Monday, September 12, 2022

The Honorable Dr. Miguel Cardona
Secretary of Education

c/o Alejandro Reyes, PCP-6125

U.S. Department of Education

400 Maryland Avenue, SW

Room 6E310

Washington, D.C. 20202


By: Electronic Federal e-Rulemaking Portal Submission
Re:       Docket ID ED-2021-OCR-0166

Nondiscrimination on the Basis of Sex in Education Program or Activity Receiving Federal Financial Assistance


Dear Secretary Cardona:

The University of Iowa submits comments in response to the proposed rulemaking (“NPRM”) amending regulations for the Title IX of the Education Amendments of 1972. The University of Iowa has a multi-disciplinary team working to implement evidence-informed prevention programs and intervention services, as well as best practice policies and procedures. The Title IX Coordinator leads these collaborative efforts including implementing a climate survey to assess students’ experiences with sexual harassment and their perception of how the University would respond to reported harm. While the Title IX Coordinator retains oversight of compliance requirements, the University strives to create an ethos that all students, staff, and faculty members have a collective responsibility to create a welcoming, inclusive, and safe community.

The University of Iowa respectfully asks the Department to reflect on the fact that requiring significant changes to policies and procedures has consequence. Consistency over time in the University’s policy and procedures is critical to the safety and wellbeing of students, staff, and faculty. As Institutions of Higher Education (IHE) strive to meet the letter and spirit of the changing requirements, major modifications to the Regulation leads to confusion, destabilization, and an erosion of trust in campus resolution processes. Drastic changes to the definitions and procedures make it nearly impossible to provide timely and effective education of community members. Along with our colleagues in the AAU, we urge that a middle ground be found between past administrations’ divergent guidance and rulemaking, as discussed below.

As an educational and research institution, the University of Iowa is fully committed to free inquiry and vigorous debate. Free expression, academic freedom, and diversity of perspectives are all crucial to the fulfillment of our core mission. The University of Iowa appreciates that the NPRM indicates that the Department remains committed to freedom of speech and academic freedom. The University agrees with our APLU colleagues that the Department should continue to address harassment as defined by law, regulation, and court decisions in accordance with a public university’s obligations regarding speech.

The University of Iowa appreciates that the Department intends that the final regulations be enforced prospectively and not retroactively; this will provide clarity to administrators implementing the Regulation. The University recommends that the required implementation date for the Updated Regulation be no sooner than one year from the date of publication.

§106.2 Definitions.

The NPRM does not include a definition of employee.  IHE have many types of workers, paid and unpaid, with varying appointments in terms of time commitment and involvement in campus activities. Currently, the University of Iowa requires all employees appointed at 50% time or greater to complete a mandated anti-harassment training.

Recommendation: To ensure IHE understand what is necessary to meet the letter and spirt of the Regulation, the Department should clarify what it means by “employee” as it relates to those required to be trained. We ask that the Department consider in its Update Rule narrowing the scope of employee to ensure campus resources are not overstretched by a small percentage of employees whose involvement with campus is very limited.

The University of Iowa appreciates that the Department includes a definition of confidential employee and agrees that information in connection with sex discrimination, including sex-based harassment information received in the course of an employee’s role or duty associated with providing services to students or employees, should remain private. The University agrees that confidential employees should be required to provide information about how to seek resolution options and supportive measures to those who disclose experiencing harm. The University of Iowa values the NPRM’s important inclusion of maintaining the privacy of such disclosures made within an approved research study. 

Recommendation: The Department should work with the Department of Justice to ensure that VAWA and Clery obligations for confidential employees align with Title IX Regulations. Unnecessary tension and confusion are created when IHE receive conflicting rules and guidance about reporting requirements for confidential employees. This tension hinders a coordinated team approach when responding to reports of sex discrimination and sex-based harassment.

§106.8 Designation of coordinator, adoption and publication of nondiscrimination policy and grievance procedures, notice of nondiscrimination, training, and recordkeeping.

The University supports the Department’s efforts to clarify and streamline the requirement to designate a Title IX Coordinator. The University agrees with the Department that allowing for the delegation of responsibilities to designees gives the institution the necessary flexibility to manage the workload while still ensuring that the work is done by someone with the necessary skills and knowledge.  Centralization of Title IX compliance during recent years has improved accountability, simplified internal communications, and provided efficiency in the improvement of policies, procedures, and overall response. It is challenging, individually and organizationally, for Title IX Coordinators to have responsibility without the authority to act. The NPRM ensures there is no decentralization of roles and responsibilities that could result in turf wars, role confusion, and delayed response to harm.

Recommendation: No changes to NPRM.

§106.10 Scope All Forms of Sex Discrimination, Sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.

The explicit Title IX protections against discrimination based on gender identity, sex characteristics, sex-based stereotypes, pregnancy, and marital status are welcomed additional tools in the University’s work to create an inclusive environment that fuels excellence in education, research, and service. The NPRM complements the University’s recent restructuring of the Title IX Office, which ensures the office has a broader scope of responsibility related to sex discrimination and sex-based harassment. The University agrees with its AAU colleagues on the NPRM’s expansion of definitions and protections that make Title IX more consistent with federal jurisprudence.

