REVISED SEXUAL HARASSMENT GUIDANCE:
HARASSMENT OF STUDENTS
BY SCHOOL EMPLOYEES, OTHER STUDENTS, OR THIRD PARTIES
TITLE IX
January 19, 2001
Preamble
Guidance
PDF (181K)
PREAMBLE
Summary
The Assistant Secretary for Civil Rights, U.S. Department of Education (Department),
issues a new document (revised guidance) that replaces the 1997 document entitled "Sexual
Harassment Guidance: Harassment of Students by School Employees, Other Students,
or Third Parties", issued by the Office for Civil Rights (OCR) on March
13, 1997 (1997 guidance). We revised the guidance in limited respects in light
of subsequent Supreme Court cases relating to sexual harassment in schools.
The revised guidance reaffirms the compliance standards that OCR applies in
investigations and administrative enforcement of Title IX of the Education
Amendments of 1972 (Title IX) regarding sexual harassment. The revised guidance
re-grounds these standards in the Title IX regulations, distinguishing them
from the standards applicable to private litigation for money damages and clarifying
their regulatory basis as distinct from Title VII of the Civil Rights Act of
1964 (Title VII) agency law. In most other respects the revised guidance is
identical to the 1997 guidance. Thus, we intend the revised guidance to serve
the same purpose as the 1997 guidance. It continues to provide the principles
that a school [1] should
use to recognize and effectively respond to sexual harassment of students in
its program as a condition of receiving Federal financial assistance.
Purpose and Scope of the Revised Guidance
In March 1997, we published in the Federal Register "Sexual Harassment
Guidance: Harassment of Students by School Employees, Other Students, or Third
Parties." 62 FR 12034. We issued the guidance pursuant to our authority
under Title IX, and our Title IX implementing regulations, to eliminate discrimination
based on sex in education programs and activities receiving Federal financial
assistance. It was grounded in longstanding legal authority establishing that
sexual harassment of students can be a form of sex discrimination covered by
Title IX. The guidance was the product of extensive consultation with interested
parties, including students, teachers, school administrators, and researchers.
We also made the document available for public comment.
Since the issuance of the 1997 guidance, the Supreme Court (Court) has issued
several important decisions in sexual harassment cases, including two decisions
specifically addressing sexual harassment of students under Title IX: Gebser
v. Lago Vista Independent School District ( Gebser ), 524 U.S. 274 (1998),
and Davis v. Monroe County Board of Education ( Davis ), 526 U.S. 629 (1999).
The Court held in Gebser that a school can be liable for monetary damages if
a teacher sexually harasses a student, an official who has authority to address
the harassment has actual knowledge of the harassment, and that official is
deliberately indifferent in responding to the harassment. In Davis , the Court
announced that a school also may be liable for monetary damages if one student
sexually harasses another student in the schools program and the conditions
of Gebser are met.
The Court was explicit in Gebser and Davis that the liability standards established
in those cases are limited to private actions for monetary damages. See, e.g.,
Gebser , 524 U.S. 283, and Davis , 526 U.S. at 639. The Court acknowledged,
by contrast, the power of Federal agencies, such as the Department, to "promulgate
and enforce requirements that effectuate [Title IX's] nondiscrimination mandate," even
in circumstances that would not give rise to a claim for money damages. See,
Gebser , 524 U.S. at 292.
In an August 1998 letter to school superintendents and a January 1999 letter
to college and university presidents, the Secretary of Education informed school
officials that the Gebser decision did not change a school's obligations to
take reasonable steps under Title IX and the regulations to prevent and eliminate
sexual harassment as a condition of its receipt of Federal funding. The Department
also determined that, although in most important respects the substance of
the 1997 guidance was reaffirmed in Gebser and Davis , certain areas of the
1997 guidance could be strengthened by further clarification and explanation
of the Title IX regulatory basis for the guidance.
