Title IX plays an important role in protecting people from sex based discrimination and harassment in educational settings. A hostile environment can interfere with a person’s ability to participate fully in school, work, or other education-related activities. Understanding what constitutes Title IX hostile environment harassment can help students, employees, and institutions recognize concerning conduct and determine which Title IX protections may apply.
What is Title IX Hostile Environment Harassment?
Title IX hostile environment harassment involves unwelcome conduct based on sex that is serious enough to interfere with a person’s equal access to an education program or activity. Under the standard included in the outline, the conduct is evaluated from the perspective of a reasonable person in the complainant’s position and must be severe, pervasive, and objectively offensive. Factors such as the complainant’s age, abilities, and the authority of the people involved may also be relevant when determining how the conduct affects the educational environment.
Gender Discrimination
Gender discrimination occurs when someone is treated differently or unfairly because of sex or gender. Within an educational environment, Discriminatory treatment can affect a person’s opportunities, participation, or ability to access programs and activities on equal terms. Title IX protections are intended to prevent discrimination from becoming a barrier to educational access.
Sexual Harassment
Sexual harassment is one form of sex-based conduct addressed under Title IX.
Three types of sex-based conduct as defined in August 2020 regulations
The outline identifies three categories of conduct under the August 2020 regulations: quid pro quo harassment; unwelcome conduct that a reasonable person would consider severe, pervasive, and objectively offensive enough to deny equal educational access; certain forms of sexual violence.
Quid pro quo harassment
Quid pro quo harassment generally involves the situation in which an educational benefit, opportunity, or consequence is connected to sexual conduct.
Unwelcome conduct that a reasonable person would find so severe, pervasive, and objectively offensive that it denies a person equal educational access
Hostile environment harassment, meanwhile, focuses on the nature and impact of unwelcome behavior and whether it effectively prevents a person from accessing educational opportunities equally.
Sexual assault (as defined in the Clery Act), dating violence, domestic violence, or stalking as defined in the Violence Against Women Act (VAWA)
The 2020 rule recognizes sexual assault under the Clery Act and dating violence, domestic violence, and stalking under VAWA as a separate category of sexual harassment. These offenses do not also have to satisfy the severe, pervasive, and objectively offensive hostile environment test. The school must still consider whether the alleged conduct falls within the rule’s education program or activity and United States requirements. [Department of Education — summary of the 2020 Title IX rule]
Sex Violence
Sex violence can also fall within conduct addressed by Title IX. The outline specifically includes sexual assault, as defined under the Clery Act, as well as dating violence, domestic violence, and stalking as defined under the Violence Against Women Act (VAWA). These behaviors can significantly affect a person’s safety and ability to participate in an educational environment.
Retaliation
Title IX Protections also extend to retaliation. Retaliation may occur when someone experiences adverse treatment because they reported discrimination or harassment, participated in a Title IX process, or otherwise exercised rights connected to Title IX. Protecting people from retaliation is important because individuals should be able to raise concerns or participate in a complaint process without being punished for doing so.
Hostile Environment
A Title IX hostile environment is created when unwelcome sex based conduct meets the applicable threshold and effectively denies a person equal access to an educational program or activity. The assessment is not based only on whether the complainant personally found the conduct upsetting. It considers whether a reasonable person in the complainant’s position would regard the behavior as severe, pervasive, and objectively offensive. This means that surrounding circumstances matter. The nature of the conduct, its seriousness, and its effect on educational access all help determine whether behavior rises to the level of a hostile environment under Title IX.
Scope and Applicability of Title IX
Title IX coverage depends on the institution’s receipt of federal financial assistance and the conduct’s connection to its education programs or activities. Its protections extend beyond students to other people interacting with the institution. Following the January 9, 2025 vacatur of the 2024 rule, the Department of Education identifies the 2020 rule as the basis for its Title IX enforcement. [Department of Education — Title IX frequently asked questions]; [Department of Education — current enforcement framework]
Applies to conduct by employees against other employees, not just students.
Its protections are not limited to interactions between students. The outline specifically notes that Title IX can also apply to contact involving employees, including contact by one employee against another.
Applies to persons in the United States.
