This is part one of a series examining the most topical changes contained in the new Title IX regulations applicable to higher education released by the U.S. Department of Education on April 19, 2024. Changes applicable only to K–12 are not included in this analysis.

The long-awaited Title IX regulations have arrived, and for postsecondary institutions, there are welcome changes and clarifications. Equity is the order of the day, and there are additional protections for parties and witnesses. A new section applying solely to postsecondary institutions, § 106.46, “Grievance procedures for the prompt and equitable resolution of complaints of sex-based harassment involving student complainants or student respondents at postsecondary institutions,” has been added, live hearings are no longer required, and privacy and disability protections are strengthened.

Quick Hits

• Title IX final regulations addressing grievance procedures for the resolution of complaints of sex-based harassment no longer require live hearings.
• Title IX coordinators or investigators can be decisionmakers, as long as they are properly trained and without bias or conflicts of interest.
• The new grievance procedures specify when even relevant evidence can be excluded.
• The final rules take effect on August 1, 2024.

This article addresses § 106.45, “Grievance procedures for the prompt and equitable resolution of complaints of sex discrimination,” and § 106.46, “Grievance procedures for the prompt and equitable resolution of complaints of sex-based harassment involving student complainants or student respondents at postsecondary institutions.”

A summary of changes follows.

Grievance Procedures for Resolution of Complaints of Sex Discrimination

Under the final regulations, all institutions must adopt grievance procedures that incorporate the requirements of the new 34 CFR § 106.45, which include the following:

Title Change

The title is changed from “grievance process” to “grievance procedures” for the prompt and equitable resolution of complaints of “sex discrimination” instead of sexual harassment.

Written Procedures Expressly Required

The first paragraph, which is now (a)(1), reads that grievance procedures must be in writing. It also clarifies that requirements related to respondents only apply to sex discrimination complaints alleging that a person violated the institution’s prohibition against sex discrimination. A new provision reads, “When a sex discrimination complaint alleges that a recipient’s policy or practice discriminates on the basis of sex, the recipient is not considered a respondent.” In other words, there is no requirement that the recipient be provided the rights of a respondent.

Individuals Entitled to Make a Complaint

The individuals who are entitled to make a complaint of sex discrimination, including sex-based harassment, include the Title IX coordinator, the complainant, and the complainant’s parent, guardian, or other authorized legal representative. Complaints of sex discrimination other than sex-based harassment may be initiated by the complainant, Title IX coordinator, any student or employee, or any person other than a student or employee who was participating in or attempting to participate in the institution’s education program or activity at the time the alleged sex discrimination occurred.

Single Investigator Model Redeemed

The decisionmaker can be the same person as the Title IX coordinator or investigator, as long as the institution ensures that there is no conflict of interest or bias.

Timeframes

Institutions must “establish reasonably prompt timeframes for the major stages of the grievance procedures” (emphasis added) (instead of a timeframe for the conclusion of the investigation) and “allow reasonable extensions on a case-by-case basis for good cause with notice to the parties that includes the reason for the delay.” Examples of “major stages” include an evaluation, investigation, determination, and appeal, if any.

Privacy Protections for Parties and Witnesses

The new procedures require institutions “to take reasonable steps to protect the privacy of the parties and witnesses.” These protections cannot impair the parties’ ability to “obtain and present evidence”; “speak[] to witnesses”; “consult with their family members, confidential resources, or advisors”; “or otherwise prepare for or participate in the grievance procedures.”

The institution “must take reasonable steps to prevent and address the parties’ unauthorized disclosure of information and evidence obtained solely through the grievance procedures.” The rule further provides that “disclosure of such information and evidence for purposes of administrative proceedings or litigation related to the complaint of sex discrimination are authorized.”

In addition, under § 106.44(j), “Prohibited disclosures of personally identifiable information,” the institution cannot “disclose personally identifiable information obtained in the course of complying” with Title IX without prior written consent.

Evidentiary Requirements and Exclusions of Evidence

In addition to the preponderance of the evidence standard, the new rules require an objective evaluation of all relevant exculpatory and inculpatory evidence (defined in § 106.2), prohibit credibility determinations based on whether a person is a complainant, respondent, or witness, and clarify the list of applicable privileges by excluding the following types of evidence—and questions seeking that evidence—even if relevant: evidence that is privileged under state or federal law or disclosed to a confidential employee unless the privilege/confidentiality is waived; treatment records of a party or witness “made or maintained by a physician, psychologist, or other recognized professional or paraprofessional” unless privilege is waived; “[e]vidence that relates to the complainant’s sexual interests or prior sexual conduct, unless … offered to prove that someone other than the respondent committed the alleged conduct,” or evidence offered “to prove consent to the alleged sex-based harassment.” However, alone, “prior consensual sexual conduct between the complainant and respondent” continues to not demonstrate consent or preclude a finding of sex-based harassment. There must be a process for assessing credibility when credibility is disputed and relevant.