On November 2, 2000, we published in the Federal Register a notice requesting
comments on the proposed revised guidance (62 FR 66092). A detailed explanation
of the Gebser and Davis decisions, and an explanation of the proposed changes
in the guidance, can be found in the preamble to the proposed revised guidance.
In those decisions and a third opinion, Oncale v. Sundowner Offshore Services,
Inc. ( Oncale ), 523 U.S. 75 (1998) (a sexual harassment case decided under
Title VII), the Supreme Court confirmed several fundamental principles we articulated
in the 1997 guidance. In these areas, no changes in the guidance were necessary.
A notice regarding the availability of this final document appeared in the
Federal Register on January 19, 2001.
Enduring Principles from the 1997 Guidance
It continues to be the case that a significant number of students, both male
and female, have experienced sexual harassment, which can interfere with a
student's academic performance and emotional and physical well-being. Preventing
and remedying sexual harassment in schools is essential to ensuring a safe
environment in which students can learn. As with the 1997 guidance, the revised
guidance applies to students at every level of education. School personnel
who understand their obligations under Title IX, e.g., understand that sexual
harassment can be sex discrimination in violation of Title IX, are in the best
position to prevent harassment and to lessen the harm to students if, despite
their best efforts, harassment occurs.
One of the fundamental aims of both the 1997 guidance and the revised guidance
has been to emphasize that, in addressing allegations of sexual harassment,
the good judgment and common sense of teachers and school administrators are
important elements of a response that meets the requirements of Title IX.
A critical issue under Title IX is whether the school recognized that sexual
harassment has occurred and took prompt and effective action calculated to
end the harassment, prevent its recurrence, and, as appropriate, remedy its
effects. If harassment has occurred, doing nothing is always the wrong response.
However, depending on the circumstances, there may be more than one right way
to respond. The important thing is for school employees or officials to pay
attention to the school environment and not to hesitate to respond to sexual
harassment in the same reasonable, commonsense manner as they would to other
types of serious misconduct.
It is also important that schools not overreact to behavior that does not
rise to the level of sexual harassment. As the Department stated in the 1997
guidance, a kiss on the cheek by a first grader does not constitute sexual
harassment. School personnel should consider the age and maturity of students
in responding to allegations of sexual harassment.
Finally, we reiterate the importance of having well- publicized and effective
grievance procedures in place to handle complaints of sex discrimination, including
sexual harassment complaints. Nondiscrimination policies and procedures are
required by the Title IX regulations. In fact, the Supreme Court in Gebser
specifically affirmed the Department's authority to enforce this requirement
administratively in order to carry out Title IX's nondiscrimination mandate.
524 U.S. at 292. Strong policies and effective grievance procedures are essential
to let students and employees know that sexual harassment will not be tolerated
and to ensure that they know how to report it.
Analysis of Comments Received Concerning the Proposed Revised Guidance
and the Resulting Changes
In response to the Assistant Secretary's invitation to comment, OCR received
approximately 11 comments representing approximately 15 organizations and individuals.
Commenters provided specific suggestions regarding how the revised guidance
could be clarified. Many of these suggested changes have been incorporated.
Significant and recurring issues are grouped by subject and discussed in the
following sections:
Distinction Between Administrative Enforcement and Private Litigation
for Monetary Damages
In Gebser and Davis , the Supreme Court addressed for the first time the appropriate
standards for determining when a school district is liable under Title IX for
money damages in a private lawsuit brought by or on behalf of a student who
has been sexually harassed. As explained in the preamble to the proposed revised
guidance, the Court was explicit in Gebser and Davis that the liability standards
established in these cases are limited to private actions for monetary damages.
See, e.g., Gebser , 524 U.S. At 283, and Davis , 526 U.S. At 639. The Gebser Court recognized and contrasted lawsuits for money damages with the incremental
nature of administrative enforcement of Title IX. In Gebser , the Court was
concerned with the possibility of a money damages award against a school for
harassment about which it had not known. In contrast, the process of administrative
enforcement requires enforcement agencies such as OCR to make schools aware
of potential Title IX violations and to seek voluntary corrective action before
pursuing fund termination or other enforcement mechanisms.
