ASCA's Title IX Comments

ASCA submitted student conduct administration-specific comments and cosigned onto NASPA's representation of student affairs overarching thoughts to the U.S. Department of Education on the proposed revisions to the Title IX regulations. Read the comments here.
Dear ASCA Members,
As you likely know, ASCA submitted student conduct administration-specific comments and cosigned onto NASPA's representation of student affairs overarching thoughts to the U.S. Department of Education on the proposed revisions to the Title IX regulations. As an association, ASCA sought to educate our members about the changes and collect your perspectives as we shaped our submission. We offered free webinars about the regulations (presented by Grand River Solutions)  an online survey of your concerns, and a facilitated dialogue to discuss our draft response.The task force appointed by President Bryant took the lead in shaping these sessions and crafting this Association's comments. 
We have a number of people to thank for their offering their time and talents to this important work. We appreciate our members for their input, Grand Rapids for representing, and the task force, led by Dr. Brian Glick, for crafting this document that represents the quality and thoughtfulness of the Association and its members. You can find the recorded webinars on the ASCA webpage after you log into your account and view the webinars in your My Profile section of the webpage. We are pleased to share with you a copy of the comments that were submitted on behalf of our association. If you have any questions or would like further information about the comments, please contact any member of the ASCA NPRM task force.
Patience Bryant, Ph.D.                             Karen D. Boyd, Ph.D.
President                                                   Interim Executive Director
or read the comments below

Introduction to ASCA
The Association for Student Conduct Administration (ASCA) is proud to serve almost 2200+members at over 1000 institutions from 50 states and other countries in addition to the US. Our membership includes student conduct administrators, deans of students, diversity, equity, and inclusion (DEI) educators, fraternity and sorority advisors, residence hall administrators, sexual and academic misconduct investigators, faculty researching relevant topics, senior student affairs officers, and other conduct-adjacent professionals.
Our members are decision-makers and leaders of educational policy development and implementation. They lead institutional processes, not criminal processes, that examine allegations of individual and organizational violations of a college's and/or organization's academic and non-academic behavioral expectations of its students. These are administrative processes designed to resolve disruption(s) within an educational community; and as such provide equal rights to all parties involved. As such, they are protectors of the institution's learning goals and its' individual and campus-wide student-institution relationship(s). They provide programming, services, and research that proactively and reactively facilitate self-authored personally and socially responsible leadership development and decisions. The Association empowers its members to cultivate and effectively administer affirmational, inclusive, equitable, and restorative college student conduct systems and campus environments that ethically comply with legal requirements.
The purpose of these comments is to offer the Department of Education recommendations emerging from the experiential wisdom of the professional practitioners who regularly implement these processes in responding to university and college incidents involving students. Our membership, more than most, understand what makes them effective and how to mitigate the negative impacts experienced by all who participate in these processes. These comments are designed to achieve those goals.

Contextual Considerations
Higher education student conduct processes are educational administrative decision-making processes, not criminal processes. The General Order on Judicial Standards of Procedure and Substance in Review of Student Discipline in Tax-Supported Institutions of Higher Education of 1968 stated,
“The discipline of students in the educational community, is in all but the case of irrevocable expulsion, a part of the teaching process. In the case of irrevocable expulsion for misconduct, the process is not punitive or deterrent in the criminal law sense, but the process is rather the determination that the student is unqualified to continue as a member of the educational community...The attempted analogy of student discipline to criminal proceedings against adults and juveniles is not sound” (District Court, W.D. Mo, 1968).
Student conduct processes, including those addressing policy issues of sexual harassment and discrimination, exist to determine if an institution's policy has been violated. They do not determine if a person has committed a crime. There are behaviors, such as drug dealing, that are also crimes that the institution adjudicates to determine if a policy has been violated, but it is important to note that the institution is not making a decision that has legal consequences in these instances. They are deciding as to whether a student remains qualified to continue as a member of the educational community considering a violation of the institution's policies and what, if anything, the institution should do to assist the student in learning how to remain or return to good standing with the college or university.

