[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 1017 Introduced in Senate (IS)]
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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 Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Ensuring Fairness for Students
Act''.
SEC. 2. ENSURING DUE PROCESS IN TITLE IX CLAIMS.
Section 901 of the Education Amendments of 1972 (20 U.S.C. 1681) is
amended by adding at the end the following:
``(d) Ensuring Due Process.--
``(1) Sexual harassment.--In this section, the term `sexual
harassment' has the meaning given the term in section 106.30 of
title 34, Code of Federal Regulations, or any successor
regulation.
``(2) Implementation requirement.--Not later than 12 months
after the date of enactment of the Ensuring Fairness for
Students Act, each educational institution to which this
section applies shall implement a grievance process to
investigate and adjudicate formal complaints of sexual
harassment that incorporates due process principles, treats all
parties fairly, and reaches reliable responsibility
determinations.
``(3) Grievance process.--Each grievance process
implemented under paragraph (2) shall comply with each of the
following:
``(A) Give both parties--
``(i) written notice of the allegation;
``(ii) an equal opportunity to select an
advisor of the party's choice (who may be, but
does not need to be, an attorney); and
``(iii) an equal opportunity to submit and
review evidence throughout the investigation of
the allegation.
``(B) Use personnel who are trained in compliance
with requirements under this title to objectively
evaluate all relevant evidence without prejudgment of
the facts at issue and free from conflicts of interest
or bias for or against either party.
``(C) Protect both parties' privacy by requiring a
party's written consent before using the party's
medical, psychological, or similar treatment records
during the grievance process.
``(D) Obtain both parties' voluntary, written
consent before using any kind of informal resolution
process, such as mediation or restorative justice.
``(E) Not use an informal resolution process, as
described in subparagraph (D), in cases where an
employee of the educational institution is alleged to
have sexually harassed a student.
``(F) Apply a presumption that the respondent is
not responsible during the grievance process, so that
the educational institution bears the burden of proof
and the standard of evidence is applied correctly.
``(G) Ensure the decision-maker is not the same
person as the investigator or the Title IX Coordinator
(who is the individual designated as a responsible
employee in section 106.8(a) of title 34, Code of
Federal Regulations, as such section is in effect on
the date of enactment of the Ensuring Fairness for
Students Act).
``(H) For educational institutions that are--
``(i) postsecondary institutions, hold a
live hearing and--
``(I) allow cross-examination by
the advisors of the parties; and
``(II) not permit cross-examination
by the parties personally; and
``(ii) elementary schools or secondary
schools, provide an opportunity for each party
to submit written questions for the other party
and any witness to answer.
``(I) Offer both parties an equal opportunity to
appeal.
``(J) Protect any individual, including
complainants, respondents, and witnesses, from
retaliation for reporting sexual harassment or
participating (or refusing to participate) in the
grievance process.
``(K) Document and keep records of all sexual
harassment reports and investigations.''.
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