Commenters uniformly agreed with OCR that the Court limited the liability
standards established in Gebser and Davis to private actions for monetary damages.
See, e.g., Gebser , 524 U.S. 283, and Davis , 526 U.S. At 639. Commenters
also agreed that the administrative enforcement standards reflected in the
1997 guidance remain valid in OCR enforcement actions. [2]
Finally, commenters agreed that the proposed revisions provided important clarification
to schools regarding the standards that OCR will use and that schools should
use to determine compliance with Title IX as a condition of the receipt of
Federal financial assistance in light of Gebser and Davis.
Harassment by Teachers and Other School Personnel
Most commenters agreed with OCR's interpretation of its regulations regarding
a school's responsibility for harassment of students by teachers and other
school employees. These commenters agreed that Title IX's prohibitions against
discrimination are not limited to official policies and practices governing
school programs and activities. A school also engages in sex-based discrimination
if its employees, in the context of carrying out their day-to-day job responsibilities
for providing aid, benefits, or services to students (such as teaching, counseling,
supervising, and advising students) deny or limit a student's ability to participate
in or benefit from the schools program on the basis of sex.' Under the Title
IX regulations, the school is responsible for discrimination in these cases,
whether or not it knew or should have known about it, because the discrimination
occurred as part of the school's undertaking to provide nondiscriminatory aid,
benefits, and services to students. The revised guidance distinguishes these
cases from employee harassment that, although taking place in a school's program,
occurs outside of the context of the employee's provision of aid, benefits,
and services to students. In these latter cases, the school's responsibilities
are not triggered until the school knew or should have known about the harassment.
One commenter expressed concern that it was inappropriate ever to find a school
out of compliance for harassment about which it knew nothing. We reiterate
that, although a school may in some cases be responsible for harassment caused
by an employee that occurred before other responsible employees of the school
knew or should have known about it, OCR always provides the school with actual
notice and the opportunity to take appropriate corrective action before issuing
a finding of violation. This is consistent with the Court's underlying concern
in Gebser and Davis.
Most commenters acknowledged that OCR has provided useful factors to determine
whether harassing conduct took place "in the context of providing aid,
benefits, or services." However, some commenters stated that additional
clarity and examples regarding the issue were needed. Commenters also suggested
clarifying references to quid pro quo and hostile environment harassment as
these two concepts, though useful, do not determine the issue of whether the
school itself is considered responsible for the harassment. We agree with
these concerns and have made significant revisions to the sections "Harassment
that Denies or Limits a Student's Ability to Participate in or Benefit from
the Education Program" and "Harassment by Teachers and Other Employees" to
clarify the guidance in these respects.
Gender-based Harassment, Including Harassment Predicated on Sex-stereotyping
Several commenters requested that we expand the discussion and include examples
of gender-based harassment predicated on sex stereotyping. Some commenters
also argued that gender-based harassment should be considered sexual harassment,
and that we have "artificially" restricted the guidance only to harassment
in the form of conduct of a sexual nature, thus, implying that gender-based
harassment is of less concern and should be evaluated differently.
We have not further expanded this section because, while we are also concerned
with the important issue of gender-based harassment, we believe that harassment
of a sexual nature raises unique and sufficiently important issues that distinguish
it from other types of gender-based harassment and warrants its own guidance.
Nevertheless, we have clarified this section of the guidance in several ways.
The guidance clarifies that gender-based harassment, including that predicated
on sex-stereotyping, is covered by Title IX if it is sufficiently serious to
deny or limit a student's ability to participate in or benefit from the program.