Under the 2020 sexual harassment framework, the alleged conduct must have occurred against a person in the United States. Allegations concerning conduct outside that geographic scope must be dismissed from the formal Title IX sexual harassment process. That dismissal does not prevent the school from responding under another applicable conduct policy. [34 CFR § 106.44 — 2020 rule text, 2023 CFR edition]; [34 CFR § 106.45 — 2020 rule text, 2023 CFR edition]
Applies to education programs or activities that receive Federal financial assistance.Applies to education programs or activities that receive Federal financial assistance.
Title IX applies to education programs and activities that receive federal financial assistance.
Education Program or Activity Definition
The outline also specifies that Title IX applies to persons in the United States.
Locations, events, or circumstances under the school’s substantial control
An educational program or activity may include locations, events, or circumstances in which the school exercises substantial control.
Buildings owned or controlled by officially recognized student organizations
It can also include buildings owned or controlled by student organizations that are officially recognized by the institution.
Applies to on-campus and off-campus activities.
This means Title IX is not determined solely by whether an incident physically occurred inside a class or another traditional academic space. Title IX may apply to both on-campus and certain off-campus activities when they fall within the school’s education program or activity. For example, conduct connected to a school-sponsored event or to another environment under the institution’s substantial control may fall within its scope, even when it occurs off campus.
Schools may address sexual harassment outside Title IX’s jurisdiction.Schools may address sexual harassment outside Title IX’s jurisdiction.
At the same time, conduct that does not fall within Title IX’s jurisdiction does not necessarily have to be ignored by an educational institution. Schools may still address sexual harassment outside Title IX through other institutional policies or codes of conduct. Understanding this distinction matters because whether Title IX formally applies can depend on where the conduct occurred, its connection to the institution’s programs or activities, and the school’s level of control over the circumstances.
Reporting and Response Obligations
Educational institutions have specific responsibilities when they receive notice of potential Title IX sexual harassment. According to the outline, these responsibilities are triggered when a Title IX coordinator or another official with authority to institute corrective measures receives notice of the alleged conduct.
Actual Knowledge Trigger
A school’s obligation to respond begins when the appropriate institutional official has actual knowledge of the alleged harassment. Notice to the Title IX Coordinator can trigger these response obligations, as can notice provided to an official with authority to take corrective action on the institution’s behalf. This requirement helps establish when the institution becomes formally responsible for addressing a reported Title IX concern.
Accessible Reporting to Title IX Coordinator
A school must make its reporting route visible and available to the groups identified in the regulations. Any person may report sex discrimination or sexual harassment, including someone reporting on another person’s behalf. A report can be verbal or written, and making a report is distinct from filing a formal complaint requesting an investigation. [34 CFR § 106.8 — 2020 rule text, 2023 CFR edition]; [Department of Education — summary of the 2020 Title IX rule]
Designation of a Title IX Coordinator
Schools must designate a Title IX Coordinator and make the coordinator’s contact information available to the school community.
Notification of Title IX Coordinator’s contact information
The outline specifies that this information should be provided to students and employees, applicants for admission and employment, parents or legal guardians of K-12 students, and unions.
Students and employees
Students and employees must receive the Title IX Coordinator’s name or title, office address, email address, and telephone number. They must also receive notice of the school’s nondiscrimination policy and information about its grievance procedures, including how to report concerns and file a formal complaint. These requirements give both groups a clear route to seek help. [34 CFR § 106.8 — 2020 rule text, 2023 CFR edition]
Applicants for admission and employment
The notification requirement includes people applying to study or work at the institution. Applicants must receive the coordinator’s contact information and notice of the school’s nondiscrimination policy. The notice must explain that the prohibition extends to employment and, where the relevant Title IX admissions provisions apply, admission. [34 CFR § 106.8 — 2020 rule text, 2023 CFR edition]
Parents/legal guardians of K-12 students
Schools must provide the required coordinator contact information to parents or legal guardians of elementary and secondary school students. The 2020 rule also preserves any legal right a parent or guardian has to act on a student’s behalf, including filing a formal complaint. Acting for the student does not make the parent or guardian the complainant. [34 CFR § 106.8 — 2020 rule text, 2023 CFR edition]; [Department of Education — summary of the 2020 Title IX rule]
All unions
The regulation specifically covers unions and professional organizations that hold collective bargaining or professional agreements with the institution. The school must notify those organizations of the coordinator’s contact information and provide the required policy and grievance information. This requirement applies to organizations with those institutional agreements, not every union generally. [34 CFR § 106.8 — 2020 rule text, 2023 CFR edition]
Prominent display of contact information on website
The institution should also display contact information prominently on its website.