Recommendation:  No changes to NPRM.

§106.40 Parental, family or marital status; pregnancy or related conditions.

Section (b) (2) of NPRM notes that a recipient must ensure that when any employee is informed of a student’s pregnancy or related conditions by the student or by a person who has a legal right to act on behalf of the student, that the employee must promptly inform the student how to notify the Title IX Coordinator.  It is not clear what the Department means by “any employee.”  Ensuring every employee is trained to respond to this type of disclosure is burdensome when most employees will not receive this type of disclosure. This is further complicated within the context of an academic medical center, such as the one at the University of Iowa. If the requirement is imposed on every employee who receives such a disclosure in the context of medical care, the required action may become repetitive and could burden both the patient and the care provider.  Further, campus constituents have raised concern about this potential requirement as it relates to the evolving landscape related to abortion access. In that context, the requirements in the NPRM could put students and employees at risk for civil or criminal penalties. As the University is subject to the state’s open records laws, strong concern exists that the NPRM requirements will compromise complainants’ privacy.

Recommendation: Given the different employment classifications within IHE, the Department should clarify, and narrow which classifications of employees need to be trained and to make referrals to the Title IX Coordinator. The University agrees with its APLU and AAU colleagues that the Department should carefully delineate the records maintenance obligations for universities when employees receive a disclosure of pregnancy or related conditions, including but not limited to termination of pregnancy and pregnancy loss. The University of Iowa urges the Department to specify in the Updated Regulations that records related to pregnant and parenting students must be kept confidential, and that such a requirement expressly preempts state or local open records laws, including exceptions for release to government agencies conducting investigations.

§106.44 Action by a recipient to operate its education program or activity free from sex discrimination.

Separate and prior to reviewing the NPRM, the University of Iowa engaged campus stakeholders in a discussion about expanding its list of mandated reporters for harassment, discrimination, and sexual harassment. Review of who is considered a mandated reporter was undertaken because of confusion stemming from rotating administrative roles for faculty members; colleges and departments imposing their own additional rules about reporting alleged misconduct; and the noted differences in our sister institutions’ (Iowa State University and Northern Iowa University) respective definitions of mandated reporter. University of Iowa leadership concluded that the campus should expand its definition of mandated reporters to include those in a teaching or classroom instruction role. In reaching this conclusion, University leadership took into consideration a desire to give complainants control over what happens with their information and any next steps the University may take.  Ultimately, changes to the policy were delayed to avoid confusion in the event that the Updated Regulation require a different definition of campus mandated reporter. 

More campus discussion may be needed because research to date is unclear whether reports made through mandated reporting, without complainant consent, leads to more (or less) successful investigation and adjudication of sexual harm (Holland, Corina, & Freyd, 2018)[1].

The NPRM’s differing obligations for employees who learn of sex discrimination affecting students versus employees is confusing, unnecessary, and may lead to mistakes. Additionally, complicated reporting obligations and training requirements will lead to burdensome implementation and will create frustration with the University’s response process. Experience shows that most employees will not receive a disclosure in the course of their employment.

The University of Iowa is grateful for the Department’s changes to Section 106.44(h) giving IHE flexibility to address a full range of possible threats --physical and non-physical-- that a respondent may pose related to both sex-based harassment and sex discrimination.  It is understood that IHE will need to balance the interests and needs of both complainants and respondents when providing supportive measures to minimize burdens on a respondent while ensuring a complainant’s access to the education program or activity.

Recommendation: The Department should provide flexibility for IHE to determine which employees to designate as mandated reporters. The Department should align Title IX reporting requirements with the Clery Act Campus Security Authority requirement. Training should be tied to the role and likelihood that the employee will receive a report of sex discrimination. 

§106.45 Grievance procedures for the prompt and equitable resolution of complaint of sex discrimination.

The definition of “complainant” in §106.2 includes “(2) a person other than a student or employee who is alleged to have been subjected to conduct that could constitute sex discrimination under Title IX and who was participating or attempting to participate in the recipient’s education program or activity when the alleged sex discrimination occurred.” Taken alone, the University would simply interpret that a complainant can be someone other than a student or employee.  However, this interpretation is challenged by references in the preamble and elsewhere in the draft regulations suggesting that such a person is considered a “third party” by the Department. There are other references to “third party” in the preamble, suggesting that it means a person “who does have a legal right to act on behalf of the student.” Further, there is confusion over whether the Department intends that someone who merely observes or becomes aware of potential discrimination can bring forward an actionable complaint (what we have traditionally referred to as a “third party report” or “third party complaint”).

Recommendation: The Department should provide definitional clarity about what it means by “third party,” and who is able to initiate an actionable complaint.

§106.46 Grievance procedures for the prompt and equitable resolution of complaints of sex-based harassment involving student complainants or student respondents at postsecondary institutions.

On review of the NPRM, the University’s Title IX Team considered and noted that the processes across criminal, civil, and education systems generally “run with” the respondent. The identity or status (student, employee, etc.) of the complainant generally does not determine what process is used. The language in §106.46 that applies additional process beyond §106.45 whenever a respondent or a complainant is a student creates Constitutional due process concerns and confusion regarding the application of other relevant frameworks, including those pertaining to employees.

