. See also 34 C.F.R. § 106.30(a) (definition of sexual harassment).

85 Fed. Reg. at 30,170.

Id.

Id. at 30,169.

Id.

Id. at 30,170.

Id.

34 C.F.R. § 106.44(a). See also 85 Fed. Reg. at 30,196-98.

85 Fed. Reg. at 30,093. See also 34 C.F.R. § 106.45(b)(1)(iii).

34 C.F.R. § 106.8(d).

85 Fed. Reg. at 30,201.

Id. at 30,197.

Id. at 30,199 n.875.

Id. at 30,200 n.877.

Id. at 30,200.

Id. at 30,202.

Id.

Id. at 30,203.

Id. at 30,202.

Id.

U.S. Department of Education, Office for Civil Rights, Letter from Acting Assistant Secretary for Civil Rights,

Kimberly M. Richey, Withdrawing Certain OCR Documents (Aug. 26, 2020),

https://www2.ed.gov/policy/gen/guid/fr-200826-letter.pdf

. Guidance documents previously issued by the

Department that have since been withdrawn are available at

https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/rr/policyguidance/respolicy.html. Note that these

guidance documents, even prior to their withdrawal, do not have the force and effect of law, and are not meant to

bind the public or regulated entities in any way.

34 C.F.R. §§ 106.30(a) (definition of actual knowledge), 106.44(a).

85 Fed. Reg. at 30,109, 30,115.

34 C.F.R. § 106.30(a) (definition of actual knowledge).

85 Fed. Reg. at 30,115-16, 30,120.

Id. at 30,115.

34 C.F.R. § 106.30(a) (definition of actual knowledge); 85 Fed. Reg. at 30,043.

85 Fed. Reg. at 30,043.

Id.

34 C.F.R. §§ 106.8(a), 106.30(a) (definition of actual knowledge).

85 Fed. Reg. at 30,093.

34 C.F.R. § 106.30(a)

85 Fed. Reg. at 30,116.

Id. at 30,192.

Id. See also 34 C.F.R. § 106.30(a) (definition of complainant).

85 Fed. Reg. at 30,192.

Id. at 30,107, 30,115, 30,523.

Id. at 30,107.

Id. at 30,523.

Id. at 30,107.

Id. at 30,115, 30,523.

Id. at 30,107.

Id.

34 C.F.R. § 106.44(a).

Id.

34 C.F.R. § 106.45(b)(1)(i), (b)(7)(ii)(E); 85 Fed. Reg. at 30,274.

85 Fed. Reg. at 30,274.

34 C.F.R. § 106.45(b)(1)(i).

Id.

Id. § 106.45(b)(1)(vi).

85 Fed. Reg. at 30,275.

34 C.F.R. § 106.30(a) (definition of formal complaint).

Id.

Id. § 106.6(g); 85 Fed. Reg. at 30,453.

Id. § 106.30(a) (definition of formal complaint).

Id.

85 Fed. Reg. at 30,138, 30,198 n.869, 30,219.

34 C.F.R. § 106.30(a) (definition of formal complaint).

Id.

34 C.F.R. §§ 106.30(a) (definition of formal complaint), 106.44(a).

85 Fed. Reg. at 30,089.

34 C.F.R. § 106.45(b)(3)(i). See also 85 Fed. Reg. at 30,199.

34 C.F.R. § 106.44(a).

Id.

Id. § 106.45(b)(3)(ii). See also 85 Fed. Reg. at 30,290.

85 Fed. Reg. at 30,290.

Id.

Id. at 30,187.

See 34 C.F.R. § 106.45(b)(1)(v).

85 Fed. Reg. at 30,348. See also 34 C.F.R. § 106.45(b)(1)(v).

34 C.F.R. § 106.45(b)(1)(v).

34 C.F.R. § 106.45(b)(6)(i). See also 85 Fed. Reg. at 30,348.

34 C.F.R. § 106.44(a).

Id.

100

Id. § 106.30(a) (definition of supportive measures). See also 34 C.F.R. § 106.44(a).

101

34 C.F.R. § 106.30(a) (definition of supportive measures).

102

Id.

103

85 Fed. Reg. at 30,182.

104

Id. at 30,401.

105

Id. at 30,182.

106

34 C.F.R. § 106.44(c).

107

Id.

108

Id. (referencing the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, and

the Americans with Disabilities Act).

109

Id. § 106.44(d).

110

Id. (referencing Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act).

111

Id. § 106.45(b)(1)(iv).

112

85 Fed. Reg. at 30,259.

113

Id.

114

34 C.F.R. § 106.45(b)(1)(v).

115

85 Fed. Reg. at 30,269.

116

Id.

117

Id.

118

Id.

119

Id.

120

Id.

121

Id.

122

34 C.F.R. § 106.45(b)(1)(v).

123

Id.

124

Id. § 106.45(b)(6)(i).

125

Id.

126

Id. § 106.45(b)(6)(ii).

127

Id. § 106.45(b)(6)(i).

128

Id.

129

Id.

130

Id. § 106.45(b)(6)(ii).

131

Id.

132

85 Fed. Reg. at 30,361.

133

34 C.F.R. § 106.6(g).

134

85 Fed. Reg. at 30,453.

135

Id. at 30,122.

136

34 C.F.R. § 106.45(b)(6)(1).

137

Id. § 106.45(b)(5)(iv).

138

85 Fed. Reg. at 30,297.

139

34 C.F.R. § 106.45(b)(6)(i).

140

Id. §§ 106.44(a), 106.71. See also 85 Fed. Reg. at 30,324.

141

85 Fed. Reg. at 30,360. These rules would be in addition to any rules required under 34 C.F.R. § 106.45.

142

Id. at 30,360.

143

Id. at 30,361.

144

Id. at 30,331.

145

Id. at 30,340.

146

Id. at 30,319. See also 34 C.F.R. § 106.45(b)(5)(iv).

147

85 Fed. Reg. at 30,319, 30,324, 30,331, 30,361.

148

Id. at 30,320, 30,324, 30,342.

149

Id.

150

34 C.F.R. § 106.45(b)(6)(i).

151

Id. See also 85 Fed. Reg. at 30,324, 30,355-56.

152

34 C.F.R. § 106.45(b)(6)(i).

153

85 Fed. Reg. at 30,362.

154

34 C.F.R. § 106.45(b)(6)(ii).

155

Id.

