Code of Federal Regulations

• CFR Part 106- Nondiscrimination on the Basis of Sex

• CFR Part 100- Nondiscrimination on the Basis of the Civil Rights Act of 1964

OCR and Title IX

• DOE Title IX Final Rule press release

  • “Protect against all sex-based harassment and discrimination.”

  • “Promote accountability and fairness.”

  • “Empower and support students and families.”

• Compliance (Background)

  • Resolution agreements—“Moreover, in the context of administrative enforcement, a recipient must be given notice and an opportunity to come into compliance before the termination of funding. 20 U.S.C. 1682. Indeed, the Department’s administrative enforcement investigations generally result in agreements with the recipient to take action that would bring them into compliance. Thus, if the Department receives a complaint about severe or pervasive harassment, and its investigation confirms the allegations in that complaint, the Department will bring this conduct to the attention of the recipient, and to discuss and determine appropriate corrective measures with the recipient’s input.””

2024 Title IX Final Rule

• Published in the Federal Register (FR), where federal agencies publish rules, proposed rules, and notices.

• “The U.S. Department of Education (Department) amends the regulations implementing Title IX of the Education Amendments of 1972 (Title IX). The purpose of these amendments is to better align the Title IX regulatory requirements with Title IX’s nondiscrimination mandate. These amendments clarify the scope and application of Title IX and the obligations of recipients of Federal financial assistance from the Department, including elementary schools, secondary schools, postsecondary institutions, and other recipients (referred to below as “recipients” or “schools”) to provide an educational environment free from discrimination on the basis of sex, including through responding to incidents of sex discrimination. These final regulations will enable all recipients to meet their obligations to comply with Title IX while providing them with appropriate discretion and flexibility to account for variations in school size, student populations, and administrative structures.”

• Overview of key provisions (link dead, see TitleIX-final-rule-summary.pdf in the Title VI folder)

• Outline of key provisions

Title IX

• There is a discrepancy with respect to how they’re enforced

• They key to Title IX is

  • Centralized oversight and reporting body: Title IX Coordinator

    • Section 106.8(a): Title IX Coordinator

      • “Title IX Coordinator’s role as outlined in the proposed regulations, including with respect to duties contemplated by proposed § 106.40(b), 106.44(b), 106.44(f), 106.44(k), 106.45(d)(4)(iii), and 106.45(h)(3).”

  • Unified nondiscrimination policy, grievance procedures, and notice of nondiscrimination

    • The notice of nondiscrimination, 106.8(c)(1), must be published in accordance with 106.8(c)(2), the notification of rights

      • The notice “notifies individuals of rights protected by Title IX and how to make a report or a complaint under Title IX.”

      • “The final regulations’ posting requirement is necessary so that students, their parents or guardians, or other legal representatives as appropriate, employees, and others who seek to participate in a recipient’s education program or activity have access to information about Title IX whenever they might need it. Section 106.8(c)(2) may be broader than other State or Federal notice requirements that relate only to employees because a recipient needs to reach the entire school community, including those who join midway through or for only a limited part of the school year.”

    • Final Rule Section 106.46 & 106.44(k): Framework for Grievance Procedures

  • Final Rule 106.8(d): Obligation to train all employees

    • How do you close the gap in reporting awareness?

    • “The Department has modified § 106.44(c)(2)(ii)(B) to state that one of the options for Category 2 employees is to provide the contact information of the Title IX Coordinator and information about how to make a complaint of sex discrimination to any person who provides the employee with information about conduct that reasonably may constitute sex discrimination under Title IX or this part.” Link

      • No one is made aware that employees formally trained in Title IX crises response

  • Final Rule Section 106.45(b)(2) Prohibition on Conflicts of Interest and Bias

    • “The Department explains these anti-bias provisions in greater detail in the discussion of §§ 106.8(d), 106.44(k)(4), and 106.45(b)(2)”

    • The school took a biased position wrt incidents involving pro-Palestinian students

  • There is no Title IX obligation to train students, however, there was a need for prevention training that was recognized by the Campus SaVE Act

    • What is the story there?

