30026 Federal Register /Vol. 85, No. 97/Tuesday, May 19 .

Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and RegulationsSame Respondent [Removed in FinalRegulations]Proposed § 106.44(b)(3) SupportiveMeasures Safe Harbor in Absence of aFormal Complaint [removed in finalregulations]Section 106.44(b)(2) OCR Will Not ReWeigh the EvidenceAdditional Rules Governing Recipients’Responses to Sexual HarassmentSection 106.44(c) Emergency RemovalOverall Support and Opposition toEmergency RemovalsIntersection With the IDEA, Section 504,and ADAPost-Removal ChallengesNo Stated Time Limitation for theEmergency Removal‘‘Removal’’‘‘Individualized Safety and Risk Analysis’’‘‘Provides the Respondent With Notice andan Opportunity To Challenge theDecision Immediately Following theRemoval’’How OCR Will Enforce the ProvisionSection 106.44(d) Administrative LeaveSection 106.45 Recipient’s Response toFormal ComplaintsGeneral Requirements for § 106.45Grievance ProcessSection 106.45(a) Treatment ofComplainants or Respondents CanViolate Title IXSection 106.45(b)(1)(i) Equitable Treatmentof Complainants and RespondentsSection 106.45(b)(1)(ii) ObjectiveEvaluation of All Relevant EvidenceSection 106.45(b)(1)(iii) Impartiality andMandatory Training of Title IXPersonnel; Directed Question 4(Training)Section 106.45(b)(1)(iv) Presumption ofNon-ResponsibilityPurpose of the PresumptionStudents of Color, LGBTQ Students, andIndividuals With DisabilitiesThe Complainant’s Right to Due ProcessProtectionsFalse AllegationsInaccurate Findings of Non-ResponsibilityRecipients Should Apply DualPresumptions or No PresumptionThe Adversarial Nature of the GrievanceProcessSupportive MeasuresMiscellaneous ConcernsSection 106.45(b)(1)(v) Reasonably PromptTime FramesSupportOpposition—Lack of Specified Time LimitEffects on RecipientsConcerns Regarding Concurrent LawEnforcement ActivityAlternative ProposalsClarification RequestsSection 106.45(b)(1)(vi) Describe Range orList of Possible Sanctions and RemediesSection 106.45(b)(1)(vii) Describe Standardof EvidenceSection 106.45(b)(1)(viii) Procedures andBases for AppealSection 106.45(b)(1)(ix) Describe Range ofSupportive MeasuresSection 106.45(b)(1)(x) PrivilegedInformationWritten Notice of AllegationsVerDate Sep 11 201419:08 May 18, 2020Jkt 250001Section 106.45(b)(2) Written Notice ofAllegationsRetaliationWarning Against False StatementsInvestigative ProcessAdministrative Burden on SchoolsElementary and Secondary SchoolsConfidentiality and Anonymity forComplainantsGeneral Modification SuggestionsGeneral Clarification RequestsDismissal and Consolidation of FormalComplaintsSection 106.45(b)(3)(i) MandatoryDismissal of Formal ComplaintsSection 106.45(b)(3)(ii)–(iii) DiscretionaryDismissals/Notice of DismissalSection 106.45(b)(4) Consolidation ofFormal ComplaintsInvestigationSection 106.45(b)(5)(i) Burdens of Proofand Gathering Evidence Rest on theRecipientSection 106.45(b)(5)(ii) Equal OpportunityTo Present Witnesses and OtherInculpatory/Exculpatory EvidenceSection 106.45(b)(5)(iii) Recipients MustNot Restrict Ability of Either Party ToDiscuss Allegations or Gather andPresent Relevant EvidenceSection 106.45(b)(5)(iv) Advisors of ChoiceSupporting Presence and Participation ofAdvisorsFairness ConsiderationsConflicts of Interest, Confidentiality, andUnion IssuesModification RequestsSection 106.45(b)(5)(v) Written Notice ofHearings, Meetings, and InterviewsSection 106.45(b)(5)(vi) Inspection andReview of Evidence Directly Related tothe Allegations, and Directed Question 7Section 106.45(b)(5)(vii) An InvestigativeReport that Fairly Summarizes RelevantEvidenceHearingsCross-Examination GenerallySupport for Cross-ExaminationRetraumatizing ComplainantsReducing Truth-SeekingDemeanor Evaluation Is UnreliableTrauma ResponsesReliance on Rape MythsCross-Examination as a Due ProcessRequirementDiscourages ParticipationFinancial InequitiesChanges the Nature of the GrievanceProcessSection 106.45(b)(6)(ii) Should Apply toPostsecondary InstitutionsFalse Accusations Occur InfrequentlyExcluding Cross-Examination QuestionsSection 106.45(b)(6)(i) PostsecondaryInstitution Recipients Must Provide LiveHearing With Cross-ExaminationSelf-Representation Versus CrossExamination Conducted by AdvisorsExplain Decision to Exclude QuestionsNo Reliance on Statements of a Party WhoDoes Not Submit to Cross-ExaminationRape Shield ProtectionsSeparate Rooms for Cross-ExaminationFacilitated by Technology; DirectedQuestion 9Discretion To Hold Live Hearings andControl Conduct of HearingsPO 00000Frm 00003Fmt 4701Sfmt 470030027Section 106.45(b)(6)(ii) Elementary andSecondary School Recipients MayRequire Hearing and Must