By Brett A. Sokolow, J.D., Chair of the Board, TNG; President, ATIXA
This Tip of the Week focuses on Section 106.44 of the 2020 Title IX regulations, which addresses supportive measures. Many of ATIXA’s members are coming to us with questions about the obligation to provide supportive measures equitably, and there seem to be some lingering misunderstandings of the Title IX regulations, so this Tip of the Week will help to clarify.
We are hearing from many professionals that they believe recipients are obligated to provide equitable supportive measures to each party. Now, this isn’t a bad idea generally (though in execution it can become cumbersome), and we hope that support of all students and employees is a reflection of our institutional ethos. That said, the regs don’t require equitable provision of supportive measures.
To be clear, the regs kind of fudge the issue. They say that supportive measures must be offered equitably to the complainant and respondent, but the preamble then goes on to clarify that supportive measures for complainants include the laundry list of supports and resources that we all have in our policies. But they then state that supportive measures are equitably provided to respondents by doing nothing more than ensuring that respondents are not subject to penalty or discipline without first assuring that the rights of Section 106.45 are accorded. There is no requirement to provide counseling, or academic adjustments, or multilateral no-contact orders. If you think about it, this is an incoherent interpretation of the concept of equity, but that is what it says (p. 877 of 2,083-page version):
Under § 106.44(a) and the § 106.30 definition of “supportive measures,” recipients must offer complainants supportive measures designed to restore or preserve complainants’ equal educational access (with or without a grievance process pending), and the final regulations’ prohibition against a recipient punishing a respondent without following a fair grievance process, including application of a presumption of non-responsibility until conclusion of the grievance process, does not diminish the supportive, meaningful response that a recipient is obligated to offer complainants.
But, didn’t the regs say that the laundry list of all supportive measures must be offered equitably? Yes, the draft regulations did say that. So did the 2017 Interim Guidance before that. Then, the final version of the regs backed off of that position and the 2017 document was withdrawn by OCR. This decision by OCR was discussed at length in the preamble. Despite backing off of the position in the draft, ED cleverly wrote the regs to de-emphasize this shift to all but the most careful readers. So, should you provide equitable supports to all parties? Yes, to the extent it makes sense to do so. But, do you have to invent an equitable roster of respondent advocates because you offer access to victim advocates as a supportive measure? Nope (and there’s actually no such thing as a respondent advocate – they’re called lawyers).
Pages 905-06 of the preamble are absolutely clear on this:
Discussion: Section 106.44(a) obligates a recipient to offer supportive measures to every complainant, by engaging in an interactive process by which the Title IX Coordinator contacts the complainant, discusses available supportive measures, considers the complainant’s wishes with respect to supportive measures, and explains to the complainant the option for filing a formal complaint … There is no corresponding obligation to offer supportive measures to respondents; rather, recipients may provide supportive measures to respondents and under § 106.45(b)(1)(ix) the recipient’s grievance process must describe the range of supportive measures available to complainants and respondents.