Thus, it can be discrimination on the basis of sex to harass a student on the
basis of the victim's failure to conform to stereotyped notions of masculinity
and femininity. Although this type of harassment is not covered by the guidance,
if it is sufficiently serious, gender-based harassment is a school's responsibility,
and the same standards generally will apply. We have also added an endnote
regarding Supreme Court precedent for the proposition that sex stereotyping
can constitute sex discrimination.
Several commenters also suggested that we state that sexual and non-sexual
(but gender-based) harassment should not be evaluated separately in determining
whether a hostile environment exists. We note that both the proposed revised
guidance and the final revised guidance indicate in several places that incidents
of sexual harassment and non-sexual, gender-based harassment can be combined
to determine whether a hostile environment has been created. We also note
that sufficiently serious harassment of a sexual nature remains covered by
Title IX, as explained in the guidance, even though the hostile environment
may also include taunts based on sexual orientation.
Definition of Harassment
One commenter urged OCR to provide distinct definitions of sexual harassment
to be used in administrative enforcement as distinguished from criteria used
to maintain private actions for monetary damages. We disagree. First, as
discussed in the preamble to the proposed revised guidance, the definition
of hostile environment sexual harassment used by the Court in Davis is consistent
with the definition found in the proposed guidance. Although the terms used
by the Court in Davis are in some ways different from the words used to define
hostile environment harassment in the 1997 guidance (see, e.g., 62 FR 12041, "conduct
of a sexual nature is sufficiently severe, persistent, or pervasive to limit
a student's ability to participate in or benefit from the education program,
or to create a hostile or abusive educational environment"), the definitions
are consistent. Both the Court's and the Department's definitions are contextual
descriptions intended to capture the same concept - that under Title IX, the
conduct must be sufficiently serious that it adversely affects a student's
ability to participate in or benefit from the school's program. In determining
whether harassment is actionable, both Davis and the Department tell schools
to look at the "constellation of surrounding circumstances, expectations,
and relationships" (526 U.S. At 651 (citing Oncale )), and the Davis Court
cited approvingly to the underlying core factors described in the 1997 guidance
for evaluating the context of the harassment. Second, schools benefit from
consistency and simplicity in understanding what is sexual harassment for which
the school must take responsive action. A multiplicity of definitions would
not serve this purpose.
Several commenters suggested that we develop a unique Title IX definition
of harassment that does not rely on Title VII and that takes into account the
special relationship of schools to students. Other commenters, by contrast,
commended OCR for recognizing that Gebser and Davis did not alter the definition
of hostile environment sexual harassment found in OCR's 1997 guidance, which
derives from Title VII caselaw, and asked us to strengthen the point. While
Gebser and Davis made clear that Title VII agency principles do not apply in
determining liability for money damages under Title IX, the Davis Court also
indicated, through its specific references to Title VII caselaw, that Title
VII remains relevant in determining what constitutes hostile environment sexual
harassment under Title IX. We also believe that the factors described in both
the 1997 guidance and the revised guidance to determine whether sexual harassment
has occurred provide the necessary flexibility for taking into consideration
the age and maturity of the students involved and the nature of the school
environment.
Effective Response
One commenter suggested that the change in the guidance from "appropriate
response" to "effective response" implies a change in OCR policy
that requires omniscience of schools. We disagree. Effectiveness has always
been the measure of an adequate response under Title IX. This does not mean
a school must overreact out of fear of being judged inadequate. Effectiveness
is measured based on a reasonableness standard. Schools do not have to know
beforehand that their response will be effective. However, if their initial
steps are ineffective in stopping the harassment, reasonableness may require
a series of escalating steps.
The Relationship Between FERPA and Title IX
In the development of both the 1997 guidance and the current revisions to
the guidance, commenters raised concerns about the interrelation of the Family
Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g, and Title IX.
The concerns relate to two issues: (1) the harassed student's right to information
about the outcome of a sexual harassment complaint against another student,
including information about sanctions imposed on a student found guilty of
harassment; and (2) the due process rights of individuals, including teachers,
accused of sexual harassment by a student, to obtain information about the
identity of the complainant and the nature of the allegations.