HaveOpportunity To Submit WrittenQuestionsDeterminations Regarding ResponsibilitySection 106.45(b)(7)(i) Single InvestigatorModel ProhibitedBenefits of Ending the Single InvestigatorModelConsistency with Case LawAlternative Approaches to Ending SingleInvestigator ModelChilling Reporting and Other HarmfulEffectsRespecting the Roles of Title IXCoordinators and InvestigatorsPreserving Recipient AutonomyConsistency With Federal Law andEmployment PracticesLimiting the Prohibition of the SingleInvestigator ModelRequests for ClarificationSection 106.45(b)(7)(i) Standard ofEvidence and Directed Question 6Mandating a Higher Standard of EvidenceSupporting § 106.45(b)(7)(i)One-Sided Condition on Choice ofEvidentiary StandardSame Evidentiary Standard in Student andFaculty CasesRequiring the Preponderance of theEvidence StandardImproving Accuracy of OutcomesSafety ConcernsConsistency of Standards of EvidenceAcross RecipientsStandards of Evidence Below thePreponderance of the EvidenceQuestioning the Department’s LegalAuthorityAlternative Approaches and ClarificationRequestsSection 106.45(b)(7)(ii) WrittenDetermination Regarding ResponsibilityMust Include Certain DetailsSection 106.45(b)(7)(iii) Timing of Whenthe Decision Becomes Final[§ 106.45(b)(7)(iv) Title IX CoordinatorResponsible for Effective Implementationof Remedies: Addressed Under§ 106.45(b)(7)(iii)]Transcript NotationsAppealsSection 106.45(b)(8) AppealsInformal ResolutionSection 106.45(b)(9) Informal ResolutionSupporting and Expanding InformalResolutionTerminology ClarificationsWritten Notice ImplicationsVoluntary ConsentSafety Concerns Based on ConfidentialityConsistency With Other Law and PracticeTraining RequirementsNon-Binding Informal ResolutionSurvivor-Oriented ProtectionsRestorative JusticeAvoiding Formal ProcessElectronic DisclosuresExpulsion Through Informal ResolutionClarification RequestsRecordkeepingSection 106.45(b)(10) Recordkeeping andDirected Question 8Clarifying Amendments to ExistingRegulationsE:\FR\FM\19MYR2.SGM19MYR2

30028Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and RegulationsSection 106.3(a) Remedial ActionSection 106.6(d)(1) First AmendmentSection 106.6(d)(2) Due ProcessSection 106.6(d)(3) Other ConstitutionalRightsSection 106.6(e) FERPABackgroundComments, Discussion, and ChangesSection 106.6(f) Title VII and DirectedQuestion 3 (Application to Employees)Section 106.6(g) Exercise of Rights byParents/GuardiansSection 106.6(h) Preemptive EffectSection 106.8(a) Designation ofCoordinatorSection 106.8(b) Dissemination of PolicyRemoval of 34 CFR 106.9(c)List of PublicationsProfessional OrganizationsParents of Elementary and SecondarySchool StudentsSubjectivity in Publications’ Implication ofDiscriminationJudicial Requirements for SexDiscriminationImplicit Forms of Sex DiscriminationAnalogous Provisions in Other LawsSuggested ModificationsSection 106.8(c) Adoption and Publicationof Grievance ProceduresSection 106.8(d) Application Outside theUnited StatesSection 106.12 Educational InstitutionsControlled by a Religious OrganizationDirected QuestionsDirected Question 1: Application toElementary and Secondary SchoolsDirected Question 2: Application Based onType of Recipient or Age of PartiesDirected Question 5: Individuals WithDisabilitiesMiscellaneousExecutive Orders and Other RequirementsLength of Public Comment Period/Requestsfor ExtensionConflicts With First Amendment,Constitutional Confirmation,International LawClery ActBackgroundComments, Discussion, and ChangesDifferent Standards for Other HarassmentSpending ClauseLitigation RiskEffective DateRetaliationSection 106.71 Retaliation ProhibitedSeverabilityRegulatory Impact Analysis (RIA)Costs of Sexual Harassment and AssaultOverall Net Effects/Characterization ofSavingsMotivation for RulemakingThe Department’s Model and BaselineAssumptionsData SourcesOtherSection 106.44(a) Supportive MeasuresSection 106.45(b)(1)(iii) Title IXCoordinators, Investigators, andDecision-Makers Must Be ProperlyTrainedSection 106.45(b)(5) Investigation ofFormal ComplaintsSection 106.45(b)(6) HearingsSection 106.45(b)(7) DeterminationsRegarding ResponsibilityVerDate Sep 11 201419:08 May 18, 2020Jkt 250001Section 106.45(b)(8) AppealsSection 106.45(b)(9) Informal ResolutionExecutive Orders 12866, 13563, and 13771Regulatory Impact AnalysisNeed for Regulatory ActionDiscussion of Costs, Benefits, and TransfersRegulatory Alternatives ConsideredAccounting StatementRegulatory Flexibility ActPaperwork Reduction Act of 1995Accessible FormatElectronic Access to This DocumentEffective DateOn March 13, 2020, the President ofthe United States declared that anational emergency