The comments below relate to the indicated section of the proposed regulation.
Definitions (§106.2)
1. Complainant means-(1) a student or employee who is alleged to have been subjected to conduct that could constitute sex discrimination under Title IX; or (2) a person other than a student or employee who is alleged to have been subjected to conduct that could constitute sex discrimination under Title IX and who was participating or attempting to participate in the recipient's education program or activity when the alleged sex discrimination occurred.
COMMENT-The proposed regulations provide two similar definitions for the same word. Does it make more sense to simplify the definition of “complainant” to “any person who is alleged to be subjected to conduct that could constitute sex discrimination under Title IX of the Education Amendments of 1972, as amended while participating or attempting to participate in the recipient's education program or activity when the alleged sex discrimination occurred.”
2. Parental Status, as used in §§ 106.21(c)(2)(i), 106.37(a)(3), 106.40(a), and 106.57(a)(1) means the status of a person who, with respect to another person is under the age of 18 or who is 18 or older but is incapable of self-care because of a physical or mental disability, is…
(7)- “Actively seeking legal custody, guardianship, visitation, or adoption of such a person”
COMMENT-It is impossible to know the relationship between the minor and the person in this status, however, if the adult in this situation has not been awarded custody by a court of competent jurisdiction, should this information be released to the “adult” in this case?
There are concerns about the ability of an institution K-12 institution to share information with a person who is not the legal guardian or parent of a child. This would open a slew of custody battle issues that might slow things down. There are methods to allow students to share information with those that might not be legal guardians.
3. Peer retaliation- “means retaliation by a student against another student.”
COMMENT-Should this definition be expanded to encompass employees, something to the effect of “means retaliation by a person against another person.”
4. Relevant-” means related to the allegations of sex discrimination under investigation as part of the grievance procedures under § 106.45, and if applicable §106.46. Questions are relevant when they seek evidence that may aid in showing whether the alleged sex discrimination occurred, and evidence is relevant when it may aid a decisionmaker in determining whether the alleged sex discrimination occurred.
COMMENT-Since it is established that educational institutions do not operate as a court of law (codified in “The General Order on Student Discipline at Tax-supported Institutions” (45 F.R.D. 133 CFR (1968), Dixon v. Alabama (294 F. 2d 150 (5th Cir 1961), and Goss et al. v. Lopez (419
U.S. 565 (1975)), can the word “information” be substituted for the word “evidence” in the above definition. Many, if not all, institutional grievance procedures contain a statement that indicates that the formal rules of evidence (Federal Rules of evidence) do not apply in the process. Using the word “evidence” in the definition is antithetical to resolution procedures and may set up a conflict with the procedures used by institutions to resolve complaints. The use of the word “evidence” may confuse the participants and is contrary to established case law and the practice of student conduct resolution.
COMENT- The Association for Student Conduct Administration supports a federal definition of the word “student” as long as it is consistent with the definition of “student” as defined by the Family Educational Rights and Privacy Act of 1974, as amended. This is especially so because of the diversity of our institutions. More importantly, it is inconsistent with the approach of other legislation, and this may begin a cavalcade of legislative impacts.
Designation of a Coordinator and Policy (§106.8)
5. § 106.8 Designation of coordinator, adoption and publication of nondiscrimination policy and grievance procedures, notice of nondiscrimination, training, and recordkeeping. (a) Designation of a Title IX Coordinator. — (1) Title IX Coordinator. Each recipient must designate and authorize at least one employee, referred to herein as the Title IX Coordinator, to coordinate its efforts to comply with its responsibilities under this part.
COMMENT- When the department states that” Each recipient must designate and authorize at least one employee, referred to herein as the Title IX Coordinator, to coordinate its efforts to comply with its responsibilities under this part.” Does the designated Title IX Coordinator that is authorized by the recipient have to be an employee of the recipient's or can the role of the designated be an external employee of the recipient? Or Can the Title IX Coordinator be an external employee?
