12 September 2022
Finally, given the complexities with requiring employees to report harassment or other discrimination to the Title IX coordinator, the Department should issue supplemental guidance instructing schools on how to respond to possible harassment or other discrimination while protecting the privacy and safety of LGBTQI+ students and employees (who may not wish to be outed to their parents or the school. [...] We also urge the Department to explicitly clarify in the regulations that if a party requests a certain supportive measure and it is “reasonably available,”32 then the school must provide it; and that if the school is aware that the supportive measure offered are ineffective, then the school must modify it or offer additional supportive measures.33 Finally, we ask the Department to expand the list. [...] 35 The proposed rules would allow schools to use an informal process as long as all parties receive written notice of their rights and obligations, give consent to the process, can withdraw at any time before the end to do a traditional investigation, and are not required to participate in an informal resolution or to waive their right to an investigation in order to continue accessing any educati. [...] While we appreciate the Department’s efforts to ensure that schools do not presume one way or the other at the start of an investigation, the Department should simply require schools to notify parties that a determination about responsibility will not be made until the end of an investigation and that neither party is presumed to be telling the truth or lying at the outset. [...] We support the proposed rule requiring institutions of higher education to offer appeals to both parties based on a procedural irregularity, new evidence, or a Title IX official’s bias or conflict of interest that affected the outcome, and allowing them to offer additional bases to both parties equally.59 However, we urge the Department to ensure that parties are afforded the same appeal rights in.