Education Program or Activity

1. “Education program or activity” includes all incidents of sexual harassment occurring on an IHE’s campus. (p. 30196).
   1. For example: an IHE must respond to alleged sexual harassment between two students in one student’s dormitory room provided by the IHE. (p. 30093).
2. But there is no bright-line geographic test. (p. 30204-205). “Education program or activity” also includes incidents of sexual harassment off campus if any of the three conditions are met:
   1. If the off-campus incident occurs as part of the IHE’s ‘‘operations’’ pursuant to 20 U.S.C. 1687 and 34 CFR 106.2(h);
      1. For example, “[p]rogram or activity” encompasses “all of the operations of” IHEs, and such “operations” may certainly include computer and internet networks, digital platforms, and computer hardware or software owned or operated by, or used in the operations of, the IHE. (p. 30202).
   2. If the IHE exercised substantial control over the respondent and the context of alleged sexual harassment that occurred off campus pursuant to § 106.44(a);
      1. Factors such as whether the IHE funded, promoted, or sponsored the event or circumstance where the alleged harassment occurred . . . may be helpful or useful for IHEs to consider . . . to determine the scope of an IHE’s program or activity, [but] no single factor is determinative. (p. 30197).
      2. For example, a teacher’s sexual harassment of a student is likely to constitute sexual harassment ‘‘in the program’’ of the school even if the harassment occurs off campus. (p. 30198).
      3. As another example, a student using a personal device to perpetrate online sexual harassment during class time may constitute a circumstance over which the IHE exercises substantial control. (p.30202).
   3. If a sexual harassment incident occurs at an off-campus building owned or controlled by a student organization officially recognized by a postsecondary institution pursuant to § 106.44(a). (p. 30196).
      1. Please note re: officially recognized student organizations:
         1. Where a postsecondary institution has officially recognized a student organization, and sexual harassment occurs in an off campus location not owned or controlled by the student organization yet involving members of the officially recognized student organization, the IHE’s Title IX obligations will depend on whether the IHE exercised substantial control over the respondent and the context of the harassment, or whether the circumstances may otherwise be determined to have been part of the ‘‘operations of’’ the IHE. (p 30197).
         2. As part of the process for official recognition, a postsecondary institution may require a student organization that owns or controls a building to agree to abide by the IHE’s Title IX policy and procedures under these final regulations, including as to any misconduct that occurs in the building owned or controlled by a student organization. (p. 30197).

Considerations when the alleged sexual harassment occurs both in and outside of the education program or activity:

1. In situations involving some allegations of conduct that occurred in an education program or activity, and some allegations of conduct that did not, the IHE must investigate the allegations of conduct that occurred in the IHE’s education program or activity. (p. 30198).
2. Section 106.45(b)(3)(i) provides that a mandatory dismissal of allegations in a formal complaint about conduct not occurring in the IHE’s education program or activity is ‘‘for purposes of title IX or [34 CFR part 106]; such dismissal does not preclude action under another provision of the IHE’s code of conduct.’’ (p. 30201).
3. For example, if a student is sexually assaulted outside of an education program or activity, but subsequently suffers Title IX sexual harassment in an education program or activity, then these final regulations apply to the latter act of sexual harassment, and the IHE may choose to address the prior assault through its own code of conduct. Nothing in the final regulations prohibits an IHE from resolving allegations of conduct outside the IHE’s education program or activity by applying the same grievance process required under § 106.45 for formal complaints of Title IX sexual harassment, even though such a process would not be required under Title IX or these final regulations. Thus, an IHE is not required by these final regulations to inefficiently extricate conduct occurring outside an education program or activity from conduct occurring in an education program or activity arising from the same facts or circumstances in order to meet the recipient’s obligations with respect to the latter. (p. 30198).