Effect of Requirements (§106.6)
§106.6(b) and §106.6(h)
6. §106.6(b) Effect of State or local law or other requirements. The obligation to comply with this part is not obviated or alleviated by any State or local law or other requirement. Nothing in this part would preempt a State or local law that does not conflict with this part and that provides greater protections against sex discrimination.
7. §106.6(h) deleted
COMMENT-What parameters should recipients utilize when there are enacted state laws that directly conflict with aspects of the NPRM if the NPRM is unaltered and published as the Final Rule, specifically, as it relates to gender identity and transgender individuals? What actions should recipients take when there is pending litigation that enjoins the Department from enforcing the Rule in specific states?
Scope (§106.10)
8. §106.10 Discrimination based on sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.
COMMENT-The addition of pregnancy or related conditions, as well as sexual orientation and gender identity, are welcome additions to the provisions of Title IX of the Education Amendments of 1972. The additional application of the provisions will help to make institutions, both primary and secondary, as well as postsecondary institutions more inclusive environments.
Application (§106.11)
9. §106.11-Except as provided in this subpart, this part applies to every recipient and to all sex discrimination occurring under a recipient's education program or activity in the United States. For purposes of this section, conduct that occurs under a recipient's education program or activity includes but is not limited to conduct that occurs in a building owned or controlled by a student organization that is officially recognized by a postsecondary institution, and conduct that is subject to the recipient's disciplinary authority. A recipient has an obligation to address a sex-based hostile environment under its education program or activity, even if the sex-based harassment contributing to the hostile environment occurred outside the recipient's education or activity or outside the United States.
1. To clarify, the provisions of these regulations apply if either (i) the violation occurs under the recipient's program or activity, or (ii) it's against a person in the United States?
2. Are U.S.-based postsecondary institutions with global satellite campuses obligated to investigate and respond to sex-based discrimination complaints arising from conduct committed on non-U.S. soil?
3. Do the Title IX regulations apply if the allegation does not contribute to a hostile environment? For example, an American student who is studying abroad sexually assaults a local resident who does not attend the university. Is the university still required to investigate and respond to the matter if no complaint is filed by the victim? We know that even if this behavior occurs in another country, the ramifications are present when the student returns to U.S. soil. We support the expansion of the application in so much that it will help to remedy the effects of the harassment and allow recipients to work to prevent its recurrence.
4. We understand that this will require institutions to ensure that institutional procedures and policies are clearly communicated and followed through by the international study programs or the department that handles international student admissions. This regulation would also impose requirements on "host" institutions (non-US-based) which would be obligated to provide information to the U.S.-based institution. Is it the prerogative of the Department to have non-U.S.-based institutions investigate, and act against a U.S. student in compliance with these proposed regulations? It is not within the Department of Education to impose the enforcement of U.S. regulations outside the United States and its territories and protectorates.
5. Title IX needs to be expanded off US soil if it involves an educationally controlled activity. The impact of a Title IX violation absolutely affects a student's educational progress, especially if a student is paying for study abroad at a university that cannot provide them protections under Title IX. This is important if the respondent is also a university student, and often affects the resources available to a complainant.
Admissions (§106.15/§106.21)
10. §106.21(c) Parental, family, or marital status; pregnancy or related conditions. In determining whether a person satisfies any policy or criterion for admission, or in making any offer of admission, a recipient to which this subpart applies: ...
COMMENT-The expansion of Title IX protections to pregnancy and related conditions related to admission will allow for a more inclusive educational environment. Many if not most institutions are providing fields for students to input descriptors for gender identity as an option, not as a requirement.
