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Sanctioning Different for Students vs Employees (Response 2/15/21)

Filed Under: 106.45

Do the new Title IX regulations allow universities to sanction/discipline Respondents who are employees or faculty using procedures that are different from the procedures used to sanction/discipline Respondents who are students?

In cases against Student Respondents, the Adjudicator/Hearing Officer would determine the appropriate sanction/discipline;  the Adjudicator/Hearing Officer would issue a written decision simultaneously to both parties that contains the sanction/discipline and rationale, along with notice of the parties 3 grounds for appeal.  In cases against Employee or Faculty Respondents, the Adjudicator/Hearing Officer would issue a written decision simultaneously to both parties along with notice of their 3 grounds for appeal, but no sanction would be included.

After the appeal is completed, the University would determine appropriate sanctions for the staff and faculty respondents.  The respondents would then have the right to grieve those sanctions pursuant to State law grievance rights, collective bargaining agreements or faculty grievance rights.  The complainant (student, staff or faculty) would NOT have a right to participate in any staff or faculty grievance process challenging the sanction/discipline.


Thank you for your question regarding OCR’s new Title IX Regulations. All references and citations are to the official version of the Regulations published in the Federal Register available is here. A link to the unofficial version of the final Regulations is available here.

Please note that the response provided to you by OCR is not legal advice and does not constitute an OCR determination regarding the compliance or non-compliance with respect to the new Regulations. OCR does not provide advisory opinions, and determinations about a recipient’s (school’s) compliance with civil rights laws like Title IX are made only after OCR has investigated a complaint filed with OCR, in accordance with OCR’s Case Processing Manual.

Regarding your question, the Title IX  Regulations, at 34 C.F.R. § 106.45(b)(7), requires a recipient’s decision-maker(s) to issue a written determination that must include, among other items, the result as to each allegation and rationale for the result, any disciplinary sanctions imposed by the recipient against the respondent, and whether remedies will be provided by the recipient to the complainant.

The  Regulations do not preclude a recipient from using one decision-maker to reach the determination regarding responsibility, and having another decision-maker, who may be an employee or administrator of the recipient (e.g., a tenure committee) determine appropriate disciplinary sanctions (including making such a decision at a separate hearing), so long as the end result is that the decision-maker who reached the determination regarding responsibility includes the disciplinary sanctions imposed by the recipient against the respondent in the written determination issued under 34 C.F.R. § 106.45(b)(7). The issuance of a written determination cannot be a piecemeal process that is broken down into chronologically occurring sub-parts.

In other words, when a recipient uses a separate decision-maker to make disciplinary sanction decisions, the recipient must issue a single written determination containing all of the information required under 34 C.F.R. § 106.45(b)(7). Recipients should also remain aware of their obligation to conclude the grievance process within the reasonably prompt time frames designated in the recipient’s grievance process, under 34 C.F.R. § 106.45(b)(1)(v). Additionally, each decision-maker—whether an employee of the recipient or an employee of a third party such as a consortium of schools—owes an individual and ongoing duty to not have a conflict of interest or bias for or against complainants or respondents generally, or with respect to an individual complainant or respondent, pursuant to 34 C.F.R. § 106.45(b)(1)(iii).


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