    • It is clear that the university is just trying fulfill a legal obligation—Title IX education consisted of several prevention training modules, with link clicks to long documents in between. These long documents explained our rights. But there were no clear messages stating, “if you are unsure whether an incident may have occurred go to your Title IX Coordinator.” The 1st requirement, above everything else, is the students need to know reflexively that the coordinator exists.

      • “First, encouraging reporting and facilitating complaints of sex discrimination is a critical part of a recipient’s duty to effectuate Title IX’s nondiscrimination mandate…and the risk of increased litigation, if any, is justified because, as explained in greater detail above, mandating that complaints be made in writing discourages individuals from making complaints, in contravention of the purpose of Title IX to eliminate all discrimination on the basis of sex in any education program or activity receiving Federal financial assistance.”

  • Coverage goes on and on, from constructive notice jurisdiction to what constitutes a complaint 1 & 2 to a legal obligation to respond to identity disclosure to recordkeeping

• 2020 Q & A on Title IX 2020 Amendments

  • P. 3, “The Department’s Title IX regulations were first issued in 1975, reissued in 1980, and then amended after that, including in 2006 and 2020. Prior to 2020, the regulations set out requirements under Title IX for educational programs and activities that receive federal financial aid, but they did not include specific requirements related to sexual harassment. Instead, OCR had several guidance documents in place to assist schools in understanding how OCR interpreted the Department’s Title IX regulations. The 2020 amendments added specific, legally binding steps that schools must take in response to notice of alleged sexual harassment.”

Title VI

• CFR § 100.6 Compliance Information

  • 34 CFR § 100.6(a) Cooperation and assistance. Discusses the role of federal agencies in providing guidance and seeking voluntary compliance, emphasizing cooperation rather than strict enforcement measures.

  • 34 CFR § 100.6(b) Compliance reports. Requires institutions to submit compliance reports, but it gives the Department of Education flexibility in determining the timing, form, and content of those reports. It also provides an example (racial and ethnic data) but doesn’t mandate exactly what every institution must report.

    • Reactive oversight. “Each recipient shall keep such records and submit to the responsible Department official or his designee timely, complete and accurate compliance reports at such times, and in such form and containing such information, as the responsible Department official or his designee may determine to be necessary to enable him to ascertain whether the recipient has complied or is complying with this part.”

  • 34 CFR § 100.6(c) Access to sources of information. Allows the Department to access records and information but leaves room for institutions to navigate privacy concerns. Again, it is flexible and non-prescriptive.

  • 34 CFR § 100.6(d) Information to beneficiaries and participants. Under Title VI requires that institutions “make available” information about non-discrimination to beneficiaries and participants.

    • It does not have the same detailed obligations for notification and publication that Title IX does

    • The posting requirement under Title IX goes further to ensure ongoing and broad access to information

    • Leaves significant room for interpretation. It does not prescribe specific methods (e.g., website postings, handbooks, etc.) or detail exactly what information must be communicated, unlike Title IX regulations, which are far more explicit.

  • Has not seen updates in over two decades—45 FR 30918, May 9, 1980, as amended at 53 FR 49143, Dec. 6, 1988; 65 FR 68053, Nov. 13, 2000

    • 45 FR 30918, May 9, 1980: This indicates that the regulation was originally published in Volume 45 of the Federal Register, on page 30918, on May 9, 1980.

    • 53 FR 49143, Dec. 6, 1988: This indicates that the regulation was amended (updated) in Volume 53 of the Federal Register, on page 49143, on December 6, 1988.

    • 65 FR 68053, Nov. 13, 2000: This is another amendment, published in Volume 65, on page 68053, on November 13, 2000.

Why the differences?

• Title VI’s enforcement and interpretation have evolved more through case law and agency guidance, while Title IX has seen more direct amendments and regulatory updates.

• Title VI enforcement may not be seen as a top priority without significant public outcry or high-profile cases drawing attention to it.

• Without significant pressure on agencies or demonstrated need, agencies may take a cautious approach that could be seen as overreaching or poorly received.

• There is a need to strike a balance between the need for new rules against the risk for pushback, legal challenges, and resource limitations.

