Filed Under: 106.45
Can a school-sponsored, student-run club remove a student accused of sexual assault from the club before the recipient makes a determination of responsibility under 34 C.F.R. § 106.45?
Thank you for your March 1, 2023, email to the Office for Civil Rights of the U.S. Department of Education, asking about the Department’s regulations implementing Title IX of the Education Amendments of 1972, specifically whether a school-sponsored, student-run club may remove a student accused of sexual assault from the club before the recipient makes a determination of responsibility under 34 C.F.R. § 106.45. You indicated that OCR should assume the club has a process for removing members for misconduct and that the complainant asked the club to remove the respondent for the complainant’s safety. Your email asserted that it would be retaliatory for a recipient to exclude a student from the recipient’s programs before making a determination under 34 C.F.R. § 106.45. You asked whether this prohibition would also apply to student-run clubs and organizations recognized by a recipient. Your email was referred to OCR’s Program Legal Group, and we are pleased to respond. Please note that in all cases, OCR refrains from offering opinions about specific facts without first conducting an investigation.
OCR enforces Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. §§ 1681-1688, and its implementing regulations at 34 C.F.R. Part 106, which prohibit sex discrimination in educational programs and activities operated by recipients of Federal financial assistance. The Department’s Title IX regulations were amended in 2020 (2020 Title IX regulations).
The 2020 Title IX regulations set out the basic requirements for a grievance process for addressing formal complaints of sexual harassment. The 2020 Title IX regulations require a recipient to “[t]reat complainants and respondents equitably by providing remedies to a complainant where a determination of responsibility for sexual harassment has been made against the respondent, and by following a grievance process that complies with this section before the imposition of any disciplinary sanctions or other actions that are not supportive measures as defined in § 106.30, against a respondent.” 34 C.F.R. § 106.45(b)(1)(i). The 2020 Title IX regulations further require a recipient to describe or list possible disciplinary sanctions in its grievance process. 34 C.F.R. § 106.45(b)(1)(vi). Removal of a respondent from a recipient’s program or activity prior to a determination of responsibility would violate 34 C.F.R. § 106.45(b)(1)(i) unless the recipient was authorized to remove the respondent as a supportive measure or under its emergency removal provision. 34 C.F.R. § 106.44(c).
Your email presented a hypothetical scenario in which a complainant and a respondent accused of sexual assault are both members of a student club. In your hypothetical, the complainant asked the club to remove the respondent for the complainant’s safety. Your hypothetical did not indicate the extent to which the school oversees the actions of its student clubs.
The Preamble to the 2020 Title IX regulations does not specify whether the actions of a school-sponsored, student-run club constitute actions by a recipient. However, both the 2020 Title IX regulations and the Preamble address the contours of supportive measures provided by recipients. The 2020 Title IX regulations define supportive measures as “non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or chart to the complainant or respondent before or after the filing of a formal complaint or where no formal complaint has been filed.” 34 C.F.R. § 106.30. The definition of supportive measures further states that they are “designed to restore or preserve equal access to the recipient’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the recipient’s educational environment, or deter sexual harassment.” Id. As the Department explained in the Preamble, “whether or not a recipient has implemented a supportive measure ‘designed to effectively restore or preserve’ equal access is a fact-specific inquiry that depends on the particular circumstances surrounding a sexual harassment incident.” Preamble at 30181. Please note that the Preamble to the 2020 Title IX regulations clarifies OCR’s interpretation of Title IX and its regulations but is not legally binding on recipients.
The Department further clarified in the Preamble that “[t]he plain language of the § 106.30 definition does not state that a supportive measure provided to one party cannot impose any burden on the other party; rather, this provision specifies that the supportive measures cannot impose an unreasonable burden on the other party.” Preamble at 30180-81. “Whether an action ‘unreasonably burdens’ a respondent is fact-specific, but should be evaluated in light of the nature and purpose of the benefits, opportunities, programs and activities, of the recipient in which the respondent is participating, and the extent to which an action taken as supportive measure would result in the respondent forgoing benefits, opportunities, programs, or activities in which the respondent has been participating.” Id. at 30231. The Department declined to include a statement in the Preamble that “removals from . . . extracurricular activities do not unreasonably burden the respondent as long as the respondent is not separated from the respondent’s academic pursuits, because determinations about whether an action ‘unreasonably burdens’ a party are fact specific.” Id. at 30182.
Please note that correspondence issued by OCR in response to an inquiry from the public, including this message, does not constitute a formal statement of OCR policy and should not be construed as creating or articulating new policy. OCR’s formal policy statements are approved by a duly authorized OCR official and made available to the public via OCR’s Policy Guidance Portal.