FERPA generally forbids disclosure of information from a student's "education
record" without the consent of the student (or the student's parent).
Thus, FERPA may be relevant when the person found to have engaged in harassment
is another student, because written information about the complaint, investigation,
and outcome is part of the harassing student's education record. Title IX
is also relevant because it is an important part of taking effective responsive
action for the school to inform the harassed student of the results of its
investigation and whether it counseled, disciplined, or otherwise sanctioned
the harasser. This information can assure the harassed student that the school
has taken the student's complaint seriously and has taken steps to eliminate
the hostile environment and prevent the harassment from recurring.
The Department currently interprets FERPA as not conflicting with the Title
IX requirement that the school notify the harassed student of the outcome of
its investigation, i.e., whether or not harassment was found to have occurred,
because this information directly relates to the victim. It has been the Department's
position that there is a potential conflict between FERPA and Title IX regarding
disclosure of sanctions, and that FERPA generally prevents a school from disclosing
to a student who complained of harassment information about the sanction or
discipline imposed upon a student who was found to have engaged in that harassment. [3]
There is, however, an additional statutory provision that may apply to this
situation. In 1994, as part of the Improving America's Schools Act, Congress
amended the General Education Provisions Act (GEPA) - of which FERPA is a
part - to state that nothing in GEPA "shall be construed to affect the
applicability of ... title IX of the Education Amendments of 1972...." [4]
The Department interprets this provision to mean that FERPA continues to apply
in the context of Title IX enforcement, but if there is a direct conflict between
requirements of FERPA and requirements of Title IX, such that enforcement of
FERPA would interfere with the primary purpose of Title IX to eliminate sex-based
discrimination in schools, the requirements of Title IX override any conflicting
FERPA provisions. The Department is in the process of developing a consistent
approach and specific factors for implementing this provision. OCR and the
Department's Family Policy Compliance Office (FPCO) intend to issue joint guidance,
discussing specific areas of potential conflict between FERPA and Title IX.
FERPA is also relevant when a student accuses a teacher or other employee
of sexual harassment, because written information about the allegations is
contained in the student's education record. The potential conflict arises
because, while FERPA protects the privacy of the student accuser, the accused
individual may need the name of the accuser and information regarding the nature
of the allegations in order to defend against the charges. The 1997 guidance
made clear that neither FERPA nor Title IX override any federally protected
due process rights of a school employee accused of sexual harassment.
Several commenters urged the Department to expand and strengthen this discussion.
They argue that in many instances a school's failure to provide information
about the name of the student accuser and the nature of the allegations seriously
undermines the fairness of the investigative and adjudicative process. They
also urge the Department to include a discussion of the need for confidentiality
as to the identity of the individual accused of harassment because of the significant
harm that can be caused by false accusations. We have made several changes
to the guidance, including an additional discussion regarding the confidentiality
of a person accused of harassment and a new heading entitled "Due Process
Rights of the Accused," to address these concerns.
Footnotes
[1] As in the 1997 guidance,
the revised guidance uses the term "school" to refer to all schools,
colleges, universities, and other educational institutions that receive Federal
funds from the Department.
[2] It is the position of
the United States that the standards set out in OCR's guidance for finding
a violation and seeking voluntary corrective action also would apply to private
actions for injunctive and other equitable relief. See brief of the United
States as Amicus Curiae in Davis v. Monroe County.
[3] Exceptions include the
case of a sanction that directly relates to the person who was harassed (e.g.,
an order that the harasser stay away from the harassed student), or sanctions
related to offenses for which there is a statutory exception, such as crimes
of violence or certain sex offenses in postsecondary institutions.
[4] 20 U.S.C. 1221(d). A
similar amendment was originally passed in 1974 but applied only to Title VI
of the Civil Rights Act of 1964 (prohibiting race discrimination by recipients).
