Title IX Regulations in the Study Abroad Context

The Department listed two study abroad examples in the preamble to the final rule. In both examples, the institution has a responsibility to address a sex-based hostile environment in its education program or activity within the United States even though the “conduct alleged to be contributing to the hostile environment occurred outside of the education program or activity or outside of the United States.” 

The Department clarifies in the preamble that conduct occurring outside the United States in a study abroad program is not governed by Title IX, but goes on to say in the preamble that “if a student returns to the United States and conduct that occurred in a study abroad program contributes to a hostile environment in the United States, that conduct may be relevant and considered by the recipient so that it can address the sex discrimination occurring within its program in the United States.”

Study abroad examples from the final rule:

• Preamble Example 1: "When, for example, a student alleges they have been assaulted by a professor in a study abroad program and that a sex-based hostile environment exists when the student and professor return to campus, a recipient would be obligated to address the alleged hostile environment that exists under its education program or activity in the United States. How a recipient should address a complaint of a hostile environment resulting from conduct alleged to have occurred outside of the United States will depend on the particular facts and circumstances."
• Preamble Example 2: "Student A reports that she was sexually assaulted by Student B while studying abroad, that Student B has been taunting her with sexually suggestive comments since their return to campus and that, as a result, Student A is unable to concentrate or participate fully in her classes and activities."
  • The Department had originally offered this example in the preamble to the proposed rule. In the final rule the Department notes that: "the Department has modified § 106.11 to clarify that a recipient has an obligation to address a sex-based hostile environment under its education program or activity, even when some conduct alleged to be contributing to the hostile environment occurred outside the recipient's education program or activity or outside the United States... the Department did not intend to suggest that a recipient must determine that conduct that occurred outside of the education program or activity or outside of the United States is itself 'sex-based harassment' to consider that conduct in its assessment of whether a hostile environment exists within its education program or activity. To avoid confusion and provide further clarity, the Department has changed the phrase 'even if sex-based harassment contributing to the hostile environment' to 'even when some conduct alleged to be contributing to the hostile environment.' This change does not change the scope of Title IX's application or a recipient's obligations under § 106.11, but more accurately accounts for the fact that conduct that may contribute to a hostile environment under the recipient's education program or activity need not necessarily be 'sex-based harassment.'"
  • The Department also clarified in the preamble to the final rule that: "Thus, in the Department's example of Student A and Student B in the July 2022 NPRM, see 87 FR 41403, the recipient would be obligated to address Student A's allegations of a hostile environment under the recipient's program, including Student A's allegations of taunting by Student B and Student A's inability to concentrate in Student B's presence due to Student B's previous alleged sexual assault of Student A. Indeed, a recipient's fact-specific inquiry must consider whether a complainant's encounters with a respondent in the recipient's education program or activity in the United States give rise to a hostile environment, even when related incidents of alleged conduct may have occurred outside of the recipient's education program or activity or outside the United States. 87 FR 41403. The recipient would not, however, have a standalone obligation to address the underlying alleged sexual assault of Student A that allegedly occurred while Student A and Student B were abroad because Title IX's protections do not apply extraterritorially."

The Department also provides an example of a case where Title IX procedures would not be implicated. While the example is not based on a study abroad program, the Department writes in the preamble that, “In the circumstances in which sex-based harassment occurs outside a recipient’s education program or activity or outside the United States, and the harassment does not contribute to a hostile environment within the recipient’s education program or activity, § 106.11 clarifies that Title IX does not apply.”

• Preamble Example 3: "Student C reports she was sexually assaulted in a nightclub off campus by a third party who does not live in the area. Student C is now experiencing emotional distress and is unable to attend classes."
  • The Department had originally included this example in the preamble to the proposed rule, where it also stated: "Because the assault occurred off campus, and the respondent is not a representative of the recipient or otherwise a person over whom the recipient exercises disciplinary authority, the assault did not occur within the recipient's education program or activity. And because Student C is not alleging a hostile environment within the education program or activity due to the respondent's presence or additional harassment she is experiencing, proposed § 106.11 clarifies that a recipient's Title IX obligations would not be implicated. The recipient would still be encouraged to provide supportive measures to Student C and refer Student C to local law enforcement."
  • In the preamble to the final rule, the Department addressed questions about what it meant by the term "representative of the recipient" in the discussion of that example in the proposed rule, stating: "The Department acknowledges commenters' concerns that the statement 'representative of a recipient' in the example of Student C could be confusing. The Department did not intend to introduce a new concept of a 'representative' in the July 2022 NPRM and appreciates the opportunity to clarify that, in the hypothetical sexual assault of Student C by a third party, if the recipient determines that the third party is not a person over whom the recipient exercises disciplinary authority, then the sexual assault did not occur within the recipient's education program or activity."
  • Nontheless, the Department notes in the preamble to the final rule that it agrees "that when sex-based harassment occurs outside of a recipient's education program or activity, law enforcement may have a responsibility to investigate and respond to such sex-based harassment. The Department notes that nothing in the final regulations prevents a complainant from reporting sex-based harassment that occurs off campus or outside of a recipient's education program or activity to law enforcement, and the Department acknowledges that mandatory reporting laws often require a recipient to report sex-based harassment to law enforcement in addition to fulfilling the recipient's obligations under Title IX. How a recipient's Title IX grievance procedures interact with a concurrent law enforcement proceeding is a fact-specific analysis that will depend on the requirements of the applicable procedures, details of the particular conduct, and local laws."

• Does your institution have a student code of conduct? How does that code apply to education abroad programming?
• Are employees of your education abroad office considered "responsible employees" or “mandatory reporters” with Title IX reporting obligations? If yes, when is the last time the employees received training on their responsibilities?
• Have you met with your Title IX coordinator recently?
• Does your state have its own set of similar laws?

• Department of Education Title IX rule fact Sheet
• Department of Education press release (April 19, 2024)
• Public inspection version of final rule (April 19, 2024)
• Proposed rule at 87 FR 41390 (July 12, 2022)