The burden is on the institution—not on the parties—to conduct an investigation that gathers sufficient evidence to determine whether sex discrimination occurred.

An institution can consolidate complaints against more than one respondent, by more than one complainant against one or more respondents, or by one party against another party when the allegations of sex discrimination arise out of the same facts or circumstances. If one of the complaints to be consolidated is a complaint of sex-based harassment involving a student complainant or student respondent at a postsecondary institution, the grievance procedures for investigating and resolving the consolidated complaint must comply with the requirements of both § 106.45 and § 106.46 “Additional requirements for grievance procedures for sex-based harassment complaints involving a postsecondary student.”

If “clear and convincing evidence” is the evidentiary standard used “in all other comparable proceedings,” that standard can be used.

Complaints to Which Overlapping Policies Apply

Under § 106.45(b)(8), “if a recipient adopts grievance procedures that apply to the resolution” of only some complaints, “complaints articulate consistent principles for how the recipient will determine which procedures apply.”

When a Complaint Can Be Dismissed

The institution is allowed to dismiss a complaint of sex discrimination under § 106.45 (and § 106.46) for the following reasons: “after taking reasonable steps,” the institution “is unable to identify the respondent”; “[t]he respondent is not participating in the [institution’s] education program or activity and is not employed by the [institution]”; “[t]he complainant voluntarily withdraws any or all of the allegations in the complaint, the Title IX Coordinator declines to initiate a complaint …, and the [institution] determines that, without the complainant’s withdrawn allegations,” even if true, the remaining conduct alleged in the complaint “would not constitute sex discrimination”; and “the conduct alleged in the complaint, even if proven, would not constitute sex discrimination.”

Before dismissing the complaint, the institution must attempt “to clarify the allegations with the complainant,” and “[u]pon dismissal, … must promptly notify the complainant of the basis for the dismissal.” The rule also provides that “[i]f the dismissal occurs after the respondent has been notified of the allegations,” then the respondent must be notified of the dismissal and the basis for the same.

Appeal of the Dismissal

The institution must allow the complainant to appeal the dismissal of a complaint. If the dismissal occurs after the respondent has been notified of the allegations, the respondent must also be notified of the complainant’s right to appeal. The decisionmaker for the appeal must be someone who had no part in the investigation of the allegations or decision to dismiss the complaint. The parties must have an equal opportunity to make a statement in support of or challenging the dismissal, and received notification of the result of the appeal and its rationale(s). Supportive measures must be offered to the complainant and if the respondent has been notified of the allegations, to the respondent, as appropriate.

Decisionmakers Are Allowed to Question Parties and Witnesses

The institution must allow a decisionmaker to question parties and witnesses to assess credibility if credibility “is both in dispute and relevant to evaluating one or more allegations of sex discrimination.”

Determination of Responsibility

The Title IX coordinator must “[n]otify the parties in writing of the determination whether sex discrimination occurred[,] … including the rationale for such determination, and the procedures” and, if applicable, bases for the parties to appeal.

If a determination that sex discrimination occurred is made, “as appropriate,” the policy must

require the Title IX coordinator to coordinate remedies for a complainant and other persons whose offices to an education program or activity was denied or limited due to sex discrimination, coordinate any disciplinary sanctions, notify the complainant “of any disciplinary sanctions,” and “take other appropriate prompt and effective steps to ensure that sex discrimination does not continue or recur.”

Appeal of Determination

The institution “must offer the parties an appeal process that, at a minimum, is the same as it offers in all other comparable proceedings, if any, including proceedings relating to other discrimination complaints.” In addition, “[f]or a complaint of sex-based harassment involving a student complainant or student respondent, a postsecondary institution must also offer an appeal on the bases in § 106.46(i)(1).”

Limited Prohibition on Disciplinary Action

The institution’s policy may not allow “discipline of a party, witness, or others participating in a recipient’s grievance procedures for making a false statement or for engaging in consensual sexual conduct based solely on the recipient’s determination whether sex discrimination occurred.”

Hearings

Nearlyevery reference to a hearing in the current § 106.45 has been stricken, including “(6) Hearings.”

Grievance Procedures at Postsecondary Institutions

Written Procedures

A postsecondary institution’s written grievance procedures must include provisions that incorporate the requirements of § 106.45 as well as those outlined in this section.

