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A Critical Drafting Error in Proposed Rule § 106.45(b)(3) Could Alter a School's Jurisdiction Over Title IX Cases

Posted by Joseph D. Lento | Feb 22, 2019 | 0 Comments

As the proposed rule changes to Title IX's enforcement mechanism wind their way through the political system, important details are emerging. One of the most noticeable and significant has to do with the jurisdiction of a school's Title IX enforcement system, and whether it reaches off-campus conduct.

An important wrinkle has emerged in this jurisdictional issue: There are conflicting provisions that make it unclear what a school can and cannot do.

Proposed Title IX Rule Change Would Alter a School's Jurisdiction

The proposed rules changes deal with the Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance regulation. This Regulation allowed schools to enforce their rules prohibiting sexual misconduct and harassment whenever that conduct would impact a student's education, even if the alleged incident happened off-campus.

The proposed amendments would alter this Regulation by giving a school jurisdiction over sexual misconduct and Title IX claims if they happened during the school's “programs or activities.”

However, there are conflicting provisions in the rule amendments over whether a school's jurisdiction over Title IX claims was restricted to those “programs or activities,” or if the school had the discretion to exercise wider jurisdiction to reach more conduct.

An Important Drafting Error in Proposed Rule § 106.45(b)(3)

One of the goals of the proposed rules is to better delineate what schools are legally required to do when they investigate allegations of Title IX violations and sexual misconduct. To do this, the proposed amendment to the Regulation would add a section, § 106.45, that outlines the grievance procedures for complaints of sexual harassment.

However, one part of that new section, § 106.45(b)(3), would state that “if the conduct alleged by the complainant…did not occur within the [school's] program or activity, the [school] must terminate its grievance process with regard to that conduct.”

This makes it sound like a school that received a Title IX complaint concerning conduct that happened off-campus was required to drop the case.

Meanwhile, the reasons given for the new section seem to undermine the strict requirement that schools have to drop cases once it becomes clear that the allegations involve off-campus activities. Instead, the rationale for the rule changes states that the Department of Education “emphasizes that a [school] remains free to respond to conduct that… did not occur within the [school's] program or activity, including by responding with supportive measures for the affected student or investigating the allegations through the [school's] student conduct code, but such decisions are left to the [school's] discretion.”

The language used in the rationale for the rule, however, appears nowhere in the proposed rule amendment.

Therefore, there is an important discrepancy between the proposed rule and the reasons provided for the amendments. Can schools exercise Title IX jurisdiction over sexual misconduct that fall outside of its “programs or activities”? The rationale given for the rule change says absolutely. The actual text of the rule, though, says no.

Title IX Defense Lawyer Joseph D. Lento is Monitoring the Situation

Joseph D. Lento is a national Title IX advisor and defense lawyer who is monitoring the situation. Contact him online or call him at (888) 535-3686 if you have been accused of sexual misconduct on campus.

About the Author

Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Joseph D. Lento has more than a decade of experience passionately fighting for the futures of his clients. Mr. Lento represents students and others in disciplinary cases and other proceedings at universities and colleges locally and nationwide while concurrently fighting in criminal courtrooms in Philadelphia, the Pennsylvania counties, and New Jersey. Mr. Lento has helped countless students, professors, and others in academia at more than a thousand universities and colleges across the United States. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and well-being. Joseph D. Lento is licensed in Pennsylvania, New Jersey, and New York, and is admitted pro hac vice as needed nationwide.

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