Parental, family, or marital status; pregnancy or related conditions (§106.40)
11. Discrimination Based on Pregnancy or Related Conditions (Proposed §§ 106.2, 106.21(c), 106.40, 106.57) The proposed regulations would clarify that recipients must protect students and employees from discrimination based on pregnancy or related conditions (defined in proposed § 106.2), including by providing reasonable modifications for students, (proposed § 106.40(b)(3)(ii) and (b)(4)), reasonable break time for employees for lactation (proposed § 106.57(e)(1)), and lactation space for both students and employees (proposed §§ 106.40(b)(3)(iv) and 106.57(e)(2)). The proposed regulations would also modernize and clarify Title IX's longstanding prohibition against treating parents differently on the basis of sex, including by defining “parental status” to include, e.g., adoptive or stepparents, or legal guardians). (Proposed § 106.2) Under the proposed regulations, a recipient would be required ensure that when a student (or a student's parent, guardian, or authorized legal representative) tells a recipient's employee of the student's pregnancy or related conditions, the employee must provide information on how to contact the Title IX Coordinator for further assistance. (Proposed § 106.40(b)(2)). Once a student or the student's representative notifies the Title IX Coordinator, the Title IX Coordinator must: • Provide the student with the option of individualized, reasonable modifications as needed to prevent discrimination and ensure equal access to the recipient's education program or activity. (Proposed § 106.40(b)(3)(ii) and (b)(4)) • Allow the student a voluntary leave of absence for medical reasons and reinstatement upon return. (Proposed § 106.40(b)(3)(iii)) • Provide the student a clean, private space for lactation. (Proposed § 106.40(b)(3)(iv)) A recipient would be required to provide its employees with reasonable break time for lactation, as well as a clean and private lactation space. (Proposed § 106.57(e)(1)-(2))
COMMENT-It would be helpful for the Department of Education to clearly define what is meant by “parent” as it relates to pregnancy. It sounds as though the proposed regulations are expanding on what is meant by “parent” and extending the definition to that of anyone who is a parent. It would also be good to know how many lactation spaces are required. Or if one lactation space on a campus is sufficient.
Action by a recipient to operate its education program or activity free from sex discrimination (§106.44)
12. §106.44 Action by a recipient to operate its education program or activity free from sex discrimination…
The COMMENT-The requirement includes provisions that the Title IX Coordinator “monitor barriers to reporting…” and take reasonably calculated steps to address the barriers. Will the Department require the Title IX Coordinator to keep a log of barriers and the corrective action taken to reduce the barrier?
13. §106.44(e) Public Awareness Events-"When a postsecondary institution's Title IX Coordinator is notified of information about conduct that may constitute sex-based harassment under Title IX that was provided by a person during a public event held on the postsecondary institution's campus or through an online platform sponsored by a postsecondary institution to raise awareness about sex-based harassment associated with a postsecondary institution's education program or activity, the postsecondary institution is not obligated to act in response to this information under this section, section 106.45 or section 106.46, unless the information reveals an immediate and serious threat to the health or safety of students or other persons in the postsecondary institution's community. However, in all cases the postsecondary institution must use this information to inform its efforts to prevent sex-based harassment, including by providing tailored trainings to address alleged sex-based harassment in a particular part of its education program or activity or at a specific location when information indicates there may be multiple incidents of sex-based harassment.” COMMENT-The proposed regulations clearly articulate that statements made at such events as take back the night are exempt from the required reporting except for "immediate and serious threat to the health or safety of students or other persons”. We consider immediate and serious threats to be an institutional obligation to attempt to prevent and therefore do not support removing the obligation for student employees to be responsible employees in that situation. We do believe that we, as a profession, should encourage campuses to create training that helps student employees to understand when something is clear and serious threat instead of a blanket “they are responsible employees” in all situations.
Grievance procedures for the prompt and equitable resolution of complaints of sex discrimination (§106.45)
Proposed § 106.45(a)(1) and §106.45(b)(4):
14. §106.45(a)(1) General. For purposes of addressing complaints of sex discrimination, a recipient's prompt and equitable grievance procedures must be in writing and include provisions that incorporate the requirements of this section. The requirements related to a respondent apply only to sex discrimination complaints alleging that a person violated the recipient's prohibition on sex discrimination. When a sex discrimination complaint alleges that a recipient's policy or practice discriminates on the basis of sex, the recipient is not considered a respondent.