  • The key would be to find a balance—creating structured processes that improve accountability, but not so burdensome that they hinder institutional flexibility. For example, rather than prescribing exactly how every school must handle all aspects of compliance, the rules could mandate certain minimum standards (like public notifications, coordinators, or complaint processes) while still allowing room for schools to adapt based on their size or needs.

• Historical Context

  • Title VI, passed in 1964, was part of broader civil rights legislation at a time when the legal landscape was focused on dismantling systemic racial segregation. The regulations were written in a way that gave federal agencies discretion to enforce the law but didn’t require institutions to follow highly specific processes.

  • Title IX, passed in 1972, evolved with a different focus, particularly on educational institutions and gender equality, which led to much more granular regulations over time, particularly in recent decades as gender-based discrimination and sexual misconduct gained more attention.

• Congressional Research Service

  • “Although Title VI applies to funds distributed by every federal agency, much of the doctrine under the statute has been shaped by its use in the public schools. That doctrinal story has accordingly centered on one agency in particular: the Office for Civil Rights (OCR)…”

  • “OCR primarily enforces Title VI through its investigation and resolution of complaints.”

Demonstrate similar need that resulted in SaVE and Title IX amendments

• What is the backstory for Campus SaVE

• Gather evidence that corresponds to

  • Bias, discrimination is occurring (and in some cases being improperly handled and going unanswered), violence and crimes are occurring (done)

  • The feedback loop is broken

  • Backlog in cases at OCR

  • OCR is taking case by case, every school is subject to different accountability measures

  • OCR mentions that Title VI-related incidents continue even after investigations began (UMich)

• They need a notification, the notifications need to be published, they need a coordinator, they need to know they can report to the coordinator, they need to be trained

• Reporting to campus law enforcement does not happen at high rates

  • Fraternities at SCU—“most of the incidents go unreported”

    • Where are the reports for 2021? Pp. 97

  • Reporting is a problem at SCU—“At SCU, there is currently no way to know how pervasive sexual violence is on campus since students often do not report incidents and there is no central place for recording all reports that are made.”

    • “Adding to the issues around Title IX is the misinformation that is spread regarding what the Title IX coordinators are supposed to do, and how the process looks. Even though there are trainings offered at orientation, during sexual assault awareness month, and at the dorms and around campus, students often learn about the office through word of mouth. “

    • SV policy addressed at SCU

      • “At SCU, an additional reason students may not report sexual violence is because there is no central place to make a report, and the process of reporting is complicated and confusing.”

• Campus SaVE Act

  • There should be real-time university sponsored Clery reporting with crime classifications

    • 60 Day Daily Crime and Fire Log

    • Crime statistics reporting

    • Timely Warnings

    • Clery Report 2023, due each October

    • Campus Security Authority and campus police make up the reporting body to Clery crime reporting, this includes Title IX personnel.

  • Important to

    • Empowering Students and Families:

      • By having access to this information, students, parents, and employees can better assess the safety of the campus environment and decide on appropriate precautions. It also helps prospective students and their families make informed choices when selecting a college or university.

    • Make coordinators aware of incidents that could be contributing to systemic problems on campus

    • Encouraging Reporting:

      • The Clery Act also encourages students, faculty, and staff to report crimes through campus security authorities (such as campus police or Title IX offices), promoting a culture of reporting and safety.

  • Campus SaVE Act FAQ

    • Campus SaVE Act requirements

    • The training program should also include: who specifically to report to

      • There is a reason every university Title IX Coordinator has the same official title, the students should know the title

• Campus SaVE Act

  • 2011 April 2011 Dear Colleague Letter—“Noting that sexual assault had become an epidemic on college campuses, OCR reiterated that Title IX guarantees all students an education free from sexual harassment and violence. OCR also recommended that “all schools implement preventive education programs” as part of their orientation programs for new students, faculty, and staff.

    • 2011 Dear Colleague Letter

      • Some quotes

        • “The sexual harassment of students, including sexual violence, interferes with students’ right to receive an education free from discrimination and, in the case of sexual violence, is a crime.”

