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Updated Title IX Rules: Analysis on Jurisdiction

Posted: 08/10/2020
Industries: Higher Education

Participating or Attempting to Participate

In order to file a formal complaint, the complainant must be “participating in or attempting to participate in” the recipient’s education program or activity at the time the formal complaint is filed. A complainant may be ‘‘attempting to participate’’ in a program or activity in a broad variety of circumstances that do not necessarily depend on being enrolled as a student or employed as an employee. For example, a complainant may be “attempting to participate” when (a) the complainant has withdrawn from the school due to alleged sexual harassment and yet expresses a desire to re-enroll if the institution responds appropriately to the sexual harassment allegations, or (b) if the complainant has graduated but would like to participate in alumni events at the school, or (c) if the complainant is on a leave of absence to seek counseling to recover from trauma. § 106.8(d); 85 FR 30198, 30219.

Educational Program or Activity

Section 106.44(a) covers sexual harassment that occurs in a recipient’s “education program or activity” “against a person in the United States.” The phrase “education program or activity” includes “all of the operations of” an institution (i.e., “locations, events, or circumstances”) over which the institution “exercised substantial control over both the respondent and the context in which the harassment occurs” as well as “any building owned or controlled by a student organization that is officially recognized by a postsecondary institution.” See 20 U.S.C. 1687, 34 CFR 106.2(h), 85 FR 30197. To determine whether a postsecondary institution exercised “substantial control” over the “context” of sexual harassment, the Department will examine several factors, including whether the institution funded, promoted, or sponsored the event or circumstance where the alleged harassment occurred. This is a fact-specific inquiry. No single factor is determinative.

Off campus. As shown above, the jurisdictional reach of the new regulations are tied to “education program or activity,” not necessarily whether the incident occurred on or off campus. So there may be situations where an off-campus incident would fall within an institution’s education program or activity. Indeed, the Department confirmed that an institution’s Title IX obligations may extend to off-campus sexual harassment incidents if any of three conditions are met: “(1) if the off campus incident occurs as part of the recipient’s ‘operations’ pursuant to 20 U.S.C. 1687 and 34 CFR 106.2(h); (2) if the recipient exercised substantial control over the respondent and the context of alleged sexual harassment that occurred off campus pursuant to § 106.44(a); or (3) if a sexual harassment incident occurs at an off-campus building owned or controlled by a student organization officially recognized by a postsecondary institution pursuant to § 106.44(a).” 85 FR 30196-97. For example, an off-campus rape may fall under an institution’s “substantial control” if the victim is also harassed on campus. 85 FR 30197, 30200.

Student organizations. Where a postsecondary institution has officially recognized a student organization, such as a fraternity or sorority, the institution’s Title IX obligations apply to sexual harassment that occurs in buildings owned or controlled by such student organization, irrespective of whether the building is on campus or off campus, and irrespective of whether the institution exercised substantial control over the respondent and the context of the harassment outside the fact of officially recognizing the student organization that owns or controls the building. 85 FR 30197.

Online sexual harassment. “All of the operations of” an institution includes computer and internet networks, digital platforms, and computer hardware or software owned or operated by, or used in the operations of, the recipient. Thus, recipients must analyze the factual circumstances of online harassment to determine whether it exercised “substantial control” over both the “respondent and the context in which the harassment occurred.” For example, a student using a personal device to perpetrate online sexual harassment during class time may constitute a context over which the recipient exercises substantial control. 85 FR 30202.

Against a Person in the United States

Student Abroad Programs. Title IX states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]” Thus, based on the plain terms of Title IX and various Supreme Court decisions that have interpreted it, the Department has taken the position that Title IX does not have an extraterritorial application absent further Supreme Court or congressional direction on the issue.

However, nothing in the final regulations prevent institutions from offering supportive measures and addressing sexual misconduct that occurs outside of the scope of Title IX, nor do the final regulations discourage or prevent victims from reporting sexual misconduct to law enforcement or filing civil lawsuits. Institutions are free to adopt disciplinary policies to address sexual misconduct that occurs outside of the United States. 85 FR 30205-06.

Foreign Exchange Students. Title IX protects every individual in the United States against discrimination, regardless of citizenship or legal residency. Thus, international students or foreign students studying in the United States are entitled to the same protections under Title IX as any other individual. 85 FR 30207.