Filed Under: Deliberate Indifference
Under the Title IX regulations, will the Department apply the deliberate indifference standard to a complaint regarding a recipient’s response to sexual harassment? For example, will the Department apply the deliberate indifference standard to assess a respondent’s allegations that the recipient’s grievance process was inequitable or that the supportive measures implemented by the recipient were unreasonably burdensome?
The Title IX regulations require a recipient to promptly respond to actual knowledge of sexual harassment in the recipient’s education program or activity against a person in the United States in a manner that is not deliberately indifferent. 34 C.F.R. § 106.44(a). The regulations further require, as part of the recipient’s response, that the recipient treat the parties equitably, which for a respondent means refraining from imposing disciplinary sanctions or other actions that are not supportive measures (as defined in 34 C.F.R. § 106.30) against a respondent, without following the 34 C.F.R. § 106.45 grievance process. See, e.g., 34 C.F.R. §§ 106.44(a), 106.45(b)(1)(i). 3
With respect to a respondent’s claim that a recipient’s grievance process was inequitable, the recipient’s legal obligation is to comply with 34 C.F.R. §§ 106.44, 106.45 as it conducts a grievance process. Where a recipient’s supportive measures unreasonably burden a respondent, those supportive measures would not meet the definition of a “supportive measure” in 34 C.F.R. § 106.30. The recipient must follow the grievance process specified in 34 C.F.R. § 106.45 before taking an action that is not a supportive measure, unless the emergency removal provision in 34 C.F.R. § 106.44(c) or administrative leave provision in 34 C.F.R. § 106.44(d) applies