        • “The statistics on sexual violence are both deeply troubling and a call to action for the nation. A report prepared for the National Institute of Justice found that about 1 in 5 women are victims of completed or attempted sexual assault while in college. The report also found that approximately 6.1 percent of males were victims of completed or attempted sexual assault during college.”

        • Obligation to Respond. “If a school knows or reasonably should know about student-on-student harassment that creates a hostile environment, Title IX requires the school to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects.”

        • “The notice must state that inquiries concerning the application of Title IX may be referred to the recipient’s Title IX coordinator or to OCR. It should include the name or title, office address, telephone number, and e-mail address for the recipient’s designated Title IX coordinator. “

        • “Informing students of their options to notify proper law enforcement authorities, including school and local police, and the option to be assisted by school employees in notifying those authorities. “

    • Pieces of this list need work Pp. 18

      • Know the school’s prohibition against sex discrimination, including sexual harassment and violence

      • Recognize sex discrimination, sexual harassment, and sexual violence when they occur

      • Understand how and to whom to report any incidents

      • Know the connection between alcohol and drug abuse and sexual harassment or violence

      • Feel comfortable that school officials will respond promptly and equitably to reports of sexual harassment or violence

• The issue with Title IX will be an issue with Title VI

  • The evolution of more granular regulations over time is moot if an ever more perfect system is effectively “out of reach” of the students. The Title IX Coordinator is the necessary connection between the students and this system.

    • There is an undue cognitive burden with respect to notification and publication of notification. The Title IX Coordinator—a very important piece of the reporting process—is buried within the legal material.

    • New Requirements to Educate Students Pp. 3 should explicitly mention the Title IX Coordinator by name as the contact for reports of misconduct

• College-age victims of sexual violence don’t report for several reasons

  • Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Rape and Sexual Victimization Among College-Aged Females, 1995-2013 (2014) stats are located on the RAINN cite

    • Each reason represents a barrier to reporting

    • Having a single reporting contact that students can trust and are “reflexively” aware of can help them overcome a lack of familiarity and fear. If this barrier is reduced, it may aid in helping students overcome other barriers. A vague sense of anxiety can often be misattributed to what feels like a logical reason.

• Data from 21 schools as of 2019 says

  • Nonconsensual sexual contact by physical force or inability to consent

    • 26.4 percent among undergraduate women

    • 6.9 percent among undergraduate men

  • “Slightly less than a third of the women who reported nonconsensual penetration by physical force or inability to consent made contact with a program or resource (29.5%), as did 17.8 percent of men, and 42.9 percent of TGQN students. “

  • “Undergraduate women are more likely to report nonconsensual sexual contact by physical force or inability to consent occurred since the beginning of the Fall 2018 term in their first year at school (16.1%) when compared to later years (13.8% in the second year, 11.5% in the third year, and 11.3% in the fourth year or higher).”

  • “The most important reason women gave for not contacting a program was she could handle it herself (20.0%); the victim did not think the incident was serious enough to merit seeking help (16.8%); or that the victim felt embarrassed, ashamed or that it would be too emotionally difficult to seek assistance (15.9%).”

  • Study methodology (2015)

• Sexual Harassment, IPV, stalking

  • “Sexual comments…” is not covered by training, Pp. xv

    • “Students were asked if they had witnessed various situations related to sexual assault and misconduct against others. The most common situation respondents reported they observed was someone making sexual comments that made others feel uncomfortable or offended (26.0%), followed by witnessing a situation they believe could have led to sexual assault (15.0%), witnessing someone behaving in a controlling or abusive manner (13.0%), and witnessing sexually harassing behavior (7.0%).”

  • Pp. Xii

    • “Among all students, 41.8 percent reported experiencing at least one sexually harassing behavior since enrollment. Overall, 18.9 percent of students reported sexually harassing behavior that either “interfered with their academic or professional performance”, “limited their ability to participate in an academic program” or “created an intimidating, hostile or offensive social, academic or work environment”. “

• Table 55

  • How knowledgeable are you about where to make a report of sexual assault or (other)3 sexual misconduct at [University]?—28.4, 34.5, 33.6 % (undergraduate) reported “very” or “extremely”

Campus SaVE Act requires training and annual compliance reporting wrt sexual harassment and violence

• SaVE Act website

  • “Most higher education institutions—including community colleges and vocational schools—must educate students, faculty, and staff on the prevention of rape, acquaintance rape, domestic violence, dating violence, sexual assault, and stalking.”