The 1994 amendments also extended 20 U.S.C. 1221(d) to Section 504 of the Rehabilitation
Act of 1973 (prohibiting disability-based discrimination by recipients) and
to the Age Discrimination Act.
REVISED SEXUAL
HARASSMENT GUIDANCE: HARASSMENT OF STUDENTS [1]
BY SCHOOL EMPLOYEES, OTHER STUDENTS, OR THIRD PARTIES
Outline of Contents
I. Introduction
II. Sexual Harassment
III. Applicability of Title IX
IV. Title IX Regulatory Compliance Responsibilities
V. Determining a School's Responsibilities
A. Harassment that Denies or Limits a Student's Ability
to Participate in or Benefit from the Education Program
1. Factors Used to Evaluate Hostile Environment Sexual
Harassment
2. Welcomeness
B. Nature of a School's Responsibility to Address Sexual
Harassment
1. Harassment by Teachers and Other Employees
2. Harassment by Other Students or Third Parties
C. Notice of Employee, Peer, or Third Party Harassment
D. The Role of Grievance Procedures
VI. OCR Case Resolution
VII. Recipient's Response
A. Response to Student or Parent Reports of Harassment;
Response to Direct Observation of Harassment by a Responsible Employee
B. Confidentiality
C. Response to Other Types of Notice
VIII. Prevention
IX. Prompt and Equitable Grievance Procedures
X. Due Process Rights of the Accused
XI. First Amendment
I. Introduction
Title IX of the Education Amendments of 1972 (Title IX) and the Department
of Educations (Department) implementing regulations prohibit discrimination
on the basis of sex in federally assisted education programs and activities. [2]
The Supreme Court, Congress, and Federal executive departments and agencies,
including the Department, have recognized that sexual harassment of students
can constitute discrimination prohibited by Title IX. [3]
This guidance focuses on a school's [4] fundamental
compliance responsibilities under Title IX and the Title IX regulations to
address sexual harassment of students as a condition of continued receipt of
Federal funding. It describes the regulatory basis for a school's compliance
responsibilities under Title IX, outlines the circumstances under which sexual
harassment may constitute discrimination prohibited by the statute and regulations,
and provides information about actions that schools should take to prevent
sexual harassment or to address it effectively if it does occur. [5]
[Contents]
II. Sexual Harassment
Sexual harassment is unwelcome conduct of a sexual nature. Sexual harassment
can include unwelcome sexual advances, requests for sexual favors, and other
verbal, nonverbal, or physical conduct of a sexual nature. [6]
Sexual harassment of a student can deny or limit, on the basis of sex, the
student's ability to participate in or to receive benefits, services, or opportunities
in the school's program. Sexual harassment of students is, therefore, a form
of sex discrimination prohibited by Title IX under the circumstances described
in this guidance.
It is important to recognize that Title IX's prohibition against sexual harassment
does not extend to legitimate nonsexual touching or other nonsexual conduct.
For example, a high school athletic coach hugging a student who made a goal
or a kindergarten teacher's consoling hug for a child with a skinned knee will
not be considered sexual harassment. [7]
Similarly, one student's demonstration of a sports maneuver or technique requiring
contact with another student will not be considered sexual harassment. However,
in some circumstances, nonsexual conduct may take on sexual connotations and
rise to the level of sexual harassment. For example, a teacher's repeatedly
hugging and putting his or her arms around students under inappropriate circumstances
could create a hostile environment.
[Contents]
III. Applicability of Title IX
Title IX applies to all public and private educational institutions that receive
Federal funds, i.e., recipients, including, but not limited to, elementary
and secondary schools, school districts, proprietary schools, colleges, and
universities. The guidance uses the terms "recipients" and "schools" interchangeably
to refer to all of those institutions. The "education program or activity" of
a school includes all of the school's operations. [8]
This means that Title IX protects students in connection with all of the academic,
educational, extra-curricular, athletic, and other programs of the school,
whether they take place in the facilities of the school, on a school bus, at
a class or training program sponsored by the school at another location, or
elsewhere.