156

85 Fed. Reg. at 30,361.

157

34 C.F.R. § 106.45(b)(6)(i).

158

Id.

159

85 Fed. Reg. at 30,354 n.1355.

160

Id.

161

Id. at 30,353.

162

Id.

163

34 C.F.R. § 106.45(b)(5)(i). See also 85 Fed. Reg. at 30,361, 30,294.

164

34 C.F.R. § 106.45(b)(1)(x).

165

85 Fed. Reg. at 30,286.

166

Id. at 30,323.

167

Id. at 30,323-24.

168

Id.

169

Id. at 30,323.

170

Id.

171

34 C.F.R. § 106.45(b)(6)(i).

172

85 Fed. Reg. at 30,348.

173

Id.

174

34 C.F.R. § 106.45(b)(6)(i).

175

85 Fed. Reg. at 30,349.

176

34 C.F.R. § 106.45(b)(6)(i). See also 85 Fed. Reg. at 30,328, 30,345, 30,349, 30,361.

177

85 Fed. Reg. at 30,328, 30,345, 30,349, 30,361.

178

Id. at 30,328, 30,345, 30,349, 30,361.

179

Id. at 30,349.

180

Id.

181

See, e.g., id. at 30,142 n.625 (acknowledging that speech, when not protected under the U.S. Constitution, may

constitute actionable harassment under 34 C.F.R. § 106.30 even when speech is part of the misconduct at issue).

See also id. at 30,349.

182

85 Fed. Reg. at 30,349.

183

Id.

184

Id.

185

34 C.F.R. § 106.45(b)(6)(i). See also 85 Fed. Reg. at 30,349 n.1341.

186

34 C.F.R. § 106.45(b)(1)(vii).

187

85 Fed. Reg. at 30,386 n.1472, 30,388 n.1480.

188

Id. at 30,386 n.1473.

189

34 C.F.R. § 106.45(b)(1)(vii). See also 85 Fed. Reg. at 30,378.

190

85 Fed. Reg. at 30,378.

191

Id.

192

34 C.F.R. § 106.45(b)(9).

193

Id. § 106.45(b)(9)(iii).

194

85 Fed. Reg. at 30,401.

195

Id. at 30,403.

196

Id. at 30,361.

197

34 C.F.R. § 106.45(b)(9).

198

85 Fed. Reg. at 30,406.

199

34 C.F.R. § 106.45(b)(9).

200

34 C.F.R. § 106.45(b)(1)(iii).

201

85 Fed. Reg. at 30,401, 30,403.

202

34 C.F.R. § 106.71(a).

203

Id.

204

Id.

205

85 Fed. Reg. at 30,536.

206

Id.

207

Id.

208

Id.

209

Id.

210

34 C.F.R. § 106.45(b)(1)(i).

211

Id. § 106.71(b)(2). See also 85 Fed. Reg. at 30,537.

212

34 C.F.R. § 106.71(b)(2).

213

Id.

214

Id. §§ 106.8(c), 106.45. See also 85 Fed. Reg. at 30,095, 30,129, 30,471, 30,473.

215

34 C.F.R. §§ 106.8(c), 106.45. See also 85 Fed. Reg. at 30,095, 30,129, 30,461, 30,473.

216

34 C.F.R. §§ 106.8(a)-(c).

217

U.S. Department of Education, Office for Civil Rights, Revised Sexual Harassment Guidance: Sexual Harassment

of Students by School Employees, Other Students, or Third Parties at 19-20 (Jan. 19, 2001),

https://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf

. This guidance was rescinded in 2020 but remains

accessible on the Department’s website for historical reference.

218

Id. at 20.

219

20 U.S.C. § 1681(a)(3); 34 C.F.R. § 106.12.

220

34 C.F.R. § 106.12(b).

221

Id.

222

Id. § 106.12(a).

223

Id.

224

Id. § 106.12(b).

225

U.S. Department of Education, Office for Civil Rights Case Processing Manual (Aug. 26, 2020),

https://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.pdf

Appendix to

Questions and Answers on the Title IX Regulations on Sexual Harassment (July 2021)

This Appendix accompanies Questions and Answers on the Title IX Regulations on Sexual

Harassment (July 2021) from the U.S. Department of Education’s Office for Civil Rights. This

Appendix responds to schools’ requests for examples of Title IX procedures that may be

adaptable to their own circumstances and helpful in implementing the 2020 amendments to

the Department’s Title IX regulations.

Schools that receive federal funds are obligated to

implement these regulations, with some limited exceptions described in the statute and

regulations.

The Appendix includes examples for elementary and secondary schools and postsecondary

schools. It is not comprehensive but addresses many areas in which questions arise.

Important notes:

- Schools may use the example policy language in this Appendix to guide the creation

of their own policies but are not required to do so. The Department does not

endorse these provisions in particular, nor does it prefer or support these examples

as compared with others that schools may use.

- Other than any statutory and regulatory requirements included below, the contents

of this Appendix do not have the force and effect of law and are not meant to bind

the public. This Appendix is intended only to provide clarity to the public regarding

how OCR interprets existing requirements under the law or agency policies.

- Adoption of one or more of the examples from this Appendix alone does not

demonstrate compliance with Title IX. If OCR investigates a discrimination

complaint, OCR will make a fact-specific determination regarding whether a school’s

Title IX policies and procedures, and their implementation, complies with the law.

- The example policy language does not address policies or procedures that may be

required to comply with Title VII of the Civil Rights Act of 1964, which prohibits sex

discrimination in employment. As the 2020 amendments state: “Nothing in [these

regulations] 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.” 34 C.F.R. § 106.6(f).

Please also note that this Appendix focuses on procedures for addressing reports and

complaints of sexual harassment, including sexual violence, because the regulations themselves

focus on procedures.

The Department issued the regulations to implement Title IX of the Education Amendments Act of 1972. The

Department’s current Title IX regulations are in 34 C.F.R. Part 106, which is available at

https://www.ecfr.gov/cgi-

bin/retrieveECFR?gp=&SID=f12a46d66326f0c23de5edac094d253d&mc=true&n=pt34.1.106&r=PART&ty=HTML.

The examples are excerpted from the policies at a variety of schools across the United States,

and OCR has edited them for readability and consistency.