§106.45(b)(4) Establish reasonably prompt timeframes for the major stages of the grievance procedures, including a process that allows for the reasonable extension of timeframes on a case-by-case basis for good cause with notice to the parties that includes the reason for the delay. Major stages include, for example, evaluation (i.e., the recipient's determination of whether to dismiss or investigate the complaint of sex discrimination); investigation, determination; and appeal, if any.
COMMENT-Is there a definition of what the Department considers to be “prompt”? The 2011 Dear Colleague Letter and the 2020 Final Rule differed greatly on this as it relates to the parameters to complete a grievance procedure. Referring to §106.45(b)(4), an overall definition of “prompt” or “reasonably prompt” will assist recipients in their determination of timeframes for the major stages of the grievance procedure. The removal of the examples of good cause for the extension of the timeframe is a good change as it will provide each recipient with the ability
to assess these on an individual case basis and not generalize about all grievance procedures for all recipients.
15. §106.45(b)(2): Require that any person designated as a Title IX Coordinator, investigator, or decisionmaker not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent. The decisionmaker may be the same person as the Title IX Coordinator or investigator.
COMMENT- While this may aid institutions that are under-resourced, the alignment of multiple roles under one individual may also cause an unnecessary delay in the resolution of a process if it is determined that the individual serving in multiple roles did have a conflict of interest or bias. The separation of the individuals within varying roles provides a grievance process “checkpoints” where a process may be referred to if necessary. Specifically, if there is a conflict of interest or bias determined on appeal by a decisionmaker, then the process can be remanded to a new hearing. If the conflict of interest or bias is determined to be found with a decisionmaker who also served as the investigator, then the entire incident would have to be remanded to a new investigation.
16. §106.45(b)(5): Take reasonable steps to protect the privacy of the parties and witnesses during the pendency of a recipient's grievance procedures, provided that the steps do not restrict the ability of the parties to obtain and present evidence, including speaking to witnesses, subject to §106.71; consult with a family member, confidential resource, or advisor; prepare for a hearing, if one is offered; or otherwise defend their interests;
COMMENT-While there are parameters provided to ensure that recipients are not restricting a party's ability to discuss the allegations under investigation, there are concerns with the impact of using social media to discuss the procedure and the allegations, as well as potentially harass a party. Where would restrictions on this latter discussion of the allegations under investigation conflict with a party's First Amendment right? If one party posts on a social media platform that they (as Party A) are in an investigation with Party B, what obligations would recipients have to respond to ensure privacy as discussed in this section? Would this be tantamount to the institution retaliating against one or both of the parties? Is the Department of Education proposing that the parties be asked to sign a confidentiality agreement regarding their participation in the investigation? We know there is judicial guidance regarding students' rights to expression. Judicial guidance suggests that a required confidentiality agreement is tantamount to a “gag order” which is prohibited.
17. §106.45(c): Notice of Allegations: Upon initiation of the recipient's grievance procedures, a recipient must provide notice of the allegations to the parties whose identities are known…
COMMENT-The requirement to include a statement in the notice regarding the prohibition of retaliation is a good change as it will inform parties about what retaliation is and to not engage in it from the onset of the procedure. Affording recipients, the ability to provide a Notice of Allegations either orally or in writing is concerning. Having a written Notice of Allegations that is issued to the parties simultaneously provides transparency and consistency in a process. What does the Department recommend a recipient do to ensure simultaneous communication with parties if a Notice of Allegations is provided orally? Removing the requirement that a recipient dismiss a complaint when the conduct alleged did not occur in the recipient's education program or activity or against a person in the United States is a good change as this will allow recipients to respond to and address matters that have the potential to deny or limit a person's ability to
participate in or benefit from the recipient's education program or activity. The removal of required dismissals and incorporating dismissals as permissive in conjunction with the requirement that recipients provide supportive measures to the parties are changes that could aid recipients to equitably do their work of stopping, remedying, and preventing sex discrimination in the future. The NPRM changes the term “enrolled in” to “participating in” regarding respondents and their status with the recipient that may permit a dismissal of a complaint. In the context of this change, it is discussed that a procedure may move forward if it is determined that a respondent is still participating in the recipient's activities, such as attending school-related events. Is the ED recommending that a recipient provide an overall restriction that a respondent not be permitted to attend institutional events (such as concerts, athletics, etc.)?