  • History

    • 2001 revised sexual harassment guidance to include employee training—“[S]chools need to ensure that employees are trained so that those with authority to address harassment know how to respond appropriately, and other responsible employees know that they are obligated to report harassment to appropriate school officials.”

    • 2011 April 2011 Dear Colleague Letter—“Noting that sexual assault had become an epidemic on college campuses, OCR reiterated that Title IX guarantees all students an education free from sexual harassment and violence. OCR also recommended that”all schools implement preventive education programs” as part of their orientation programs for new students, faculty, and staff.

      “These programs should include a discussion of what constitutes sexual harassment and sexual violence, the school’s policies and disciplinary procedures, and the consequences of violating these policies.””

    • 2013 Campus SaVE Act—“Amended the Clery Act to mandate extensive “primary prevention and awareness programs” regarding sexual misconduct and related offenses.”

      • “FINANCIAL AID REQUIRES TRAINING— An amendment to the Clery Act, the Campus Save Act applies to all postsecondary institutions that participate in federal student financial assistance programs under Title IV of the Higher Education Act of 1965,”

        • “If your institution publishes an Annual Security Report under the Clery Act, you must offer training.”

    • 2014 reporting requirement—“Schools must report compliance with the Campus Save Act in their Annual Security Reports.”

  • It makes sense to protect students, but with respect to denied access to an education Title VI and Title IX go much farther

• Details on Clery Act reporting

UCLA Reports

• Title IX is largely committed to SVSH on college campuses (opinion based on experience and what I’m seeing)

  • Title IX Regulations FAQs

  • UCLA Title IX Office

• UCLA Public Accountability Report

• UCLA 2023 Clery Report

  • P. 34-44 “Sexual Assault Prevention”

  • Pp. 44-99 “Title IX Reporting”—“In accordance with the SVSH Policy, any person may make a report, including anonymously, of sexual harassment, sexual violence (sexual assault, relationship violence, stalking, or sexual exploitation), or other conduct prohibited by the SVSH Policy to the Title IX Coordinator, or to any Responsible Employee. The report shall be forwarded to the Title IX Officer.”

  • P. 105-106 “Violence Against Women Act”

  • Pp. 106-110 “Hate Crime Definitions”

    • Not much here compared to SaVE Act & Title IX obligations

  • All of the above seems to pertain to “crime” prevention, compliance, reporting; although overall, Title IX training went into relationship abuse and other forms of coercive conduct, etc. that would prevent a reasonable person from access to their education but would not be considered a “crime” per se. This can and should be expanded to similar behavior that occurs between anyone, not just people in social relationships.

  • The “crime” aspects of this wrt prevention, compliance, reporting should absolutely apply to non-affiliate conduct on campus.

Title IX

UCLA Title IX

• “Title IX was enacted in 1972 as a code of federal regulation. It is enforced by the Office of Civil Rights (OCR) of the United States Department of Education. The University of California Systemwide Title IX office constructs policy in compliance of state and federal law uniformly across the UC system. Title IX prohibitive conduct as outlined in the SVSH Policy include: Sexual Harassment, Sexual Violence, Relationship Violence, Stalking, Gender discrimination, Gender identity discrimination, Gender Expression discrimination, Sexual Orientation discrimination, Pregnancy discrimination, Retaliation, Indecent Exposure, Statutory rape, Invasion of Sexual Privacy, and Failure to Comply with an Order.”

  • UC SVSH Policy includes all of the above

  • Training requirements and relevant policies

    • Training required annually, failure to complete training results in registration hold on account

    • “Mandatory civil rights training” by EDI@UCLA simply leads to Title IX training

UCLA and Title VI

• UC Anti-Discrimination Policy