***

Many of the sections below include multiple examples to illustrate choices that different schools

have made about communicating their procedures to students and their communities. The 2020

amendments do not necessarily require the approaches in the examples here and, again, the

Department does not endorse these provisions in particular, nor does it prefer or support these

examples as compared with others that schools may use.

The 2020 amendments impose some different requirements for elementary and secondary

schools, as compared to postsecondary schools. In light of this, we have noted where examples

track requirements for elementary and secondary schools, postsecondary schools, or both. For

more information on these differences, please see the Title IX Q&A.

I. Receiving and Responding to Reports of Sexual Harassment

Example Policies Used by Elementary and Secondary Schools and Postsecondary Schools

• Example Policy 1: When a complaint or report of sexual harassment is made under this

school’s policy, the Title IX Coordinator (or designee) will: (1) confidentially contact the

complainant to offer supportive measures, consider the complainant’s wishes with

respect to supportive measures, and inform them of the availability of supportive

measures with or without filing a formal complaint; (2) explain the process for how to

file a formal complaint; (3) inform the complainant that any report made in good faith

will not result in discipline; and (4) respect the complainant’s wishes with respect to

whether to investigate unless the Title IX Coordinator determines it is necessary to

pursue the complaint in light of a health or safety concern for the community.

• Example Policy 2: Choosing to make a report, file a formal complaint, and/or meet with

the Title IX Coordinator after a report or formal complaint has been made, and deciding

how to proceed, can be a process that unfolds over time. You do not have to decide

whether to pursue a formal complaint or to name the other party/ies at the time of the

report. Reporting does not mean you wish to pursue a formal complaint—it may mean

you would like help accessing resources and supportive measures. You do not have to

pursue a formal complaint to take advantage of the supportive measures available to

you.

Example Policy Used by Elementary and Secondary Schools

• Example Policy 1: The district must respond whenever any District employee has been

put on actual notice of any sexual harassment or allegations of sexual harassment as

defined in this district’s policy. This mandatory obligation is in addition to the child

abuse mandatory reporting obligation under state law.

II. Supportive Measures

Example Policies Used by Elementary and Secondary Schools and Postsecondary Schools

• Example Policy 1: Supportive measures are short-term measures that are designed to

restore or preserve access to the school’s education program or activity. Examples of

supportive measures include counseling, extensions of deadlines or other course-related

adjustments, modifications of work or class schedules, campus escort services, mutual

restrictions on contact between the parties, changes in work or housing locations,

leaves of absence, increased security and monitoring of certain areas of the campus,

and other similar measures.

• Example Policy 2: Supportive measures are available regardless of whether the

complainant chooses to pursue any action under this school’s policy, including before

and after the filing of a formal complaint or where no formal complaint has been filed.

Supportive measures are available to the complainant, respondent, and as appropriate,

witnesses or other impacted individuals. The Title IX Coordinator will maintain

consistent contact with the parties to ensure that safety and emotional and physical

well-being are being addressed. Generally, supportive measures are meant to be short-

term in nature and will be re-evaluated on a periodic basis. To the extent there is a

continuing need for supportive measures after the conclusion of the resolution process,

the Title IX Coordinator will work with appropriate school resources to provide

continued assistance to the parties.

• Example Policy 3: Supportive measures are provided based on an individualized

assessment of the needs of the individual. They may include, but are not limited to:

facilitating access to medical and counseling services, assistance in arranging the

rescheduling of exams and assignments, academic support services, assistance in

requesting long-term academic accommodations if the individual qualifies as an

individual with a disability, allowing either a complainant or respondent to drop a class

in which both parties are enrolled, a mutual “no contact order,” and any other

reasonably supportive measure that does not unreasonably burden the other party’s

access to education and that serves the goals of this policy.

• Example Policy 4: The school will make available supportive measures with or without

the filing of a formal complaint. These supports will be available to both parties, free of

charge. These supports are non-disciplinary and non-punitive individualized services

designed to offer support without being unreasonably burdensome. They are meant to

restore access to education, protect student and employee safety, and/or deter future

acts of sexual harassment. Supportive measures are temporary and flexible, based on

the needs of the individual and may include counseling, extensions of deadlines or

course-related adjustments, restrictions on contact between parties (must be applied

equally to both parties), leaves of absence, and increased security and monitoring of

certain areas of the school.

III. Investigations

Example Policies Used by Elementary and Secondary Schools and Postsecondary Schools

• Example Policy 1: Once a formal Title IX complaint is filed, an investigator will be

assigned and the parties will be treated equitably, including in the provision of

supportive measures and remedies. They will receive notice of the specifics of the

allegations as known, and as any arise during the investigation. The investigator will be

unbiased and free from conflicts of interest and will objectively review the complaint,

any evidence, and any information from witnesses, expert witnesses, and the parties. If

the investigator conducts interviews, the parties will be provided time to prepare and

will receive notice of the time/date/location/participants/purpose for the interviews.

• Example Policy 2: Upon receipt of a formal Title IX complaint, the Title IX Coordinator

will appoint an Investigator to investigate the allegations subject to the formal grievance

process. The investigation may include, among other things, interviewing the

complainant, the respondent, and any witnesses; reviewing law enforcement

investigation documents if applicable; reviewing relevant student or employment files

(preserving confidentiality wherever necessary); and gathering and examining other

relevant documents, social media, and evidence.

Example Policies Used by Elementary and Secondary Schools

• Example Policy 1: The Investigator will attempt to collect all relevant information and

evidence. While the Investigator will have the burden of gathering evidence, it is crucial

that the parties present evidence and identify witnesses to the Investigator so that they

may be considered during the investigation. While all evidence gathered during the

investigative process and obtained through the exchange of written questions will be

considered, the decision-maker may in their discretion grant lesser weight to last-

minute information or evidence introduced through the exchange of written questions

that was not previously presented for investigation by the Investigator.

• Example Policy 2: The decision-maker will facilitate a written question and answer

period between the parties. Each party may submit their written questions for the other

party and witnesses to the decision-maker for review. The questions must be relevant to

the case. The decision-maker will determine if the questions submitted are relevant and

will then forward the relevant questions to the other party or witnesses for a response.

The decision-maker can then review all the responses, determine what is relevant or not

relevant, and issue a decision as to whether the Respondent is responsible for the

alleged sexual harassment.