Methods of reporting: in person, mail, telephone, e-mail
Reports can be submitted through several methods, including in person, by mail, telephone, or email.
Reports can be made at any time.
Reports may also be made at any time, helping ensure that individuals have multiple ways to communicate a Title IX concern.
Mandatory Response Obligations: Deliberate Indifference Standard
When a school has actual knowledge of covered sexual harassment, it must respond promptly and assess what action is reasonable in the known circumstances. The response includes contacting the complainant about supportive measures and explaining how to file a formal complaint. These initial responsibilities apply even when the complainant has not requested a formal investigation. [34 CFR § 106.44 — 2020 rule text, 2023 CFR edition]
Respond promptly to Title IX sexual harassment
Once the institution must respond, it must do so promptly and in a manner that is not clearly unreasonable. The outline identifies that requirement as the deliberate indifference standard.
Response must not be clearly unreasonable
The deliberate indifference standard evaluates the school’s response based on what it knows about the situation. Schools must document the basis for concluding that their actions meet that standard and preserve educational access. If supportive measures are not provided, the school must document why that decision was not clearly unreasonable under the circumstances known to it. [34 CFR § 106.44 — 2020 rule text, 2023 CFR edition]; [34 CFR § 106.45 — 2020 rule text, 2023 CFR edition]
Offer supportive measures to the complainant
Schools must also offer supportive measures to the complainant.
Confidential contact by Title IX Coordinator
The Title IX Coordinator should confidentially contact the complainant to discuss available support measures, consider the complainant’s wishes regarding those measures, and explain the process for filing a formal complaint.
Discuss availability of supportive measures
The coordinator must explain that supportive measures are available whether or not a formal complaint is filed. The discussion should address individualized services that preserve educational access, protect safety, or deter further harassment. Such measures must meet the rule’s requirements for nonpunitive, nondisciplinary assistance that does not unreasonably burden the other party. [34 CFR § 106.44 — 2020 rule text, 2023 CFR edition]; [Department of Education — summary of the 2020 Title IX rule]
Consider complainant’s wishes
The coordinator must consider the complainant’s preferences when discussing supportive measures. The selected response must also satisfy the rule’s requirements, so considering a requested measure does not automatically require granting that particular measure. The school must assess its response in light of the known circumstances and its responsibility to preserve educational access. [34 CFR § 106.44 — 2020 rule text, 2023 CFR edition]; [Department of Education — summary of the 2020 Title IX rule]
Inform of formal complaint process
The coordinator must explain how a complainant can file a formal complaint requesting an investigation. Under the 2020 rule, this is a document or electronic submission alleging sexual harassment and identifying the complainant as its filer, or a complaint signed by the coordinator. The explanation should distinguish that process from requesting supportive measures, which does not require a formal complaint. [34 CFR § 106.44 — 2020 rule text, 2023 CFR edition]; [Department of Education — summary of the 2020 Title IX rule]
Grievance process required before disciplinary sanctions.Grievance process required before disciplinary sanctions.
When a formal complaint is filed, the institution must investigate the allegations and follow the required grievance process before imposing disciplinary sanctions.
Respect constitutional rights.
The process should respect constitutional rights and, where appropriate, the complainant’s wishes regarding an investigation.
Investigate sexual harassment allegations in formal complaints.
The school must address the allegations in a formal complaint through the required grievance process, including notice to the parties and an investigation where the allegations proceed. It must also apply the rule’s dismissal requirements when the alleged conduct, even if proved, would fall outside the covered definition or jurisdiction. A dismissal must be communicated to both parties with the reasons for it. [34 CFR § 106.45 — 2020 rule text, 2023 CFR edition]
Respect the complainant’s wishes regarding investigation unless unreasonable.Respect the complainant’s wishes regarding investigation unless unreasonable.
A complainant’s preference about whether to investigate should be respected, but it is not an absolute veto on institutional action. The Title IX Coordinator may sign a formal complaint over the complainant’s wishes when the coordinator determines that initiating an investigation is not clearly unreasonable in the known circumstances. The coordinator must remain impartial and does not become a party by signing. [Department of Education — summary of the 2020 Title IX rule]
Dismissal of allegations that don’t meet the definition of sexual harassment or occur within the school’s program.Dismissal of allegations that don’t meet the definition of sexual harassment or occur within the school’s program.