A student may be sexually harassed by a school employee, [9] another
student, or a non-employee third party (e.g., a visiting speaker or visiting
athletes). Title IX protects any "person" from sex discrimination.
Accordingly, both male and female students are protected from sexual harassment [10] engaged
in by a school's employees, other students, or third parties. Moreover, Title
IX prohibits sexual harassment regardless of the sex of the harasser, i.e.,
even if the harasser and the person being harassed are members of the same
sex. [11] An example
would be a campaign of sexually explicit graffiti directed at a particular
girl by other girls. [12]
Although Title IX does not prohibit discrimination on the basis of sexual
orientation, [13] sexual
harassment directed at gay or lesbian students that is sufficiently serious
to limit or deny a student's ability to participate in or benefit from the
school's program constitutes sexual harassment prohibited by Title IX under
the circumstances described in this guidance. [14]
For example, if a male student or a group of male students target a gay student
for physical sexual advances, serious enough to deny or limit the victim's
ability to participate in or benefit from the school's program, the school
would need to respond promptly and effectively, as described in this guidance,
just as it would if the victim were heterosexual. On the other hand, if students
heckle another student with comments based on the student's sexual orientation
(e.g., "gay students are not welcome at this table in the cafeteria"),
but their actions do not involve conduct of a sexual nature, their actions
would not be sexual harassment covered by Title IX. [15]
Though beyond the scope of this guidance, gender-based harassment, which may
include acts of verbal, nonverbal, or physical aggression, intimidation, or
hostility based on sex or sex-stereotyping, [16] but
not involving conduct of a sexual nature, is also a form of sex discrimination
to which a school must respond, if it rises to a level that denies or limits
a student's ability to participate in or benefit from the educational program. [17]
For example, the repeated sabotaging of female graduate students laboratory
experiments by male students in the class could be the basis of a violation
of Title IX. A school must respond to such harassment in accordance with the
standards and procedures described in this guidance. [18] In
assessing all related circumstances to determine whether a hostile environment
exists, incidents of gender-based harassment combined with incidents of sexual
harassment could create a hostile environment, even if neither the gender-based
harassment alone nor the sexual harassment alone would be sufficient to do
so. [19]
[Contents]
IV. Title IX Regulatory Compliance Responsibilities
As a condition of receiving funds from the Department, a school is required
to comply with Title IX and the Department's Title IX regulations, which spell
out prohibitions against sex discrimination. The law is clear that sexual
harassment may constitute sex discrimination under Title IX. [20]
Recipients specifically agree, as a condition for receiving Federal financial
assistance from the Department, to comply with Title IX and the Department's
Title IX regulations. The regulatory provision requiring this agreement, known
as an assurance of compliance, specifies that recipients must agree that education
programs or activities operated by the recipient will be operated in compliance
with the Title IX regulations, including taking any action necessary to remedy
its discrimination or the effects of its discrimination in its programs. [21]
The regulations set out the basic Title IX responsibilities a recipient undertakes
when it accepts Federal financial assistance, including the following specific
obligations. [22] A
recipient agrees that, in providing any aid, benefit, or service to students,
it will not, on the basis of sex—
Treat one student differently from another in determining whether the student
satisfies any requirement or condition for the provision of any aid, benefit,
or service; [23]
Provide different aid, benefits, or services or provide aid, benefits,
or services in a different manner; [24]
Deny any student any such aid, benefit, or service; [25]
Subject students to separate or different rules of behavior, sanctions,
or other treatment; [26]
Aid or perpetuate discrimination against a student by providing significant
assistance to any agency, organization, or person that discriminates on the
basis of sex in providing any aid, benefit, or service to students; [27] and
- Otherwise limit any student in the enjoyment of any right, privilege, advantage,
or opportunity. [28]
For the purposes of brevity and clarity, this guidance generally summarizes
this comprehensive list by referring to a school's obligation to ensure that
a student is not denied or limited in the ability to participate in or benefit
from the school's program on the basis of sex.