IV. The Role of the Advisor

Example Policies Used by Postsecondary Schools

• Example Policy 1: The role of the advisor is narrow in scope: the advisor may attend any

interview or meeting connected with the grievance process that the party whom they

are advising is invited to attend, but the advisor may not actively participate in

interviews and may not serve as a proxy for the party. The advisor may attend the

hearing and may conduct cross-examination of the other party and any witnesses at the

hearing; otherwise, the advisor may not actively participate in the hearing.

• Example Policy 2: During meetings and hearings, the advisor may talk quietly with the

student or pass notes in a non-disruptive manner. The advisor may not intervene in

meetings with the school. In addition, while advisors may provide guidance and

assistance throughout the process, all written submissions must be authored by the

student.

• Example Policy 3: The advisor may provide advice and consultation to the parties or

parties’ witnesses outside of the conduct of the live hearing to assist parties in handling

the formal resolution process.

V. The Live Hearing Process

Example Policies Used by Postsecondary Schools

A. Before the hearing

• Example Policy 1: In order to promote a fair and expeditious hearing, the parties and

their advisors will attend a pre-hearing conference with the decision-maker. The pre-

hearing conference assures that the parties and their advisors understand the hearing

process and allows for significant issues to be addressed in advance of the hearing.

While elementary and secondary schools may choose to permit parties to have an advisor, the 2020

amendments only require an advisor at the postsecondary school level due to the cross-examination

requirement. See the Question 41 in the Q&A for more information.

While elementary and secondary schools may choose to use a live hearing, the 2020 amendments only

require a live hearing with cross-examination at the postsecondary school level. See Section XII in the

Q&A for more information.

B. Hearing format

• Example Policy 1: While the hearing is not intended to be a repeat of the investigation,

the parties will be provided with an equal opportunity for their advisors to conduct

cross-examination of the other party and of relevant witnesses. A typical hearing may

include: brief opening remarks by the decision-maker; questions posed by the decision-

maker to one or both of the parties; cross-examination by either party’s advisor of the

other party and relevant witnesses; and questions posed by the decision-maker to any

relevant witnesses.

• Example Policy 2: The parties and witnesses will address only the decision-maker, and

not each other. Only the decision-maker and the parties’ advisors may question

witnesses and parties.

• Example Policy 3: When it is an individual’s turn to appear before the decision-maker,

that person will appear separately before the panel and may bring notes for their

reference. The decision-maker may ask any individual for a copy of or to inspect their

notes. The complainant and respondent may be accompanied by or may otherwise be in

contact with their advisor at all times. If the hearing is conducted wholly or partially

through video conference, an administrator will ensure that each party has the

opportunity to appear before or speak directly to the hearing panel and to appropriately

participate in the questioning process.

• Example Policy 4: At the request of either party, the decision-maker will allow the

parties and/or witnesses to be visually separated during the hearing. This may include,

but is not limited to, the use of videoconference and/or any other appropriate

technology. To assess credibility, the decision-maker must have sufficient access to the

complainant, respondent, and any witnesses presenting information; if the decision-

maker is sighted, then the decision-maker must be able to see them.

• Example Policy 5: Parties will be able to see and hear (or, if deaf or hard of hearing, to

access through auxiliary aids or services) all questioning and testimony at the hearing, if

they choose to. Witnesses (other than the parties) will attend the hearing only for their

own testimony.

• Example Policy 6: The school will ensure that students with disabilities have an equal

opportunity to participate in, and benefit from the school’s Title IX grievance process,

consistent with the requirements of Section 504 of the Rehabilitation Act of 1973. The

school will also ensure that English learner students can participate meaningfully and

equally in the school’s Title IX grievance process, as required by Title VI of the Civil

Rights Act of 1964 and the Equal Educational Opportunities Act of 1974.

C. Evidence

• Example Policy 1: The hearing is an opportunity for the parties to address the decision-

maker. The parties may address any information in the investigative report, submit

supplemental statements in response to the investigative report or, at the time of any

sanction, provide verbal impact and mitigation statements. The school will make all

evidence gathered available to the parties at the hearing to give each party equal

opportunity to refer to such evidence during the hearing, including for purposes of

cross-examination. In reaching a determination, the decision-maker will meet with the

complainant, respondent, investigator, and any relevant witnesses, but the decision-

maker may not conduct their own investigation.

• Example Policy 2: The parties will have the opportunity to present the evidence they

submitted, subject to any exclusions determined by the decision-maker. Generally, the

parties may not introduce evidence, including witness testimony, at the hearing that

they did not identify during the pre-hearing process. However, the decision-maker has

discretion to accept or exclude additional evidence presented at the hearing. In

addition, the parties are expected not to spend time on undisputed facts or evidence

that would be duplicative.

• Example Policy 3: Courtroom rules of evidence and procedure will not apply. The

decision-maker will generally consider, that is rely on, all evidence that they determine

to be relevant and reliable. Throughout the hearing, the decision-maker will: (1) Exclude

evidence including witness testimony that is, for example, irrelevant in light of the policy

violation(s) charged, relevant only to issues not in dispute, or unduly repetitive, and will

require rephrasing of questions that violate the rules of conduct; (2) Decide any

procedural issues for the hearing; and/or (3) Make any other determinations necessary

to promote an orderly, productive, and fair hearing that complies with the rules of

conduct.

D. Confidentiality

• Example Policy 1: All live hearings will be closed to the public and witnesses will be

present only during their testimony. For live hearings that use technology, the decision-

maker shall ensure that appropriate protections are in place to maintain confidentiality.

• Example Policy 2: The hearing is a closed proceeding and is not open to the public. All

participants involved in a hearing are expected to respect the seriousness of the matter

and the privacy of the individuals involved. The school’s expectation of privacy during

the hearing process should not be understood to limit any legal rights of the parties

during or after the resolution. The school may not, by federal law, prohibit the

complainant from disclosing the final outcome of a formal complaint process (after any

appeals are concluded). All other conditions for disclosure of hearing records and

outcomes are governed by the school’s obligations under the Family Educational Rights

and Privacy Act (FERPA), any other applicable privacy laws, and professional ethical

standards.

E. Decision-makers asking questions of the parties or witnesses

• Example Policy 1: The decision-maker may question the parties and witnesses, but they

may refuse to respond.