Some allegations may be dismissed from the Title IX process when they do not meet the applicable definition of sexual harassment or do not occur within the school’s covered program or activity.
Schools may address dismissed allegations under its own code of conduct.
However, dismissal under Title IX does not necessarily prevent the institution from addressing the conduct through its own code of conduct or other applicable policies.
Key Definitions in Title IX Response
Understanding several key terms can make the Title IX process easier to follow. These terms identify the people involved in a complaint, explain what constitutes a formal complaint, and describe the measures a school can take while addressing a Title IX matter.
Complainant
A complainant is the individual who is alleged to be the victim of the conduct that could constitute sexual harassment. While the complainant is the person directly affected by the alleged conduct, the outline notes that third parties can also make reports. Parents and guardians may also have legal rights to act on behalf of parties in appropriate circumstances. This distinction is important because the person who initially reports an incident is not always the same person who allegedly experienced the harassment.
Respondent
Being identified as a respondent does not establish that the alleged conduct occurred or that the person is responsible. The grievance process must presume nonresponsibility until it reaches a determination and must evaluate relevant evidence objectively. Credibility cannot be decided simply by whether someone is the respondent, complainant, or a witness. [34 CFR § 106.45 — 2020 rule text, 2023 CFR edition]
Individual reported as the perpetrator
The respondent is the individual reported as the perpetrator of the alleged conduct. During the Title IX process, the respondent is given an opportunity to participate in the grievance process and respond to the allegations made against them.
Formal Complaint
A formal complaint is a document filed by a complainant or signed by the Title IX Coordinator that alleges sexual harassment and requests that the school investigates the allegations. The outline also states that the complainant must be participating in, or attempting to participate in, the school’s educational program or activity when filing a formal complaint. The formal complaint is significant because it initiates the institution’s formal grievance and investigation process. The outline also identifies specific methods for filing a complaint and the Title IX Coordinator’s role in signing a complaint when appropriate.
Supportive Measures
Supportive measures are individualized services intended to help the people involved in a Title IX matter. They are designed to be non-punitive, non-disciplinary, and not unreasonably burdensome. Their purpose may include ensuring continued equal access to education, protecting safety, or deterring further harassment. Institutions should evaluate the reasonableness of supportive measures on a case-by-case basis. These measures let institutions address immediate needs and preserve educational access while the Title IX process is underway.
Grievance Process and Investigations
The 2020 rule establishes procedural safeguards for resolving formal sexual harassment complaints at both K-12 schools and postsecondary institutions. These include impartial personnel, notice of allegations, opportunities to present and review evidence, and a written outcome. Hearing requirements differ by institution type, but both parties must receive the protections applicable to their proceeding. [34 CFR § 106.45 — 2020 rule text, 2023 CFR edition]
General Requirements for Grievance Process
A Title IX grievance process gives schools a structured way to address formal complaints while protecting the rights of everyone involved. The process should treat the complainant and respondent equitably, evaluate evidence objectively, and ensure that those handling the case remain impartial. Schools must also treat both the complainant and the respondent equitably throughout the grievance process. If the respondent is ultimately found responsible, the school may provide appropriate remedies to the complainant. At the same time, the respondent is presumed not responsible for the alleged conduct until the process concludes. Evidence should be evaluated objectively, and title personnel must be free from conflict of interest or bias. The outline also requires appropriate training for individuals who administer the process, with training materials made publicly available. Schools should establish reasonably prompt time frames and explain the potential remedies and disciplinary sanctions that may result from the grievance process. Institutions must also identify the standard of evidence they use, whether a preponderance of the evidence or clear and convincing evidence. The grievance process should address appeal procedures, supportive measures, and the protection of privileged information. Any additional provisions the institution adopts must be applied equally when required.
Investigations
An investigation assembles and evaluates information relevant to the allegations before a responsibility decision is made. The school carries the burden of gathering sufficient evidence and must give both parties an equal opportunity to contribute. Its investigative report must fairly summarize relevant evidence and be sent to the parties and their advisors at least 10 days before the hearing or other responsibility determination. [34 CFR § 106.45 — 2020 rule text, 2023 CFR edition]
Written notice to both parties upon receipt of a formal complaint.
When a formal complaint moves forward, both parties must receive written notice.
The burden of gathering evidence remains on schools.The burden of gathering evidence remains on schools.