Student and/or Employee Complainants

“When a complainant or respondent is both a student and an employee, … the institution must make a fact-specific inquiry to determine whether the requirements” of § 106.46 apply. In doing so, it must, “at a minimum, consider the party’s primary relationship with the institution and “whether the alleged sex-based harassment occurred while performing employment-related work.”

Requirements

First, the institution must provide written notice to any known parties.

• The notice must be given with enough time for the parties “to prepare a response before any initial interview.” “The written notice must include all required information under § 106.45(c)(1)(i) through (iii)”; note that “[t]he respondent is presumed not responsible for the alleged sex-based harassment and “the parties will have an opportunity to present relevant and not otherwise impermissible evidence to a trained, impartial decisionmaker”; and inform parties that “they may have an advisor of their choice,” they will be given “an equal opportunity to access the relevant and not otherwise impermissible evidence” or an investigatory report; and the institution “prohibits knowingly making false statements” (if applicable).
• If the institution expands the scope of its investigation into allegations of sex-based harassment, the institution must provide written notice of the additional allegations.
• An institution may “reasonably delay” providing written notification when reasonable safety concerns exist.
• When dismissing a complaint, the institution must provide written notice and the basis for the dismissal simultaneously to the parties, “except if the dismissal occurs before the respondent has been notified of the allegations.” In that case, the institution must provide written notice only to the complainant. A dismissal based on a complainant’s withdrawal must be in writing.
• When investigating, an institution must provide written notice “of all meetings or proceedings with sufficient time for the party to prepare to participate”; the opportunity for each party to be accompanied by an advisor of their choice as well as equal restrictions relating to the extent an advisor may participate; the opportunity to be accompanied by persons other than advisors; a “reasonable extension of timeframes”; and equal opportunity to access evidence or investigative report summarizing the evidence, including a “reasonable opportunity” to review and respond to the evidence or investigative report prior to a determination of whether sex-based harassment has occurred. The institution is not required, but may permit, the parties to present expert witnesses.

Process

Institutions must provide a process that allows the decisionmaker to question parties and witnesses to adequately assess credibility, if in dispute and relevant to the allegations.

• If the institution does not conduct a live hearing, the process must allow the investigator or decisionmaker to ask questions during individual meetings with a witness or party; allow each party to propose questions to the investigator or decisionmaker to ask in individual meetings; and provide each party with an audio or audiovisual recording or transcript with sufficient time to allow the party to propose follow-up questions.
• If the institution is conducting a live hearing, the process must allow the decisionmaker to ask questions and either allow each party to propose additional questions to be asked by the decisionmaker or allow each party’s advisor to ask the party or witness questions.
• If a party does not have an advisor, the institution must provide the party with an advisor of the institution’s choosing for purposes of questioning, free of charge to the party. The decisionmaker must determine whether a proposed question is relevant and not otherwise impermissible before posing the question and must explain any decision to exclude the question as not relevant or otherwise impermissible. Parties must be allowed to address any question deemed to be irrelevant or not otherwise permissible. Decisionmakers may choose to play less or no weight upon statements by parties or witnesses who refuse to answer questions deemed relevant and not impermissible. But the decisionmaker may not draw an inference as to whether the discrimination occurred based solely on the answer.
• An institution is not required to provide for a live hearing. If a live hearing is conducted, the institution may permit the parties to be physically present in the same location. An institution may decide, or upon request by either party, to permit the parties to be in separate locations using technology to conduct the live hearing. An institution “must create an audio or audiovisual recording or transcript of any live hearing and make it available to the parties for inspection and review.”
• An institution must provide the decision in writing to the parties simultaneously.
• The written decision must include a description of the allegations; policies and procedures used to make a decision; evaluation of the relevant and not otherwise impermissible evidence; any disciplinary sanctions to be imposed on the respondent; any additional remedies to be provided to the complainant; and procedures for the parties to appeal.
• The decision becomes final on the date that the institution provides written notice of the appeal or “the date on which an appeal would no longer be considered timely.”
• A party may appeal on the following grounds: “[p]rocedural irregularity that would change the outcome”; new evidence “that was not reasonably available when the determination was made and would change the outcome; and the existence of a conflict of interest. Other criteria may be available by an institution, provided offered to both parties.
• An institution may offer an informal resolution to the parties and, if doing so, must do so in writing in compliance with the provisions of § 106.44(k)(3).

Conclusion

The final regulations are effective on August 1, 2024, and apply to complaints of sex discrimination regarding alleged conduct that occurs on or after that date.

These regulations are currently only available in an unofficial version. In addition, the department has released a fact sheet, a summary of the major provisions of the final regulations, and a resource for drafting Title IX nondiscrimination policies, notices of nondiscrimination, and grievance procedures.