VI. Behavior During the Live Hearing/Rules of Decorum

Example Policies Used by Postsecondary Schools

• Example Policy 1: The school will require all parties, advisors, and witnesses to maintain

appropriate decorum throughout the live hearing. Participants at the live hearing are

expected to abide by the decision-maker’s directions and determinations, maintain

civility, and avoid emotional outbursts and raised voices. Repeated violations of

appropriate decorum will result in a break in the live hearing, the length of which will be

determined by the decision-maker. The decision-maker reserves the right to appoint a

different advisor to conduct cross-examination on behalf of a party after an advisor’s

repeated violations of appropriate decorum or other rules related to the conduct of the

live hearing.

• Example Policy 2: The hearing will be conducted in a respectful manner that promotes

fairness and accurate factfinding and that complies with the rules of conduct.

• Example Policy 3: The school (including any official acting on behalf of the school such as

an investigator or a decision-maker) has the right at all times to determine what

constitutes appropriate behavior on the part of an advisor and to take appropriate steps

to ensure compliance with this policy.

• Example Policy 4: Parties and advisors may take no action at the hearing that a

reasonable person would see as intended to intimidate that person (whether party,

witness, or official) into not participating in the process or meaningfully modifying their

participation in the process.

VII. Protecting the Well-Being of the Parties During the Live

Hearing/Investigation

Example Policies Used by Postsecondary Schools

• Example Policy 1: Each participating individual will have access to a private room for the

duration of the hearing if the hearing is in person and may choose to participate in the

proceedings via video conference.

• Example Policy 2: The decision-maker will discuss measures available to protect the

well-being of parties and witnesses at the hearing. These may include, for example, use

of lived names and pronouns during the hearing, including names appearing on a

screen; a party’s right to have their support person available to them at all times during

the hearing (in addition to their advisor); and a hearing participant’s ability to request a

break during the hearing, except when a question is pending.

Example Policy Used by Elementary and Secondary Schools

• Example Policy 1: To the greatest extent possible, and subject to Title IX, the school will

make reasonable accommodations in an investigation to avoid potential re-

traumatization of a child and to avoid any potential interference with an investigation by

the Department of Child and Family Services or a law enforcement agency.

• Example Policy 2: The school will ensure that students with disabilities have an equal

opportunity to participate in, and benefit from the school’s Title IX grievance process,

consistent with the requirements of Section 504 of the Rehabilitation Act of 1973. The

school will also ensure that English learner students can participate meaningfully and

equally in the school’s Title IX grievance process, as required by Title VI of the Civil

Rights Act of 1964 and the Equal Educational Opportunities Act of 1974.

VIII. The Cross-Examination Process

Example Policies Used by Postsecondary Schools

A. Explaining Cross-Examination

• Example Policy 1: The parties’ advisors will have the opportunity to cross examine the

other party (and witnesses, if any). Such cross-examination must be conducted directly,

orally, and in real time by the party’s advisor and never by a party personally.

• Example Policy 2: Each party’s advisor may pose relevant questions to the opposing

party and witnesses (including the Investigative Team).

• Example Policy 3: Each party will prepare their questions, including any follow-up

questions, for the other party and witnesses, and will provide them to their advisor. The

advisor will ask the questions as the party has provided them, and may not ask

questions that the advisor themselves have developed without their party.

• Example Policy 4: The role of the advisor at the live hearing is to conduct cross-

examination on behalf of a party. The advisor is not to represent a party, but only to

relay the party’s cross-examination questions that the party wishes to have asked of the

other party and witnesses. Advisors may not raise objections or make statements or

arguments during the live hearing.

B. Relevant questions only/Decision-maker reviews all questions

• Example Policy 1: Only relevant questions may be asked of a party or witness. Before a

complainant, respondent, or witness responds to a question, the decision-maker will

first determine whether the question is relevant and explain any decision to exclude a

question as not relevant.

• Example Policy 2: When a party’s advisor is asking questions of the other party or a

witness, the decision-maker will determine whether each question is relevant before

the party or witness answers it, will exclude any that are not relevant or unduly

repetitive, and will require rephrasing of any questions that violate the rules of conduct.

If the decision-maker determines that a question should be excluded as not relevant,

they will explain their reasoning.

• Example Policy 3: Only relevant cross-examination questions and follow-up questions,

including those that challenge credibility, may be asked. Before a complainant,

respondent, or witness answers a cross-examination or other question, the decision-

maker first must determine whether the question is relevant or cumulative and must

explain any decision to exclude a question that is not relevant or is cumulative.

IX. Restrictions on Considering a Complainant’s or Respondent’s Sexual History

Example Policies Used by Elementary and Secondary Schools and Postsecondary Schools

• Example Policy 1: The investigator will not, as a general rule, consider the sexual history

of a complainant or respondent. However, in limited circumstances, sexual history may

be directly relevant to the investigation. As to complainants: While the investigator will

never assume that a past sexual relationship between the parties means the

complainant consented to the specific conduct under investigation, evidence of how the

parties communicated consent in past consensual encounters may help the investigator

understand whether the respondent reasonably believed consent was given during the

encounter under investigation. Further, evidence of specific past sexual encounters may

be relevant to whether someone other than respondent was the source of relevant

physical evidence. As to respondents: Sexual history of a respondent might be relevant

to show a pattern of behavior by respondent or resolve another issue of importance in

the investigation. Sexual history evidence that is being proffered to show a party’s

reputation or character will never be considered relevant on its own.

• Example Policy 2: An individual’s character or reputation with respect to other sexual

activity is not relevant and will not be considered as evidence. Similarly, an individual’s

prior or subsequent sexual activity is typically not relevant and will only be considered

as evidence under limited circumstances. For example, prior sexual history may be

relevant to explain the presence of a physical injury or to help resolve other questions

raised in the investigation. It may also be relevant to show that someone other than the

respondent committed the conduct alleged by the complainant. The investigator will

determine the relevance of this information, and both parties will be informed in writing

if evidence of prior sexual history is deemed relevant.

• Example Policy 3: Where the parties have a prior sexual relationship and the existence

of consent is at issue, the sexual history between the parties may be relevant to help

understand the manner and nature of communications between the parties and the

context of the relationship, which may have bearing on whether consent was sought

and given during the incident in question. Even in the context of a relationship,

however, consent to one sexual act does not, by itself, constitute consent to another

sexual act; in addition, consent on one occasion does not, by itself, constitute consent

on a subsequent occasion. The investigator will determine the relevance of this

information and both parties will be informed if evidence of prior sexual history is

deemed relevant.

