Filed Under: Jurisdiction
Is a recipient required to investigate a formal complaint alleging that sexual harassment occurred off campus or against a student engaged in a study abroad program, or must such complaints be dismissed?
The Title IX regulations recognize the statutory jurisdiction of Title IX’s language, which applies to persons in the United States. See 20 U.S.C. § 1681(a) (beginning with the words, “No person in the United States . . . .”). A recipient’s study abroad program may be part of the recipient’s “education program or activity,” but Title IX does not extend to conduct that occurs outside the United States. However, even when a recipient must dismiss allegations of sexual harassment because the alleged misconduct occurred outside the United States, nothing in the regulations precludes the recipient from addressing those allegations under the recipient’s own code of conduct. 34 C.F.R. § 106.45(b)(3)(i). With respect to conduct that occurs at an off-campus location within the United States, the regulations require a recipient to respond to actual knowledge of sexual harassment in the recipient’s education program or activity against a person in the United States. 34 C.F.R. § 106.44(a). The regulations state in 34 C.F.R. § 106.44(a): “Education program or activity” includes “locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution.” The Preamble to the regulations contains extensive discussion of the “education program or activity” jurisdictional condition, at 30195-30201, including, for example, the following statement from the Department at 30196 (footnotes omitted here): 4 For purposes of § 106.30, § 106.44, and § 106.45, the phrase “education program or activity” includes “locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the harassment occurs” and also includes “any building owned or controlled by a student organization that is officially recognized by a postsecondary institution.” The Title IX statute and existing Title IX regulations already contain detailed definitions of “program or activity” that, among other aspects of such definitions, include “all of the operations of” a postsecondary institution or local education agency. The Department will interpret “program or activity” in these final regulations in accordance with the Title IX statutory (20 U.S.C. 1687) and regulatory definitions (34 CFR 106.2(h)), guided by the Supreme Court’s language applied specifically for use in sexual harassment situations under Title IX regarding circumstances over which a recipient has control and (for postsecondary institutions) buildings owned or controlled by student organizations if the student organization is officially recognized by the postsecondary institution. With respect to addressing such conduct via a recipient’s code of conduct, 34 C.F.R. § 106.45(b)(3)(i) expressly authorizes a recipient to address alleged misconduct that does not meet the Title IX jurisdictional requirements (i.e., did not allegedly occur in the recipient’s education program or activity, or did not occur against a person in the United States). Furthermore, at 30199 of the Preamble to the regulations, the Department notes: [N]othing in the final regulations prevents recipients from initiating a student conduct proceeding or offering supportive measures to students affected by sexual harassment that occurs outside the recipient’s education program or activity. Title IX is not the exclusive remedy for sexual misconduct or traumatic events that affect students. As to misconduct that falls outside the ambit of Title IX, nothing in the final regulations precludes recipients from vigorously addressing misconduct (sexual or otherwise) that occurs outside the scope of Title IX or from offering supportive measures to students and individuals impacted by misconduct or trauma even when Title IX and its implementing regulations do not require such actions.