Definitions and Key Terms

1. I. Section §106.30 Definitions:

   1. Actual knowledge means notice of sexual harassment or allegations of sexual harassment to an IHE’s Title IX Coordinator or any official of the IHE who has authority to institute corrective measures on behalf of the IHE…. Imputation of knowledge based solely on vicarious liability or constructive notice is insufficient to constitute actual knowledge. This standard is not met when the only official of the IHE with actual knowledge is the respondent. The mere ability or obligation to report sexual harassment or to inform a student about how to report sexual harassment, or having been trained to do so, does not qualify an individual as one who has authority to institute corrective measures on behalf of the IHE. ‘‘Notice’’ as used in this paragraph includes, but is no limited to, a report of sexual harassment to the Title IX Coordinator as described in § 106.8(a).
   2. Complainant means an individual who is alleged to be the victim of conduct that could constitute sexual harassment.
   3. Consent. The Assistant Secretary will not require IHEs to adopt a particular definition of consent with respect to sexual assault, as referenced in this section.
      • Please note:
      1. IHEs cannot shift the burden to a respondent to prove consent, or shift the burden to a complainant to prove absence of consent. (p. 30125).
      2. IHEs must clearly define consent and must apply that definition consistently. (p. 30125).
      3. Title IX Personnel must be trained on how to apply definitions used by the IHE with respect to consent (or the absence of negation of consent) consistently, impartially, and in accordance with the other provisions of § 106.45. (p. 30125).
   4. Formal complaint means a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the IHE investigate the allegation of sexual harassment. At the time of filing a formal complaint, a complainant must be participating in or attempting to participate in the education program or activity of the IHE with which the formal complaint is filed. A formal complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail, by using the contact information required to be listed for the Title IX Coordinator under § 106.8(a), and by any additional method designated by the IHE. As used in this paragraph, the phrase ‘‘document filed by a complainant’’ means a document or electronic submission (such as by electronic mail or through an online portal provided for this purpose by the IHE) that contains the complainant’s physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint. Where the Title IX Coordinator signs a formal complaint, the Title IX Coordinator is not a complainant or otherwise a party under this part or under § 106.45, and must comply with the requirements of this part, including § 106.45(b)(1)(iii).
      • Please Note:
      1. Examples of individuals, besides students and employees, who may be “participating in or attempting to participate in the education program or activity”:
         1. Alumni: A complainant who has graduated may still be ‘‘attempting to participate’’ in the IHE’s education program or activity; for example, where the complainant has graduated from one program but intends to apply to a different program, or where the graduated complainant intends to remain involved with a IHE’s alumni programs and activities. (p. 30318).
         2. Leave of absence: A complainant who is on a leave of absence may be ‘‘participating or attempting to participate’’ in the IHE’s education program or activity; for example, such a complainant may still be enrolled as a student even while on leave of absence, or may intend to re-apply after a leave of absence and thus is still ‘‘attempting to participate’’ even while on a leave of absence. (p. 30318).
         3. Desire to re-enroll: A complainant who has left school because of sexual harassment, but expresses a desire to re-enroll if the IHE appropriately responds to the sexual harassment, is ‘‘attempting to participate’’ in the IHE’s education program or activity. (p. 30318).
         4. Admitted students: A complainant who has applied for admission and has been admitted is attempting to participate in the education program or activity of the IHE. (p. 30187).
         5. Applicants: A complainant who has applied for admission may be attempting to participate in the education program or activity. (p.30198, fn. 869).
   5. Respondent means an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.
      1. For an unknown/unidentified respondent: An IHE must investigate a complainant’s formal complaint even if the complainant does not know the respondent’s identity, because an investigation might reveal the respondent’s identity, at which time the IHE would be obligated to send both parties written notice. (p. 30318).
   6. Sexual harassment means conduct on the basis of sex that satisfies one or more of the following:
      1. An employee of the IHE conditioning the provision of an aid, benefit, or service of the IHE on an individual’s participation in unwelcome sexual conduct;
      2. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the IHE’s education program or activity.
         • Please Note:
         1. Elements of severity, pervasiveness, and objective offensiveness must be evaluated in light of the known circumstances and depend on the facts of each situation, but must be determined from the perspective of a reasonable person standing in the shoes of the complainant. (p. 30156).
         2. The Department believes…that severity and pervasiveness are needed elements to ensure that Title IX’s nondiscrimination mandate does not punish verbal conduct in a manner that chills and restricts speech and academic freedom, and that IHEs are not held responsible for controlling every stray, offensive remark that passes between members of the IHE’s community. (p. 30154).
         3. No concrete injury is required to conclude that serious harassment would deprive a reasonable person in the complainant’s position of the ability to access the IHE’s education program or activity on an equal basis with persons who are not suffering such harassment. (p.30170).
      3. ‘‘Sexual assault’’ as defined in 20 U.S.C. 1092(f)(6)(A)(v):
         1. The term “sexual assault” means an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation. The definition of “sexual assault” includes rape, fondling, incest, and statutory rape. See https://www2.ed.gov/admins/lead/safety/handbook.pdf.
            • Please note:
            1. The Federal Bureau of Investigation (FBI) currently has two crime reporting systems: the Summary Reporting System (SRS), and the National Incident Based Reporting System (NIBRS). The current Clery Act regulations, 34 CFR 668.46(a), direct IHEs to look to the SRS for a definition of rape, and to the NIBRS for a definition of fondling, statutory rape, and incest as the offenses falling under ‘‘sexual assault.’’ (p. 30176, fn. 791).
               1. SRS: https://www.fbi.gov/file-repository/ucr/ucr-srs-user-manual-v1.pdf/view
               2. NIBRS: https://ucr.fbi.gov/nibrs/2011/resources/nibrs-offense-definitions
            2. The FBI has announced it will be retiring the SRS on January 1, 2021, and moving entirely to the NIBRS. (p. 30174).
      4. ‘‘Dating violence’’ as defined in 34 U.S.C. 12291(a)(10):
         1. The term “dating violence” means violence committed by a person— 10
            1. who is or has been in a social relationship of a romantic or intimate nature with the victim; and
            2. where the existence of such a relationship shall be determined based on a consideration of the following factors:
               1. The length of the relationship.
               2. The type of relationship.
               3. The frequency of interaction between the persons involved in the relationship.
      5. ‘‘Domestic violence’’ as defined in 34 U.S.C. 12291(a)(8):
         1. The term “domestic violence” includes felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies, or by any other person against an adult or youth victim who is protected from that person's acts under the domestic or family violence laws of the jurisdiction.
      6. “Stalking’’ as defined in 34 U.S.C. 12291(a)(30):
         1. The term “stalking” means engaging in a course of conduct directed at a specific person that would cause a reasonable person to—
            1. fear for his or her safety or the safety of others; or
            2. suffer substantial emotional distress.
   7. Supportive measures means nondisciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent before or after the filing of a formal complaint or where no formal complaint has been filed. Such measures are designed to restore or preserve equal access to the IHE’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the IHE’s educational environment, or deter sexual harassment. Supportive measures may include counseling, extensions of deadlines or other course-related 11adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures. The IHE must maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the ability of the IHE to provide the supportive measures. The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures. Please also see Section 6 on Supportive Measures.
   8. Elementary and secondary school, as used in §§ 106.44 and 106.45, means a local educational agency (LEA), as defined in the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act, a preschool, or a private elementary or secondary school.
   9. Postsecondary institution means an institution of graduate higher education as defined in § 106.2(l), an institution of undergraduate higher education as defined in § 106.2(m), an institution of professional education as defined in § 106.2(n), or an institution of vocational education as defined in § 106.2(o).