X. Situations in Which a Party or Witness Does Not Participate in a Live

Hearing or in Cross-examination

Please note: A federal district court order issued on July 28, 2021,

set aside the part of the

2020 amendments that states: “If a party or witness does not submit to cross-examination at

the live hearing, the decision-maker(s) must not rely on any statement of that party or witness

in reaching a determination regarding responsibility.” 34 C.F.R. § 106.45(b)(6)(i). The strike-

through below indicates that statements in this document contained in Example Policies 1, 3,

and 4 in this section may not be relied upon in light of Victim Rights Law Center et al. v.

Cardona, No. 1:20-cv-11104, 2021 WL 3185743 (D. Mass. July 28, 2021), appeals pending (1st

Cir.).

Example Policies Used by Postsecondary Schools

Victim Rights Law Center et al. v. Cardona, No. 1:20-cv-11104, 2021 WL 3185743 (D. Mass. July 28, 2021), appeals

pending (1st Cir.).

• Example Policy 1: If the complainant, the respondent, or a witness informs the school

that they will not attend the hearing (or will attend but refuse to be cross-examined),

the school’s Title IX Coordinator may determine that the hearing may still proceed. The

decision-maker may not, however: (a) rely on any statement or information provided by

that non-participating individual in reaching a determination regarding responsibility; or

(b) draw any adverse inference in reaching a determination regarding responsibility

based solely on the individual’s absence from the hearing (or their refusal to be cross-

examined).

• Example Policy 2: Neither the complainant nor the respondent is required to participate

in the resolution process outlined in these procedures. The school will not draw any

adverse inferences from a complainant’s or respondent’s decision not to participate or

to remain silent during the process. An investigator or decision-maker, in the

investigation or the hearing respectively, will reach findings and conclusions based on

the information available.

• Example Policy 3: If a party does not submit to cross-examination, the decision-maker

cannot rely on any prior statements made by that party in reaching a determination

regarding responsibility, but may reach a determination regarding responsibility based

on evidence that does not constitute a statement by that party. The decision-maker may

also consider evidence created by the party where the evidence itself constituted the

alleged prohibited conduct. Such evidence may include, by way of example but not

limitation, text messages, e-mails, social media postings, audio or video recordings, or

other documents or digital media created and sent by a party as a form of alleged sexual

harassment, or as part of an alleged course of conduct that constitutes stalking. The

decision-maker cannot draw an inference about the responsibility for a policy violation

based solely on a party’s absence from the hearing or refusal to answer cross-

examination or other questions.

• Example Policy 4: A statement is a person’s intent to make factual assertions, including

evidence that contains a person’s statement(s). Party or witness statements, police

reports, Sexual Assault Nurse Examiner (SANE) reports, medical reports, and other

records may not be relied upon in making a final determination after the completion of

a live hearing to the extent that they contain statements of a party or witness who has

not submitted to cross-examination. However, the decision-maker cannot draw any

inference about the determination regarding responsibility based solely on a party’s or

witness’s absence from the live hearing or their refusal to answer cross-examination

questions.

XI. Presumptions about Complainants, Respondents, and Witnesses

Example Policies Used by Elementary and Secondary Schools and Postsecondary Schools

• Example Policy 1: The school presumes that reports of prohibited conduct are made

in good faith. A finding that the alleged behavior does not constitute a violation of

this school’s policy or that there is insufficient evidence to establish that the alleged

conduct occurred as reported does not mean that the report was made in bad faith.

• Example Policy 2: All formal sexual misconduct complaints are assumed to be made

in good faith. However, if the evidence establishes that the formal complaint was

intentionally falsely made, corrective/disciplinary action may be taken, up to and

including suspension, expulsion, or termination. This does not include allegations

that are made in good faith but are ultimately shown to be erroneous or do not

result in a policy violation determination.

• Example Policy 3: The respondent is presumed to be not responsible for the alleged

conduct until a determination regarding responsibility is made by the decision-

maker.

• Example Policy 4: An individual’s status as a respondent will not be considered a

negative factor during consideration of the grievance. Respondents are entitled to,

and will receive the benefit of, a presumption that they are not responsible for the

alleged conduct until the grievance process concludes and a determination

regarding responsibility is issued. Similarly, credibility determinations will not be

based on a person’s status as a complainant, respondent, or witness.

XII. Determination Regarding Responsibility

Example Policies Used by Elementary and Secondary Schools and Postsecondary Schools

• Example Policy 1: The school will review the evidence provided by all parties and will

make a final determination of responsibility after the investigation. The decision-maker

will not be the Title IX Coordinator, the investigator, or any other individual who may

have a conflict of interest. The final determination will be provided to the parties at the

same time, with appeal rights provided. It will explain if any policies were violated, the

steps and methods taken to investigate, the findings of the investigation, conclusions

about the findings, the ultimate determination and the reasons for it, any disciplinary

sanctions that will be imposed on the respondent, and any remedies available to the

complainant to restore or preserve equal access.

• Example Policy 2: The decision-maker will issue a written determination following the

review of evidence. The written determination will include: (1) identification of

allegations potentially constituting sexual harassment as defined in 34 C.F.R. § 106.30;

(2) a description of the procedural steps taken from the receipt of the complaint

through the determination, including any notifications to the parties, interviews with

parties and witnesses, site visits, and methods used to gather evidence; (3) findings of

fact supporting the determination, conclusions regarding the application of this formal

grievance process to the facts; (4) a statement of, and rationale for, the result as to each

allegation, including any determination regarding responsibility, any disciplinary

sanctions the decision-maker imposed on the respondent that directly relate to the

complainant, and whether remedies designed to restore or preserve equal access to the

school’s education program or activity will be provided to the complainant; and (5)

procedures and permissible bases for the parties to appeal the determination. The

written determination will be provided to the parties simultaneously. Remedies and

supportive measures that do not impact the respondent should not be disclosed in the

written determination; rather the determination should simply state that remedies will

be provided to the complainant.

XIII. Sanctions and Remedies

Example Policies Used by Elementary and Secondary Schools and Postsecondary Schools

• Example Policy 1: The school will take reasonable steps to address any violations of this

policy and to restore or preserve equal access to the school’s education programs or

activities. Sanctions for a finding of responsibility depend upon the nature and gravity of

the misconduct, any record of prior discipline for similar violations, or both. The range of

potential sanctions and corrective actions that may be imposed on a student includes,

but is not limited to the following: [list of possible sanctions decided on by the school].

