Supportive Measures

1. Definition of Supportive Measures:

   1. §106.30(a) defines “supportive measures” as: 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.
   2. 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.
   3. Supportive measures may include:
      1. counseling,
      2. extensions of deadlines or other course-related adjustments,
      3. modifications of work or class schedules,
      4. campus escort services,
      5. mutual restrictions on contact between the parties,
      6. changes in work or housing locations,
      7. leaves of absence,
      8. increased security and monitoring of certain areas of the campus, and
      9. other similar measures.

2. Responsibility for offering/coordinating supportive measures.

   1. The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures. (p. 30310).

3. Disclosure of available supportive measures.

   1. The IHE’s grievance process must describe the range of supportive measures available to complainants and respondents. §106.45(b)(1)(ix).

4. When supportive measures must be offered.

   1. Supportive measures must be offered with or without a formal complaint. No written document is required to put a school on notice (i.e., convey actual knowledge) of sexual harassment triggering the IHE’s response obligations under § 106.44(a). (p. 30267). The Title IX Coordinator must promptly contact the complainant to discuss the availability of supportive measures as defined in § 106.30, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant the process for filing a formal complaint. §106.44(a).
   2. Process is intended to be interactive: The process for offering supportive measures after considering the complainant’s wishes is an interactive process that is not unlike the interactive process that the ADA (Americans with Disabilities Act) requires. (p. 30494).

5. Supportive measures must be offered to complainants and may be offered to respondents:

   1. The final regulations require IHEs to offer supportive measures to complainants and permit IHEs to offer supportive measures to respondents. (p. 30230).

6. Regulations do not require disclosure of available off-campus supportive resources:

   1. The Department declines to require IHEs to list off-campus supportive resources for complainants, respondents, or both, though the final regulations do not prohibit an IHE from choosing to do this. (p. 30245).

7. Considerations when offering supportive measures:

   1. The Title IX Coordinator must consider the complainant’s wishes. § 106.44(a).
   2. Supportive measures do not have to be ‘‘proportional to the harm alleged’’ or constitute the ‘‘least burdensome measures’’ possible. (p. 30183).
   3. However, supportive measures cannot impose an unreasonable burden on the other party. (p. 30181). Considerations when examining the burdens on parties:
      1. Unreasonable burden applies to access to all educational opportunities and benefits: Whether a supportive measure meets the § 106.30 definition also includes analyzing whether a respondent’s access to the array of educational opportunities and benefits offered by the IHE is unreasonably burdened. Changing a class schedule, for example, may more often be deemed an acceptable, reasonable burden than restricting a respondent from participating on a sports team, holding a student government position, participating in an extracurricular activity, and so forth. (p. 30182).
      2. Supportive measures should not amount to sanctions: If an IHE has listed ineligibility to play on a sports team or hold a student government position, for example, as a possible disciplinary sanction that may be imposed following a determination of responsibility, then the IHE may not take that action against a respondent without first following the § 106.45 grievance process. (p. 30182).
      3. Give consideration to the scope of supportive measures: For instance, where both parties are athletes and sometimes practice on the same field, consideration must be given to the scope of a no-contact order that deters sexual harassment, without unreasonably burdening the other party, with the goal of restricting contact between the parties without requiring either party to forgo educational activities. It may be unreasonably burdensome to prevent respondents from attending extra-curricular activities that a IHE offers as a result of a one-way no contact order prior to being determined responsible; similarly, it may be unreasonably burdensome to restrict a complainant from accessing campus locations in order to prevent contact with the respondent. (p.30184).
      4. One-way no contact order may be appropriate in limited circumstances: §106.30 does not mean that one-way no-contact orders are never appropriate. A fact-specific inquiry is required into whether a carefully crafted no-contact order restricting the actions of only one party would meet the § 106.30 definition of supportive measures. For example, if an IHE issues a one-way no-contact order to help enforce a restraining order, preliminary injunction, or other order of protection issued by a court, or if a one-way no-contact order does not unreasonably burden the other party, then a one-way no contact order may be appropriate. . . . (p. 30184).

8. Documentation required for supportive measures:

   1. IHE must document supportive measures provided: For each response required under § 106.44, an IHE must create, and maintain for a period of seven years, records of any actions, including any supportive measures, taken in response to a report or formal complaint of sexual harassment. § 106.45(b)(10)(ii).
   2. IHE must document when no supportive measures provided: If an IHE does not provide a complainant with supportive measures, then the IHE must document the reasons why such a response was not clearly unreasonable in light of the known circumstances under §106.45(b)(10)(ii). (p. 30189).

9. Supportive measures must be kept confidential:

   1. 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. § 106.30.

10. Length of supportive measures:

    1. IHEs retain discretion as to whether to continue supportive measures even after a determination of non-responsibility. (p. 30183).

11. Supportive measures when an IHE has no jurisdiction:

    1. Nothing in the final regulations prevents IHEs from initiating a student conduct proceeding or offering supportive measures to address sexual harassment against a person outside the United States. (p. 30206). 29

12. Although not included in the regulations as supportive measures, the regulations allow emergency removal and administrative leave as potential actions an IHE may take in response to a formal complaint:

    1. A.Emergency removal: Nothing precludes an IHE from removing a respondent from the IHE’s education program or activity on an emergency basis, provided that the IHE undertakes an individualized safety and risk analysis, determines that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of sexual harassment justifies removal, and provides the respondent with notice and an opportunity to challenge the decision immediately following the removal. § 106.44(c).
       • Please note:
       1. This provision may not be construed to modify any rights under the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, or the Americans with Disabilities Act.
    2. Administrative leave: These regulations do not preclude IHEs from placing a non-student employee respondent on administrative leave during the pendency of a grievance process that complies with these regulations.
       • Please note:
       1. This provision shall not be construed to modify any rights under Section 504 of the Rehabilitation Act of 1973 (Section504)or the Americans with Disabilities Act (ADA). Thus, administrative leave may occur, but only to the extent that it conforms with the requirements of Section 504 and the ADA. See §106.44(d).
       2. Administrative leave for non-student employees during the pendency of an investigation under § 106.45 could be with pay (or benefits) or without pay (or benefits). (p. 30326).
       3. Administrative leave for student-employees is not necessarily prohibited if the leave does not violate other regulatory provisions. Administrative leave may jeopardize a student-employee’s access to educational benefits and opportunities in a way that a non-student employee’s access to education is not jeopardized. Accordingly, administrative leave is not always appropriate for student-employees. (p. 30237).