2. Other Key Terms:

   1. Advisor: Parties must be afforded the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice, who may be, but is not required to be, an attorney. §106.45(b)(3)(iv). Only an advisor may conduct cross-examination on behalf of the party at a hearing. §106.45(b)(6)(i). If a party does not have an advisor present at the live hearing, the IHE must provide without fee or charge to that party, an advisor of the IHE’s choice, who may be, but is not required to be, an attorney, to conduct cross examination on behalf of that party. Id.
   2. Confidential: The IHE must keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as may be permitted by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder. §106.71(a).
   3. Clear and Convincing: standard of evidence that is not formally defined in the regulations. The preamble refers to: “having confidence that a conclusion is based on facts that are highly probable to be true.” (p. 30386).
   4. Deliberate Indifference: An IHE will be considered deliberately indifferent only if its response to sexual harassment is clearly unreasonable in light of the known circumstances. §106.44.
   5. Directly Related: ‘‘directly related to the allegations’’ may encompass a broader universe of evidence than evidence that is ‘‘relevant.” (p. 30310).
   6. Education program or activity includes locations, events, or circumstances over which the IHE exercised substantial control over both the respondent and the context in which the sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution. § 106.44(a). Please also see Section 3 on Education Program or Activity.
   7. Informal resolution: may encompass a broad range of conflict resolution strategies, including, but not limited to, arbitration, mediation, or restorative justice. (p. 30401). Please also see Section 7 on Informal Resolution.
   8. Preponderance of the Evidence: standard of evidence that is not formally defined in the regulations. The preamble refers to: “concluding that a fact is more likely than not to be true.” (p. 30373).
   9. Prompt Timeframe: IHEs must include reasonably prompt time frames for the conclusion of the grievance process, including reasonably prompt time frames for filing and resolving appeals and informal resolution processes if the IHE offers informal resolution processes. § 106.45(b)(1)(v).
      1. Good cause for delay: The process must allow for the temporary delay of the grievance process or the limited extension of time frames for good cause with written notice to the complainant and the respondent of the delay or extension and the reasons for the action. Good cause may include considerations such as the absence of a party, a party’s advisor, or a witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities. §106.45 (b)(1)(v).
      2. Colorado State Law: §23-5-146(3)(d)(I) states an IHE must make a good faith effort to complete an investigation or adjudicative process, excluding any appeals, within an average of sixty to ninety days, without jeopardizing the rights of a complainant or responding party. The procedure may include a process that allows for an extension of these time frames for good cause with prior written notice of the delay and the reason for the delay to the complainant and the responding party.
   10. Recipient means any State or political subdivision thereof, or any instrumentality of a State or political subdivision thereof, any public or private agency, institution, or organization, or other entity, or any person, to whom Federal financial assistance is extended directly or through another recipient and which operates an education program or activity which receives such assistance, including any subunit, successor, assignee, or transferee thereof. (34 CFR 106.2(i); p. 30117, fn. 521).
       • Please note that these training materials refer to Institution of Higher Education, or “IHE,” instead of the term “recipient.”
   11. Relevance: Not formally defined in the regulations. Please also see Section 8 on Relevance.
   12. Sex (On the Basis of Sex): Not formally defined in the regulations. The preamble states that anyone may experience sexual harassment, irrespective of gender identity or sexual orientation. (p. 30178).
   13. Title IX Coordinator: the individual(s) an IHE designates and authorizes to coordinate its efforts to comply with its responsibilities. § 106.8(a).
   14. Title IX Personnel: Title IX Coordinators, investigators, decision-makers, and persons who facilitate informal resolutions. (p.30527).
   15. Retaliation: means intimidation, threats, coercion, or discrimination against any individual for the purpose of interfering with any right or privilege secured by Title IX or the regulations, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this part. § 106.71(a).