While live hearings for adjudications involving student respondents have long been in place at the University of Iowa, employee matters were typically not resolved through a live hearing prior to the 2020 Regulation. The Department should simplify the process and reduce the need for multiple procedures while allowing IHE the flexibility needed to fulfill their obligations as employers, sometimes subject to collective bargaining agreements and other legal constraints external to the Title IX process.

The NPRM states that IHE should provide “parties an appeal from a determination that sex-based harassment occurred, and from a postsecondary institution’s dismissal of a complaint or any allegations therein…” It is not clear whether the Department seeks to limit what may be appealed.

Recommendation: The University asks that the Department apply the more significant process established in §106.46 where the respondent is a student, and otherwise apply the more efficient standard process established in §106.45, which is more appropriate to cases involving employee respondents. The Department should clarify whether IHE may include additional outcomes other than a determination as appealable matters.  For example, may IHE allow that a sanction be appealed?

§106.71 Retaliation.

The NPRM includes prohibition on peer retaliation, defining it as retaliation by a student against another student. Does this restricted language mean the concept of peer retaliation should not be applied or considered in an employment context? If peer retaliation by non-supervisory employees is actionable under the Regulation, this may affect the IHE’s role as employers with respect to Title VII. For public IHE, the issue becomes more challenging when the alleged retaliatory actions fall within the scope of constitutional rights such as freedom of association.

The Department indicates in the preamble that retaliation complaints may be made by any person “entitled to make a complaint of sex discrimination.” Is this meant to exclude a respondent or witness from making a claim of retaliation? A respondent, for example, may also assert they have been subject to intimidation or threats that interfered with rights or privileges guaranteed to them under Title IX (due process rights).

Recommendation: The Department should clarify what it means by peer retaliation within the employment context and whether Respondents may make a claim of retaliation as defined by the Updated Regulation.

Directed Questions

1. Interaction with Family Educational Rights and Privacy Act (FERPA) (proposed 106.6(e).

Recommendation: No changes to NPRM.

2. Recipient’s obligation to provide an educational environment free from sex discrimination 106.44-106.46

Recommendation:  See comments and recommendation above. 

3. Single investigator (proposed §106.45(b)(2)).

Prior to the 2020 Regulation, the University of Iowa used a single investigator model for resolving student sexual misconduct complaints where suspension or expulsion was not a possible sanction. However, the University used a hearing model when the student could be suspended or expelled if the allegations were founded.  Prior to the 2020 Regulation, the University also used a single investigator model to resolve sexual harassment complaints against an employee. It currently uses a single investigator model to resolve sex and other protected-class discrimination and harassment complaints.

While it is likely that the University of Iowa would use a single investigator model for resolving sex discrimination and some sex-based harassment complaints as allowed in the NPRM, more campus dialogue will need to occur. For example, it will be beneficial to explore what constitutes “a hearing” and whether a hybrid approach might be feasible for complaints where the NPRM section 106.46 would be applicable. A hybrid approach may involve a separate decision-maker evaluating the matter after an investigation is complete. The decision-maker could meet with the parties separately and could be responsible for credibility assessments and determinations with respect to university policy. Such a model is referenced in the NPRM. However, more consideration will be necessary to assess this hybrid approach given other legal requirements and applicable case law. While the current Regulation has converted the University’s adjudication procedure into a quasi-judicial process or mini civil trial, the University community has found value in tiered neutral fact gathering and separate decision-making. The University perceives value in a tiered approach as a means for protecting against bias, and thereby gaining trust from all participants in the process.

Recommendation:  Give IHE the flexibility to choose the appropriate complaint resolution procedure that meets their needs, addresses their priorities, and reflects their resources.

4. Standard of proof (proposed 106.45(h)(1))

Applying a consistent standard of proof for all community members is most fair. Imposing more than a preponderance standard would systematically favor the respondent, rendering the resolution process no longer equitable. In comparable cases, civil court proceedings apply the preponderance standard, and not the clear and convincing standard. The Title IX process in IHE does not impose criminal consequences, so a higher standard of proof is not warranted. Moreover, the University lacks the tools, such as subpoena power, to seek the type of evidence that would be needed to reliably meet a higher standard of proof. As a result, the University is unable to mandate testimony and disclosure of certain types of evidence, and to control what would be considered the discovery process in a judicial forum. Applying a higher standard of proof to determine discrimination based on sex than is applied to determine other protected class discrimination would create inconsistencies concerning to the campus community and potentially challenging to the University’s legal compliance.

Recommendation: No changes to NPRM.


Thank you for the opportunity to submit comments on these Regulations.



Monique G. DiCarlo, MSW
Title IX Coordinator, Director Title IX & Gender Equity

Office of Institutional Equity, University of Iowa


[1]Holland, K. J., Cortina, L. M., & Freyd, J. J. (2018). Compelled disclosure of college sexual assault. American Psychologist, 73(3), 256–268.