The Department of Education (“ED” or the “Department”) issued its long-awaited Notice of Proposed Rulemaking[1] to amend regulations implementing Title IX of the Education Amendments of 1972 (“Title IX”) on November 29, 2018. Comments to the proposed regulation are due on or before January 30, 2019. Here are ten notice requirements the proposed regulation would impose on elementary and secondary schools if they become final.

1. Notice of a Formal Complaint (Section 106.45(b)(2))

“Upon receipt of a formal complaint,” a school must provide written notice to the parties of the recipient’s grievance procedures and of the allegations. This notice:

• must include sufficient details (such as the identities of the parties involved in the incident, if known, the specific section of the recipient’s policy allegedly violated, the conduct allegedly constituting sexual harassment under this part and under the recipient’s policy, and the date and location of the alleged incident, if known) and provide sufficient time to prepare a response before any initial interview;
• must also include a statement that the respondent is “presumed not responsible” for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process;
• must inform the parties that they may request to inspect and review evidence under section 106.45(b)(3)(viii); and
• must inform the parties of any provision in the recipient’s code of conduct that “prohibits knowingly making false statements or knowingly submitting false information during the grievance process.”

2. New Allegations

If the school later decides to investigate allegations not included in the initial complaint, the recipient must provide notice of the additional allegations to known parties. The Department’s reasoning for this requirement is “to keep the parties meaningfully informed of any expansion in the scope of the investigation.”

3. Emergency Removal of Respondent

If a school chooses “to remove a respondent from the education program or activity on an emergency basis,” the school must provide “notice and an opportunity to challenge the decision immediately following the removal.”

4. Extension of Investigation

A school must provide notice to the parties of “delay or extension of grievance process” that must include “reasons for the action.” Any extension of the investigation must be for “good cause.”

5. Notice of Hearings, Investigative Interviews, or other Meetings with a Party

Under proposed section 106.45(b)(3), a school “must provide written notice to the party whose participation is invited or expected written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings with a party, with sufficient time for the party to prepare to participate.” The Department’s rationale is to “ensure that the complainant and respondent are able to meaningfully participate in the process and that any witnesses have adequate time to prepare.” The Department believes that “[w]ithout this protection, a party’s ability to participate in a hearing, interview, or meeting might not be meaningful or add any value to the proceeding,” and specifically noted that this proposed provision “is equally important at the elementary and secondary education level and the postsecondary education level to ensure that both parties are treated equitably.” This proposed provision is similar to the Clery Act regulation at 34 CFR 688.46(k)(3)(i)(B).

6. Written determination of Responsibility

Proposed section 106.45(b)(4)(i) would require recipients to issue a written determination regarding responsibility. The regulation would require the notice of determination to include the following elements:

• the sections of the recipient’s code of conduct alleged to have been violated;
• the procedural steps taken from the receipt of the complaint through the determination;
• findings of fact supporting the determination;
• conclusions regarding the application of the recipient’s policy to the facts;
• a statement of, and the recipient’s rationale for, the result, including a determination regarding responsibility;
• any sanctions the recipient imposes on the respondent;
• and information regarding the appeals process and the recipient’s procedures and permissible bases for the complainant and respondent to appeal.

The regulation further requires that the written determination “contain a statement of, and rationale for, the result, including any sanctions imposed by the recipient and any remedy given to the complainant.” Importantly, the school “must provide notice of findings simultaneously to both parties/representatives.”

7. Appeals

• As to all appeals, the recipient must notify the other party in writing when an appeal is filed and implement appeal procedures equally for both parties
• Must also issue a written decision describing the result of the appeal and the rational for the result and provide the written decision simultaneously to both parties

8. Informal Resolution

The proposed regulation would continue to allow schools to engage in informal resolution (such as mediation), but under proposed section 106.45(b)(6) the school must provide the parties with written notice disclosing:

• the allegations;
• the requirements of the informal resolution process including the circumstances under which it precludes the parties from resuming a formal complaint arising from the same allegations, if any; and
• any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared.

The regulation would only permit informal resolution is when all parties agree in writing.

9. Nondiscrimination

Separate from notifications within the grievance process, the proposed regulation would also require schools to notify certain individuals “that it does not discriminate on the basis of sex in the education program or activity which it operates.” This requirement would apply to “applicants for admission and employment, students and parents of elementary and secondary school students, employees, sources of referral for applicants for admission and employment, and unions or professional organizations holding collective bargaining agreements or professional agreements with the recipient.”

Further, notice under this proposed section must state that inquiries about the application of Title IX may be referred to the school’s Title IX coordinator, or to the Assistant Secretary of the Department of Education. Proposed section 106.8(b)(2) requires recipients to “prominently display their Title IX nondiscrimination policy on their website and in each handbook or catalog” that it makes publically available.

10. Title IX Contacts & Grievance Procedures

Proposed section 106.8(c) would also require schools to provide notice of their grievance procedures to students and employees. The required notice must include “the electronic mail address of the employee or employees designated as Title IX Coordinators, in addition to providing the coordinator’s office address and phone number.”

Alternatively, a school could provide “a title with an established method of contacting the coordinator that does not change as the identity of the coordinator changes,” such as a static/generic email address (e.g., TitleIXCoordinator@school.org). The Department specifically solicits comments “on whether larger institutions of higher education should have a minimum number of individuals with whom individuals can file a complaint of sex discrimination.”

[1] Proposed Rule, 83 Fed. Reg. 61,462 (Nov. 29, 2018) (to be codified at 34 C.F.R. pt. 106).