18. §106.45(f)(1)(ii): Evaluating allegations and assessing credibility
COMMENT- We seek further information and clarity on what methods can be used to assess credibility in hearings. We also advocate emphasis on requiring advisor cross-examination in live or virtual hearings. This is the only clear way to assure complainants and respondents get to assess credibility without a decisionmaker deciding what questions cannot be asked. Both parties in an investigation need to have the opportunity to ask these questions, which are often uncomfortable for all parties because assessing credibility and questioning information is important. It's important for complainants to be credible in reporting and it's important for respondents to be credible in their presentation of a defense. It's not an issue for one side, it's an equitable way to ensure both parties receive full rights in the investigation process.
19. §106.45(f)(4): Provide each party with a description of the evidence that is relevant to the allegations of sex discrimination and not otherwise impermissible, as well as a reasonable opportunity to respond.
COMMENT-The NPRM would require a recipient to provide each party with a description of the evidence that is relevant to the allegations of sex discrimination and not otherwise impermissible either orally or in writing and not necessarily provide the evidence for review. What does the ED recommend if this description is provided orally and there is a misrepresentation of the evidence to the parties? Should parties still have the ability to review the evidence for themselves? We suggest replacing the word “evidence” with the word “information,” as referenced previously in our comments.
20. §106.45(h): Determination of whether or not sex-based harassment occurred
COMMENT-The return of the single investigator model provides flexibility for the institution. Given the educational nature of the proceedings, sometimes a single investigator/decision maker may serve that goal well, while other circumstances may be better suited to a hearing. The institution should make that determination with the educational needs of the students in mind.
21. §106.45(h)(1): Use the preponderance of the evidence standard of proof to determine whether sex discrimination occurred, unless the recipient uses the clear and convincing standard of proof in all other comparable proceedings, including proceedings relating to other discrimination complaints, in which case the recipient may elect to use that standard of proof in determining whether sex discrimination occurred. Both standards of proof require the decisionmaker to evaluate relevant evidence for its persuasiveness; if the decisionmaker is not persuaded under the applicable standard by the evidence that
sex discrimination occurred, whatever the quantity of the evidence is, the decisionmaker should not determine that sex discrimination occurred.
COMMENT- There is a concern that having two standards of evidence for different types of proceedings may cause confusion and frustration. The overwhelming majority of postsecondary institutions use the preponderance of the evidence standard for the resolution of non-sex discrimination incidents. We advocate for one standard of evidence (preponderance) to be used in all cases, across the board.
22. §106.45(h)(2): Notify the parties of the outcome of the complaint, including the determination of whether sex discrimination occurred under Title IX, and the procedures and permissible bases for the complainant and the respondent to appeal, if applicable.
COMMENT-The NPRM would reduce the required amount of information to be included in the notice of outcome as it would not require a recipient to provide a description of the procedural steps taken from the receipt of the formal complaint through the determination and not require specific information regarding findings of fact supporting the determination to be included. The parties should have received regular and ongoing communication throughout the grievance process, so this eliminates the unnecessary redundancy.
Grievance procedures for the prompt and equitable resolution of complaints of sex discrimination involving student complainants or student respondents at postsecondary institutions (§106.46)
23. §106.46(b) Student employees. “When a complainant or respondent is both a student and an employee of a postsecondary institution, the postsecondary institution must make a fact-specific inquiry to determine whether the requirements of this section apply. In making this determination, a postsecondary institution must, at a minimum, consider whether the party's primary relationship with the postsecondary institution is to receive an education and whether the alleged sex-based harassment occurred while the party was performing employment-related work.