The school, not the complainant or respondent, is responsible for gathering evidence.
Equal opportunity for parties to present evidence.
Both parties must also have an equal opportunity to present evidence relevant to the allegations.
No restrictions on discussing allegations or gathering evidence.
Parties cannot be restricted from discussing the allegations or gathering or presenting relevant evidence.
Parties have the right to an advisor of their choice.
They may have an advisor of their choice and should receive written notice of investigation interviews, meetings, or hearings.
Written notice of investigative interviews, meetings, or hearings.
When a party is invited or expected to participate, the school must provide written notice stating the date, time, location, participants, and purpose of the interview, meeting, or hearing. The notice must arrive early enough for the party to prepare. This requirement applies throughout the investigation and grievance process, beyond the initial notice of allegations. [34 CFR § 106.45 — 2020 rule text, 2023 CFR edition]
Evidence and investigative reports provided to parties and advisors.
Evidence and investigative reports must be available to parties and their advisor as part of the process.
Dismissal of allegations not meeting Title IX definition or occurring within the school’s program.
In some circumstances, allegations may be dismissed when they do not meet the applicable Title IX definition or fall outside the school’s covered program or activity.
Discretionary dismissal options.
The outline also provides for discretionary dismissal in certain situations.
Written notice of dismissals and reasons.
When dismissal occurs, the parties must receive written notice explaining the decision and reasons behind it.
Consolidation of formal complaints.
Schools may also consolidate formal complaints when appropriate.
Protection of medical and psychological records.
During investigations, medical and psychological records receive specific protections, helping ensure that sensitive information is not improperly accessed or used during the grievance process.
Hearings
Hearings are an important part of the Title IX grievance process because they provide an opportunity to examine relevant evidence before a determination is made.
Live Hearings and Cross-Examination (Postsecondary Institutions)
The specific hearing requirements differ between secondary institutions and K2 schools.
Requirement for a live hearing.
For both secondary institutions, the outline requires a live hearing as part of the grievance process.
Advisor’s role in asking relevant questions.
During the hearing, each party’s advisor may ask the other party and witnesses relevant questions.
Cross-examination conducted directly, orally, and in real time.
Cross-examination is conducted directly, orally, and in real time.
Parties can be in separate rooms with technology.
The parties do not necessarily have to be physically present in the same room. Schools may conduct hearings with the parties in separate rooms using technology that allows everyone involved to see and hear one another.
The decision-maker determines the relevance of questions.The decision-maker determines the relevance of questions.
The decision-maker determines whether questions are relevant.
School-provided advisor if a party lacks one.
If a party does not have an advisor, the school must provide one for cross-examination.
Consequences for not submitting to cross-examination.Consequences for not submitting to cross-examination.
The process also establishes consequences when a party or witness does not submit to cross-examination.
The original 2020 restriction on relying on statements from a person who did not submit to cross-examination was vacated nationwide in 2021. The Department of Education states that otherwise permissible statements may be considered even when the speaker is not cross-examined. The remaining live hearing provisions continue to apply, including the prohibition on inferring responsibility solely from absence or refusal to answer questions. [Department of Education — August 24, 2021 court ruling update]
Flexibility in hearing format (physical or virtual).
Hearings may therefore take place in either physical or virtual format.
Audio or audiovisual recording/transcript required.Audio or audiovisual recording/transcript required.
Schools must create an audio or audiovisual recording or transcript of the live hearing to provide a formal record of the proceedings.
Hearings Optional (K-12 Schools)
Hearing requirements differ for K-12 schools. Live hearings are optional, not required.
Written questions submitted by parties.Written questions submitted by parties.
Instead, the parties may submit written questions to be asked of other parties or witnesses.
Answers provided to each party.
The answers are then provided to each party, with limited follow-up questions permitted.
Limited follow-up questions allowed.Limited follow-up questions allowed.
This approach allows relevant questions while providing a process that differs from the live hearing structure used by postsecondary institutions.
Rape Shield Protections for Complainants
Title IX hearings also include protections regarding evidence about a complainant’s prior sexual behavior.
Irrelevant questions and evidence about prior sexual behavior.
Under the Rape Shield protections identified in the outline, questions and evidence concerning prior sexual behavior are generally considered irrelevant.
Exceptions for proving other perpetrators or consent.