concerning thenovel coronavirus disease (COVID–19)outbreak began on March 1, 2020, asstated in ‘‘Declaring a NationalEmergency Concerning the NovelCoronavirus Disease (COVID–19)Outbreak,’’ Proclamation 9994 of March13, 2020, Federal Register Vol. 85, No.53 at 15337–38. The Departmentappreciates that exigent circumstancesexist as a result of the COVID–19national emergency, and that theseexigent circumstances require greatattention and care on the part of States,local governments, and recipients ofFederal financial assistance. TheDepartment recognizes the practicalnecessity of allowing recipients ofFederal financial assistance time to planfor implementing these finalregulations, including to the extentnecessary, time to amend their policiesand procedures necessary to comply.Taking into account this nationalemergency, as well as consideration ofpublic comments about an effective dateas discussed in the ‘‘Effective Date’’subsection of the ‘‘Miscellaneous’’section of this preamble, the Departmenthas determined that these finalregulations are effective August 14,2020.Executive SummaryPurpose of This Regulatory ActionEnacted in 1972, Title IX prohibitsdiscrimination on the basis of sex ineducation programs and activities thatreceive Federal financial assistance.1 Inits 1979 opinion Cannon v. University ofChicago,2 the Supreme Court stated thatthe objectives of Title IX are two-fold:first, to ‘‘avoid the use of Federalresources to support discriminatorypractices’’ and second, to ‘‘provideindividual citizens effective protection1 20 U.S.C. 1681 (‘‘No person in the United Statesshall, on the basis of sex, be excluded fromparticipation in, be denied the benefits of, or besubjected to discrimination under any educationprogram or activity receiving Federal financialassistance . . . .’’).2 441 U.S. 677 (1979).PO 00000Frm 00004Fmt 4701Sfmt 4700against those practices.’’ 3 The U.S.Department of Education (the‘‘Department’’ or ‘‘we’’) may issue ruleseffectuating the dual purposes of TitleIX.4 We refer herein to Title IX’sprohibition on sex discrimination andpurposes as described by the SupremeCourt as Title IX’s non-discriminationmandate.The Department’s predecessor, theDepartment of Health, Education, andWelfare (HEW), first promulgatedregulations under Title IX, effective in1975.5 Those regulations reinforcedTitle IX’s non-discrimination mandate,addressing prohibition of sexdiscrimination in hiring, admissions,athletics, and other aspects ofrecipients’ education programs oractivities. The 1975 regulations alsorequired recipients to designate anemployee to coordinate the recipient’sefforts to comply with Title IX and toadopt and publish grievance proceduresproviding for prompt and equitableresolution of complaints that a recipientis discriminating based on sex.When HEW issued its regulations in1975, the Federal courts had not yetaddressed recipients’ Title IXobligations with respect to sexualharassment as a form of sexdiscrimination. In the decades sinceHEW issued the 1975 regulations, theDepartment has not promulgated anyTitle IX regulations to address sexualharassment as a form of sexdiscrimination. Beginning in 1997, theDepartment addressed this subjectthrough a series of guidance documents,most notably the 2001 Guidance 63 Cannon v. Univ. of Chicago, 441 U.S. 677, 704(1979).4 20 U.S.C. 1682 (‘‘Each Federal department andagency which is empowered to extend Federalfinancial assistance to any education program oractivity . . . is authorized and directed to effectuatethe provisions of section 1681 of this title withrespect to such program or activity by issuing rules,regulations, or orders of general applicability whichshall be consistent with achievement of theobjectives of the statute authorizing the financialassistance in connection with which the action istaken.’’).5 40 FR 24128 (June 4, 1975) (codified at 45 CFRpart 86). In 1980, Congress created the United StatesDepartment of Education. Public Law 96–88, sec.201, 93 Stat. 669, 671 (1979); Exec. Order No.12212, 45 FR 29557 (May 2, 1980). By operation oflaw, all of HEW’s determinations, rules, andregulations continued in effect and all functions ofHEW’s Office for Civil Rights, with respect toeducational programs, were transferred to theSecretary of Education. 20 U.S.C. 3441(a)(3). Theregulations implementing Title IX were recodifiedwithout substantive chan

Confidentiality and Anonymity for Complainants General Modification Suggestions General Clarification Requests Dismissal and Consolidation of Formal Complaints Section 106.45(b)(3)(i) Mandatory Dismissal of Formal Complaints Section 106.45(b)(3)(ii)–(iii) Discretionary Dismissals/