What This Bill Does
This bill changes the rules for how schools handle sexual harassment complaints. Schools must create a fair process that gives both the person accused and the person making the complaint equal rights throughout the investigation.
Who It Affects
Educational institutions (schools and colleges) that must follow Title IX, the federal law that bans sex discrimination in education.
Key Provisions
• Schools must start using a fair complaint process within 12 months that treats both parties fairly and reaches reliable decisions about responsibility. (Sec. 2(2))
• Both the person accused and the person making the complaint must get written notice of allegations, pick an advisor to help them, and have equal chances to see evidence. (Sec. 2(3)(A))
• Investigators must be trained, fair, and have no bias for or against either person. (Sec. 2(3)(B))
• Schools cannot use medical, psychological or similar records without written permission from both sides. (Sec. 2(3)(C))
• The person accused is presumed not responsible unless proven otherwise, meaning the school bears the burden of proof. (Sec. 2(3)(F))
• College hearings must be live with advisors doing cross-examination, while elementary and middle schools must allow written questions instead. (Sec. 2(3)(H))
• Schools must protect anyone from retaliation for reporting harassment or participating in the process. (Sec. 2(3)(J))
What Changes
Schools must put new fairness rules in place for sexual harassment investigations within 12 months of this law passing.
Important Definitions
Sexual harassment has the meaning given in federal education regulations, section 106.30 of title 34, Code of Federal Regulations.
II
118TH CONGRESS
1ST SESSION
S. 1017
To amend title IX of the Education Amendments of 1972 to ensure due
process in grievance proceedings.
IN THE SENATE OF THE UNITED STATES
MARCH 28, 2023
Mr. KENNEDY introduced the following bill; which was read twice and referred
to the Committee on Health, Education, Labor, and Pensions
A BILL
To amend title IX of the Education Amendments of 1972
to ensure due process in grievance proceedings.
Be it enacted by the Senate and House of Representa-
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tives of the United States of America in Congress assembled,
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SECTION 1. SHORT TITLE.
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This Act may be cited as the ‘‘Ensuring Fairness for
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Students Act’’.
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SEC. 2. ENSURING DUE PROCESS IN TITLE IX CLAIMS.
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Section 901 of the Education Amendments of 1972
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(20 U.S.C. 1681) is amended by adding at the end the
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following:
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‘‘(d) ENSURING DUE PROCESS.—
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•S 1017 IS
‘‘(1) SEXUAL
HARASSMENT.—In this section,
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the term ‘sexual harassment’ has the meaning given
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the term in section 106.30 of title 34, Code of Fed-
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eral Regulations, or any successor regulation.
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‘‘(2) IMPLEMENTATION
REQUIREMENT.—Not
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later than 12 months after the date of enactment of
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the Ensuring Fairness for Students Act, each edu-
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cational institution to which this section applies shall
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implement a grievance process to investigate and ad-
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judicate formal complaints of sexual harassment
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that incorporates due process principles, treats all
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parties fairly, and reaches reliable responsibility de-
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terminations.
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‘‘(3) GRIEVANCE
PROCESS.—Each grievance
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process implemented under paragraph (2) shall com-
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ply with each of the following:
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‘‘(A) Give both parties—
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‘‘(i) written notice of the allegation;
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‘‘(ii) an equal opportunity to select an
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advisor of the party’s choice (who may be,
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but does not need to be, an attorney); and
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‘‘(iii) an equal opportunity to submit
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and review evidence throughout the inves-
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tigation of the allegation.
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•S 1017 IS
‘‘(B) Use personnel who are trained in
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compliance with requirements under this title to
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objectively evaluate all relevant evidence without
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prejudgment of the facts at issue and free from
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conflicts of interest or bias for or against either
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party.
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‘‘(C) Protect both parties’ privacy by re-
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quiring a party’s written consent before using
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the party’s medical, psychological, or similar
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treatment records during the grievance process.
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‘‘(D) Obtain both parties’ voluntary, writ-
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ten consent before using any kind of informal
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resolution process, such as mediation or restor-
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ative justice.
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‘‘(E) Not use an informal resolution proc-
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ess, as described in subparagraph (D), in cases
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where an employee of the educational institu-
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tion is alleged to have sexually harassed a stu-
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dent.
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‘‘(F) Apply a presumption that the re-
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spondent is not responsible during the grievance
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process, so that the educational institution
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bears the burden of proof and the standard of
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evidence is applied correctly.
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‘‘(G) Ensure the decision-maker is not the
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same person as the investigator or the Title IX
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Coordinator (who is the individual designated
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as a responsible employee in section 106.8(a) of
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title 34, Code of Federal Regulations, as such
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section is in effect on the date of enactment of
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the Ensuring Fairness for Students Act).
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‘‘(H) For educational institutions that
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are—
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‘‘(i) postsecondary institutions, hold a
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live hearing and—
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‘‘(I) allow cross-examination by
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the advisors of the parties; and
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‘‘(II) not permit cross-examina-
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tion by the parties personally; and
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‘‘(ii) elementary schools or secondary
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schools, provide an opportunity for each
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party to submit written questions for the
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other party and any witness to answer.
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‘‘(I) Offer both parties an equal oppor-
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tunity to appeal.
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‘‘(J) Protect any individual, including com-
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plainants, respondents, and witnesses, from re-
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taliation for reporting sexual harassment or
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•S 1017 IS
participating (or refusing to participate) in the
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grievance process.
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‘‘(K) Document and keep records of all
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sexual harassment reports and investigations.’’.
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Æ
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