Limited exceptions exist, including circumstances in which the evidence may be relevant to establishing that someone other than the respondent committed the alleged conduct or to determining whether specific prior behavior between the parties is relevant to the issue of consent. These protections help the proceeding focus on evidence relevant to the allegations under consideration.
Determinations, Appeals, and Informal Resolutions
After the investigation and hearing stages, the Title IX process moves toward a determination of responsibility. Schools must follow their established standard of evidence, provide a written explanation of the outcome, and give both parties access to applicable procedures. In certain circumstances, the parties may also choose an informal resolution instead of completing the formal process.
Standard of Evidence and Written Determination
The school must use its stated evidence standard when deciding responsibility and explain the result in writing. The decision-maker must be a different person from the Title IX Coordinator and the investigator. The written determination must identify the allegations, describe the procedural steps, state the findings and conclusions, and explain the outcome and available appeal procedures. [34 CFR § 106.45 — 2020 rule text, 2023 CFR edition]
Schools must state the standard of evidence (preponderance or clear and convincing).Schools must state the standard of evidence (preponderance or clear and convincing).
Schools must clearly identify the standard of evidence used to determine responsibility. According to the outline, this may be either the preponderance-of-the-evidence standard or the clear-and-convincing-evidence standard.
Consistent standard for all formal complaints.Consistent standard for all formal complaints.
The selected standard must be applied consistently to formal complaints.
Written determination by a decision-maker.Written determination by a decision-maker.
Following the process, the decision-maker issues a written determination. This determination should also include findings of fact, conclusions regarding the conduct, the rationale for the decision, any disciplinary sanctions that were imposed on the respondent, and any remedies provided to the complainant.
Findings of fact
Findings of fact identify the factual conclusions that support the responsibility determination. They should distinguish what the decision-maker determines happened from what a party merely alleged. Those findings must result from an objective evaluation of the relevant evidence, including evidence that supports and evidence that weighs against responsibility. [34 CFR § 106.45 — 2020 rule text, 2023 CFR edition]
Conclusions about conduct
The determination must explain how the institution’s code of conduct applies to the facts it has found. This connects the factual findings to the rules governing the allegations and shows why the conduct does or does not establish responsibility. A description of events alone does not replace that required application of the conduct rules. [34 CFR § 106.45 — 2020 rule text, 2023 CFR edition]
Rationale
The written outcome must give reasons for the result on each allegation. Its explanation should connect the evidence and factual findings to the applicable standard and responsibility decision. Providing that reasoning allows both parties to understand the outcome and assess whether a permitted ground for appeal exists. [34 CFR § 106.45 — 2020 rule text, 2023 CFR edition]
Sanctions
The school’s grievance procedures must identify the possible disciplinary sanctions, either as a list or a range. If sanctions are imposed following a responsibility determination, the written outcome must identify them. Disciplinary sanctions are distinct from supportive measures, which provide assistance without serving as punishment. [34 CFR § 106.45 — 2020 rule text, 2023 CFR edition]
Remedies
When a respondent is found responsible, remedies must restore or preserve the complainant’s equal access to the school’s education program or activity. They may include services similar to supportive measures, but remedies need not avoid burdening the respondent or remain nonpunitive. The Title IX Coordinator is responsible for implementing them effectively. [34 CFR § 106.45 — 2020 rule text, 2023 CFR edition]
Simultaneous delivery of determination and appeal information to parties.
Both parties must receive their determination simultaneously. They should also receive information about their right to appeal and the procedures for doing so.
Appeals
Both parties must be offered an appeal from a responsibility determination and from dismissal of a formal complaint or an allegation. The appeal decision-maker must be different from the original decision-maker, investigator, and coordinator. Both parties must have an equal opportunity to submit a written statement, and both must receive the written appeal outcome and reasons at the same time. [34 CFR § 106.45 — 2020 rule text, 2023 CFR edition]
Both parties can appeal.
Both the complainant and respondent can appeal the determination. An appeal process gives both parties an opportunity to raise concerns about how the case was handled or how the final determination was reached.
Bases for appeal:
The outline identifies several potential bases for an appeal, including a procedural irregularity that affected the outcome, newly discovered evidence, or conflict of interest or bias involving Title IX personnel.
