Sanctions and Remedies

1. Sanctions Upon Respondent

   1. A respondent must be sanctioned only after a fair process has determined that the respondent has perpetrated sexual harassment. (p. 30242).
   2. IHEs are not required to implement certain sanctions: The regulations do not mandate suspension or expulsion as the only appropriate sanction following a determination of responsibility against a respondent; IHEs deserve flexibility to design sanctions that best reflect the needs and values of the IHE’s educational mission and community. (p. 30407).
   3. Sanctions do not have to be proportional to conduct: The regulations do not impose a standard of proportionality on disciplinary sanctions. (p. 30274).
   4. In considering sanctions, an IHE can consider mitigating circumstances: Although no type of sexual harassment, with the exception of fondling (fn. 631), depends on the intent or purpose of the respondent, the respondent’s lack of comprehension that the conduct constituting sexual harassment violates the bodily or emotional autonomy and dignity of a complainant may (in an IHE’s discretion) factor into the sanction decision. (p. 30144).
   5. Zero Tolerance Policies or Restorative Justice: The regulations do not preclude an IHE from adopting a zero tolerance policy, or using a restorative justice model after a determination of responsibility finds a respondent responsible. (pp. 30383, 30406).
   6. Sanctions cannot be effective until after appeal, if an appeal is made by either party: The Department believes that in order for an appeal, by either party, to be fully effective, the IHE must wait to act on the determination regarding responsibility while maintaining the status quo between the parties through supportive measures designed to ensure equal access to education. (p. 30393).

2. Remedies to Complainant

   1. IHE must provide remedies to a complainant where a determination of responsibility for sexual harassment has been made against the respondent. § 106.45(b)(1)(i).
   2. Remedies must be designed to restore or preserve equal access to the IHE’s education program or activity. Such remedies may include the same individualized services described in § 106.30 as ‘‘supportive measures’’; however, remedies need not be non-disciplinary or non-punitive, and need not avoid burdening the respondent. See §106.45(b)(1)(i).
   3. Remedies may overlap with sanctions: For instance, the IHE may impose a unilateral no-contact order on the respondent as part of a sanction that also may constitute a remedy. (p. 30425).
   4. Remedies are not required for respondents: The Department declines to require remedies for respondents in situations where a complainant is found to have brought a false allegation. (p. 30246).
   5. Title IX Coordinator implements remedies: [W]here the final determination has indicated that remedies will be provided, the complainant can then communicate separately with the Title IX Coordinator to discuss what remedies are appropriately designed to preserve or restore the complainant’s equal access to education. (p. 30520).
   6. IHEs are prohibited from disclosing remedies to respondents: Remedies (which do not directly affect the respondent) must not be disclosed to the respondent. (p. 30425). Thus, written determinations should preserve confidentiality concerning remedies as much as possible. For instance, if an IHE wishes to change the housing arrangement of the complainant as part of a remedy, the written determination should simply state that remedies will be provided to the complainant; the complainant would then communicate separately with the Title IX Coordinator to discuss remedies. (p. 30425).