(1) An institution is in violation of this part if the institution:
(a) gains actual knowledge of discriminatory harassment in the institution's program or activity; and
(b) acts with deliberate indifference to the discriminatory harassment.
(2)
(a) An institution may not sanction or discipline, as discriminatory harassment, student-on-student speech that does not constitute discriminatory harassment.
(b) An institution is not liable under this part for failing to sanction or discipline a student who communicates student-on-student speech that is not discriminatory harassment.
(3) Nothing in this part prevents an institution from sanctioning or disciplining student-on-student speech that is otherwise not protected under the First Amendment to the United States Constitution.
(4) Nothing in this part prevents an institution from responding to student-on-student speech that is not discriminatory harassment by taking nonpunitive actions designed to promote a welcoming, inclusive environment.
(5) Nothing in this part prevents an institution from maintaining policies prohibiting stalking or other criminal activity.