Procedural irregularity
A procedural irregularity is a required ground for appeal when it affected the outcome of the matter. The appeal should identify the procedural error and explain its effect on the decision, rather than relying only on disagreement with the result. The rule requires a connection between the irregularity and the outcome. [34 CFR § 106.45 — 2020 rule text, 2023 CFR edition]
Newly discovered evidence
This appeal ground concerns evidence that was not reasonably available when the responsibility determination or dismissal was made and that could affect the outcome. Evidence is not qualifying merely because a party presents it later. The relevant questions are whether it could reasonably have been obtained earlier and whether it could change the result. [34 CFR § 106.45 — 2020 rule text, 2023 CFR edition]
Conflict of interest or bias
An appeal may challenge a conflict of interest or bias involving the Title IX Coordinator, investigator, or decision-maker when it affected the outcome. The concern may involve attitudes toward complainants or respondents generally, or toward a particular party. The appeal should identify the conflict or bias and explain how it influenced the matter. [34 CFR § 106.45 — 2020 rule text, 2023 CFR edition]
Additional bases for appeal at school’s discretion.Additional bases for appeal at school’s discretion.
Schools may also establish additional grounds for appeal at their discretion.
Informal Resolution
Under the 2020 rule, a school may offer informal resolution after a formal complaint is filed and before a responsibility determination. Participation requires the parties’ voluntary written consent after notice of the allegations, process, and consequences. The school cannot use this option to resolve allegations that an employee sexually harassed a student. [34 CFR § 106.45 — 2020 rule text, 2023 CFR edition]
Options like mediation or restorative justice.
In some cases, the parties may have the option to resolve Title IX matters through an informal process, such as mediation or restorative justice.
Voluntary, informed, written consent required.Voluntary, informed, written consent required.
Participation must be voluntary and based on informed written consent.
Trained facilitators
Trained individuals should facilitate the process, and parties should not be required to waive the right to a formal investigation as a condition of participating.
No required waiver of formal investigation.
A school cannot make giving up the formal investigation and adjudication process a condition of enrollment, employment, or another protected right, and cannot compel informal resolution. Before agreeing to an informal resolution, either party may withdraw and resume the formal grievance process. A completed agreement may limit reopening the same allegations, so the required notice must explain those consequences. [34 CFR § 106.45 — 2020 rule text, 2023 CFR edition]
Right to withdraw from informal resolution.
A party also retains the right to withdraw from informal resolution.
Restrictions on informal resolution between employees and students.
The outline also identifies restrictions on using informal resolution for matters involving employees and students.
Retaliation Prohibition
Title IX prohibits retaliation against individuals for exercising their rights under the Title IX process. This protection matters because students, employees, and others should be able to report concerns or participate in proceedings without punishment or intimidation.
Express Prohibition
The retaliation prohibition applies to the institution and other people. It bars intimidation, threats, coercion, or discrimination intended to interfere with Title IX rights, or imposed because someone reported, assisted, testified, participated, or declined to participate in a covered proceeding. An individual may file a retaliation complaint through the school’s sex discrimination grievance procedures. [34 CFR § 106.71 — 2020 rule text, 2022 CFR edition]
Examples of Retaliation
Retaliation can take different forms.
Charging code of conduct violations to interfere with Title IX rights.
The outline specifically identifies charging an individual with code of conduct violations to interfere with their Title IX rights as an example of prohibited retaliation. Protecting individuals from retaliation helps ensure people can participate in the Title IX process without being discouraged from reporting or cooperating with an investigation.
Confidentiality of identities.Confidentiality of identities.
The identities of individuals involved in a Title IX matter are protected by confidentiality.
Filing retaliation complaints.
The outline also provides for filing retaliation complaints, giving individuals a way to raise concerns if they believe they experienced retaliation related to the Title IX process.
First Amendment protections.
Exercising First Amendment rights does not itself constitute prohibited retaliation. Title IX also does not require institutions to restrict constitutional rights that otherwise protect speech from government action. Schools must distinguish protected expression from threats or other actionable conduct when deciding how to respond to a reported concern. [34 CFR § 106.71 — 2020 rule text, 2022 CFR edition]; [Department of Education — Title IX frequently asked questions]
Materially false statements made in bad faith are not protected
At the same time, Title IX requirements must respect First Amendment protections. The outline further notes that materially false statements made in bad faith are not protected. These protections help preserve the integrity of the Title IX process by allowing people to exercise their rights, maintaining safeguards against retaliation and intentional misuse of the complaint process.