• Example Policy 2: When a respondent is found responsible for the prohibited behavior

as alleged, sanctions are based on the severity and circumstances of the behavior.

Disciplinary actions or consequences can range from a conference with the respondent

and a school official through suspension or expulsion. When a respondent is found

responsible for the prohibited behavior as alleged, remedies must be provided to the

complainant. Remedies are designed to maintain the complainant’s equal access to

education and may include supportive measures or remedies that are punitive or would

pose a burden to the respondent.

• Example Policy 3: Whatever the outcome of the investigation, hearing, or appeal, the

complainant and respondent may request ongoing or additional supportive measures.

Ongoing supportive measures that do not unreasonably burden a party may be

considered and provided even if the respondent is found not responsible.

• Example Policy 4: The role of the Title IX Coordinator following the receipt of the written

determination from the decision-maker is to facilitate the imposition of sanctions, if any,

the provision of remedies, if any, and to otherwise complete the formal resolution

process. The appropriate school official, after consultation with the Title IX Coordinator,

will determine the sanctions imposed and remedies provided, if any. The Title IX

Coordinator must provide written notice to the parties simultaneously. The school must

disclose to the complainant the sanctions imposed on the respondent that directly

relate to the complainant when such disclosure is necessary to ensure equal access to

the school’s education program or activity.

• Example Policy 5: For students with disabilities: If a decision-maker has determined that

the respondent has engaged in sexual harassment and prior to consideration of

imposing a long-term suspension, reassignment, or recommendation for expulsion, the

following shall occur, and timelines will be extended accordingly: (1) For any student

with an Individualized Education Program (IEP), or that a school has knowledge may be a

child with a disability, the decision-maker will make a referral to the school to conduct a

manifestation determination review (MDR). The MDR team meeting shall convene as

soon as reasonably possible and make available to the decision-maker the MDR decision

and written rationale in no later than ten school days; (2) For any student with a

disability covered by Section 504, the decision-maker will make a referral to have a

knowledgeable committee convene a Section 504 Causality Review. The causality review

meeting shall convene as soon as reasonably possible and make available to the

decision-maker the causality review decision and written rationale in no later than ten

school days; (3) Before a student with a disability is suspended, reassigned, or

recommended for expulsion, the principal of the school will consult with the student’s

case manager, review the student’s IEP, and take into account any special circumstances

regarding the student. The IEP team will consider the parents’ views and any preference

for the reassignment location along with any location proposed by school staff at the

meeting. It is the duty of the IEP team at its meeting to discuss, propose, and decide

upon the educational placement, consistent with the disciplinary decision. Accordingly,

the IEP team will consider the views of all members, including the parents, at the

meeting.

XIV. Appeals

Example Policies Used by Elementary and Secondary Schools and Postsecondary Schools

• Example Policy 1: Each party may appeal (1) the dismissal of a formal complaint or any

included allegations and/or (2) a determination regarding responsibility. To appeal, a

party must submit their written appeal within five business days of being notified of the

decision, including the grounds for the appeal. The grounds for appeal are as follows:

Procedural irregularity that affected the outcome of the matter (i.e., a failure to follow

the institution’s own procedures); New evidence that was not reasonably available at

the time the determination regarding responsibility or dismissal was made, that could

affect the outcome of the matter; The Title IX Coordinator, investigator(s), or decision-

maker(s) had a conflict of interest or bias for or against an individual party, or for or

against complainants or respondents in general, that affected the outcome of the

matter. The submission of an appeal stays any sanctions for the pendency of an appeal.

Supportive measures and remote learning opportunities remain available during the

pendency of the appeal. If a party appeals, the school will as soon as practicable notify

the other party in writing of the appeal; however the time for appeal shall be offered

equitably to all parties and shall not be extended for any party solely because the other

party filed an appeal. Appeals will be decided by an individual, who will be free of

conflict of interest and bias, and will not serve as investigator, Title IX Coordinator, or

decision-maker in the same matter.

• Example Policy 2: Appeals are available after a complaint dismissal or after a final

determination is made. Appeals can be made due to procedural irregularities in the

investigation affecting the outcome, new evidence becoming available, or due to bias or

a conflict of interest by Title IX personnel that may have affected the outcome. Appeal

requests must be made within 30 days of the school’s final determination and include

the rationale for the appeal. Parties will be given an opportunity to submit a written

statement in support of or against the final determination. A new decision-maker will

issue the final decision at the same time to each party.

• Example Policy 3: The complainant and respondent have an equal opportunity to appeal

the policy violation determination and any sanctions. The school administers the appeal

process, but is not a party and does not advocate for or against any appeal. A party may

appeal only on the following grounds and the appeal should identify the reason(s) why

the party is appealing: (1) there was a procedural error in the hearing process that

materially affected the outcome; procedural error refers to alleged deviations from

school policy, and not challenges to policies or procedures themselves; (2) there is new

evidence that was not reasonably available at the time of the hearing and that could

have affected the outcome; (3) the decision-maker had a conflict of interest or bias that

affected the outcome; (4) the determination regarding the policy violation was

unreasonable based on the evidence before the decision-maker; this ground is available

only to a party who participated in the hearing; and (5) the sanctions were

disproportionate to the hearing officer’s findings. The appeal must be submitted within

10 business days following the issuance of the notice of determination. The appeal must

identify the ground(s) for appeal and contain specific arguments supporting each

ground for appeal. The school will notify the other party of the appeal, and that other

party will have an opportunity to submit a written statement in response to the appeal,

within three business days. The school will also inform the parties that they have an

opportunity to meet with the appeal officer separately to discuss the proportionality of

the sanction. The appeal officer, who will not be the same person as the Title IX

Coordinator, investigator, or decision-maker, will decide the appeal considering the

evidence presented at the hearing, the investigation file, and the appeal statements of

both parties. In disproportionate sanction appeals, they may also consider any input the

parties provided during the meeting. The appeal officer will summarize their decision in

a written report that will be sent to the complainant and respondent within 10 business

days of receiving the appeal.