COMMENT-We recommend that the following sentence be added to this definition: Complainants or respondents shall only be subject to one (1) resolution process for the filed grievance (student or employee), as determined by the fact-specific inquiry.
24. §106.46(e)(6)(iii)- A postsecondary institution must take reasonable steps to prevent and address the parties' and their advisors' unauthorized disclosure of information and evidence obtained solely through the sex-based harassment grievance procedures;
COMMENT-Is the department planning to define what constitutes “reasonable steps” when it comes to ensuring that the parties or advisors do not make “unauthorized disclosure of information or evidence obtained solely through the sex-based harassment grievance procedures…”? Can the Department provide examples and factors in the determination of reasonable measures? Keep in mind that institutions, primary, secondary, and post-secondary, are different and what is reasonable to one institution may be burdensome to another institution.
25.§106.46 (f)(4)- Refusal to respond to questions of credibility. If a party does not respond to questions related to their credibility, the decisionmaker must not rely on any statement of that party that supports the party's position. The decisionmaker must not draw an
inference about whether sex-based harassment occurred based solely on a party's or witness's refusal to respond to questions related to their credibility.
COMMENT-We concur that credibility is an important component of the investigation and decision-making process. When a participant does not respond to questions relating to their credibility it certainly can have an impact on the decisionmaker. The statements in this proposed regulation appear to be contradictory. The first sentence “If a party does not respond…” appears to be a minor pullback of the current regulation which requires participation in the hearing, otherwise, no information may be considered by the decisionmaker from that party, nor from the investigation report. The proposed regulation appears to allow the decisionmaker the ability or latitude to consider statements made by a party who does not answer questions about their credibility from the investigation report. If that is the intent of the Department, we applaud that change to the regulation. If the ability of the decisionmaker to consider information provided by the party who refuses to answer questions about their credibility from the investigation report, then the second sentence in the proposed regulation “...decisionmaker must not draw an inference…” is contradictory to the prior sentence.
26. §106.46(j)-Informal resolution
COMMENT- We strongly advocate that both the complainant and respondent may request an informal resolution to address any incident of sex-based harassment. We believe that this provides equity in the process and is consistent with the parameters laid out in §106.44(k) of the proposed regulations.
Employment (§106.51)
27. §106.51(6)- Granting and return from leaves of absence, leave for pregnancy or related conditions, leave for persons of either sex to care for children or dependents, or any other leave.
COMMENT-The change to “or related conditions” encompasses all medical issues that may be associated with pregnancy, not just “childbirth”, “false pregnancy”, and “termination of pregnancy”. However, will “termination of pregnancy” be removed or modified because of SCOTUS overturning Roe v. Wade? How will that impact higher ed institutions in states like Georgia?
Retaliation (§106.71)
28. §106.71 A recipient must prohibit retaliation in its education program or activity. When a recipient receives information about conduct that may constitute retaliation, the recipient is obligated to comply with §106.44. A recipient must initiate its grievance procedures upon receiving a complaint alleging retaliation under §106.45. As set out in §106.45(e), if the complaint is consolidated with a complaint of sex-based harassment involving a student complainant or student respondent at a postsecondary institution, the grievance procedures initiated by the consolidated complaint must comply with the requirements of §§106.45 and 106.46. Prohibited retaliation includes but is not limited to:...
COMMENT-The ability in the NPRM to consolidate complaints of retaliation with an ongoing grievance procedure will be extremely beneficial for recipients as it will permit a recipient to provide a more timely and effective response by being able to move forward with both together instead of having to begin a separate procedure regarding the retaliation claim.
The leadership of the association is of course glad to speak with staff at the Department to provide further context or information related to our position and of course any of our comments, should the Department consider it beneficial.


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