XV. Informal Resolution

Example Policies Used by Elementary and Secondary Schools and Postsecondary Schools

• Example Policy 1: Informal resolution is available only after a formal complaint has been

filed, prior to a determination of responsibility, and if the complainant and respondent

voluntarily consent to the process in writing. Informal resolution is not available in cases

in which an employee is alleged to have sexually harassed a student. Informal resolution

may involve agreement to pursue individual or community remedies, including targeted

or broad-based educational programming or training; supported direct conversation or

interaction with the respondent; mediation; indirect action by the Title IX Coordinator;

and other forms of resolution that can be tailored to the needs of the parties. With the

voluntary consent of the parties, informal resolution may be used to agree upon

disciplinary sanctions. Disciplinary action will only be imposed against a respondent

where there is a sufficient factual foundation and both the complainant and the

respondent have agreed to forego the additional procedures set forth in this school’s

policy and accept an agreed upon sanction. Any person who facilitates an informal

resolution will be trained and free from conflicts of interest or bias for or against either

party.

• Example Policy 2: The informal resolution process is only available where the

complainant has filed a formal sexual harassment complaint that involves parties of the

same status (e.g., student-student or employee-employee) and the parties voluntarily

request in writing to resolve the formal complaint through the informal resolution

process. Within five workdays of receiving a written request to start the informal

resolution process, the school will appoint an official to facilitate an effective and

appropriate resolution. The Title IX Coordinator may serve as the facilitator. Within five

workdays of such appointment, the parties may identify to the Title IX Coordinator in

writing any potential conflict of interest or bias posed by such facilitator to the matter.

The Title IX Coordinator will consider the information and appoint another facilitator if a

material conflict of interest or bias exists. The facilitator will request a written statement

from the parties to be submitted within 10 workdays. Each party may request that

witnesses are interviewed, but the school shall not conduct a full investigation as part of

the informal resolution process. The facilitator will hold a meeting(s) with the parties

and coordinate the informal resolution measures. Each party may have one advisor of

their choice during the meeting, but the advisor may not speak on the party’s behalf.

The informal resolution process should be completed within 30 workdays in most cases,

unless good cause exists to extend the time. The parties will be notified in writing and

given the reason for the delay and an estimated time of completion. Any resolution of a

formal complaint through the informal resolution process must address the concerns of

the complainant and the responsibility of the school to address alleged violations of its

policy, while also respecting the due process rights of the respondent. Informal

resolution process remedies include mandatory training, reflective writing assignment,

counseling, written counseling memorandum by an employee’s supervisor, suspension,

termination, or expulsion, or other methods designed to restore or preserve equal

access to the school’s education programs or activities. At the conclusion of meetings,

interviews, and the receipt of statements, the facilitator will write an informal resolution

report and provide the parties with the informal resolution report simultaneously. At

any time prior to resolving a formal complaint through the informal resolution process,

either party may withdraw in writing from the informal resolution process and resume

or begin the formal resolution process.

• Example Policy 3: The Title IX Coordinator will determine whether it is appropriate to

offer the parties informal resolution in lieu of a formal investigation of the complaint. In

the event that the Title IX Coordinator determines that informal resolution is

appropriate, the parties will be provided written notice 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, provided, however, 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. Both parties must provide voluntary, written consent to

the informal resolution process.

XVI. Addressing Conduct That the School Deems to be Sexual Harassment but

Does Not Meet the Definition of Sexual Harassment Under the Title IX

Regulations

Example Policies Used by Elementary and Secondary Schools and Postsecondary Schools

• Example Policy 1: It is important to note that conduct that does not meet the criteria

under Title IX may violate other federal or state laws or school policies regarding

student misconduct or may be inappropriate and require an immediate response in the

form of supportive measures and remedies to prevent its recurrence and address its

effects.

• Example Policy 2: This school adopts a “two-pronged” approach. All conduct not

covered under the current definition of sexual harassment, including sexual misconduct,

will be addressed by the principal under the student code of conduct. Title IX

procedures will be reserved only for those alleged actions that fall under the Title IX

definition of sexual harassment.

• Example Policy 3: The Title IX Coordinator shall investigate the allegations in all formal

complaints. The Title IX Coordinator must dismiss the formal complaint if the conduct

alleged in the formal complaint would not constitute sexual harassment as defined in

this school’s policy even if proved, or is outside the jurisdiction of the school, i.e., the

conduct did not involve an education program or activity of the school, or did not occur

against a person in the United States. The Title IX Coordinator shall forward the formal

complaint to an appropriate school official that will determine whether the conduct

alleged in the formal complaint violates a separate policy or code of conduct.

• Example Policy 4: In May of 2020, the U.S. Department of Education issued new

regulations for colleges and universities that address sexual assault and other sexual

misconduct. These regulations cover certain specific forms of sexual misconduct. To

comply with these regulations, this school has revised its existing policy for those types

of misconduct. In addition, this school maintains its existing Sexual Misconduct Policy

for other types of sexual misconduct that are not covered by the new regulations. Both

policies are important to creating and supporting a school community that rejects all

forms of sexual misconduct.

• Example Policy 5: The Title IX regulations direct the school’s response to some, but not

all, of the forms of prohibited behavior in this school’s Title IX policy. Allegations in a

Title IX formal complaint related to behavior that occurs outside of the education

program or activity or outside the United States, or behavior that would not meet the

definition of Title IX sexual harassment as defined in this school’s Title IX policy, must be

dismissed. Both the complainant and respondent may appeal the dismissal of any

allegations under Title IX. However, in keeping with the school’s educational mission

and commitment to fostering a learning, living, and working environment free from

discrimination, harassment, and retaliation, this school will still move forward with an

investigation or formal resolution under the same resolution process for all forms of

prohibited behavior under this school’s Title IX policy. In this instance, this school is

using its Title IX policy as a code of conduct to address behavior that occurred outside of

the education program or activity or outside of the United States, even though the

behavior falls outside of Title IX jurisdiction under the Department of Education’s 2020

amendments.

XVII. Parent and Guardian Rights

Example Policy Used by Elementary and Secondary Schools

• Example Policy 1: Consistent with the applicable laws of the jurisdiction in which the

school is located, a student’s parent or guardian must be permitted to exercise the

rights granted to their child under this school’s policy, whether such rights involve

requesting supportive measures, filing a formal complaint, or participating in a

grievance process. A student’s parent or guardian must also be permitted to accompany

the student to meetings, interviews, and hearings, if applicable, during a grievance

process in order to exercise rights on behalf of the student. The student may have an

advisor of choice who is a different person from the parent or guardian.