The regulations also specify that, if a recipient discriminates on the basis
of sex, the school must take remedial action to overcome the effects of the
discrimination. [29]
In addition, the regulations establish procedural requirements that are important
for the prevention or correction of sex discrimination, including sexual harassment.
These requirements include issuance of a policy against sex discrimination [30] and
adoption and publication of grievance procedures providing for prompt and equitable
resolution of complaints of sex discrimination. [31]
The regulations also require that recipients designate at least one employee
to coordinate compliance with the regulations, including coordination of investigations
of complaints alleging noncompliance. [32]
To comply with these regulatory requirements, schools need to recognize and
respond to sexual harassment of students by teachers and other employees, by
other students, and by third parties. This guidance explains how the requirements
of the Title IX regulations apply to situations involving sexual harassment
of a student and outlines measures that schools should take to ensure compliance.
[Contents]
V. Determining a School's Responsibilities
In assessing sexually harassing conduct, it is important for schools to recognize
that two distinct issues are considered. The first issue is whether, considering
the types of harassment discussed in the following section, the conduct denies
or limits a student's ability to participate in or benefit from the program
based on sex.' If it does, the second issue is the nature of the school's responsibility
to address that conduct. As discussed in a following section, this issue depends
in part on the identity of the harasser and the context in which the harassment
occurred.
A. Harassment that Denies or Limits a Student's
Ability to Participate in or Benefit from the Education Program
This guidance moves away from specific labels for types of sexual harassment. [33]
In each case, the issue is whether the harassment rises to a level that it
denies or limits a student's ability to participate in or benefit from the
school's program based on sex. However, an understanding of the different types
of sexual harassment can help schools determine whether or not harassment has
occurred that triggers a school's responsibilities under, or violates, Title
IX or its regulations.
The type of harassment traditionally referred to as quid pro quo harassment
occurs if a teacher or other employee conditions an educational decision or
benefit on the student's submission to unwelcome sexual conduct. [34]
Whether the student resists and suffers the threatened harm or submits and
avoids the threatened harm, the student has been treated differently, or the
student's ability to participate in or benefit from the school's program has
been denied or limited, on the basis of sex in violation of the Title IX regulations. [35]
By contrast, sexual harassment can occur that does not explicitly or implicitly
condition a decision or benefit on submission to sexual conduct. Harassment
of this type is generally referred to as hostile environment harassment. [36]
This type of harassing conduct requires a further assessment of whether or
not the conduct is sufficiently serious to deny or limit a student's ability
to participate in or benefit from the school's program based on sex. [37]
Teachers and other employees can engage in either type of harassment. Students
and third parties are not generally given responsibility over other students
and, thus, generally can only engage in hostile environment harassment.
1. Factors Used to Evaluate Hostile Environment
Sexual Harassment
As outlined in the following paragraphs, OCR considers a variety of related
factors to determine if a hostile environment has been created, i.e., if sexually
harassing conduct by an employee, another student, or a third party is sufficiently
serious that it denies or limits a student's ability to participate in or benefit
from the school's program based on sex.' OCR considers the conduct from both
a subjective [38] and
objective [39] perspective.
In evaluating the severity and pervasiveness of the conduct, OCR considers
all relevant circumstances, i.e., "the constellation of surrounding circumstances,
expectations, and relationships." [40]
Schools should also use these factors to evaluate conduct in order to draw
commonsense distinctions between conduct that constitutes sexual harassment
and conduct that does not rise to that level. Relevant factors include the
following:
- The degree to which the conduct affected one or more students education. OCR assesses the effect of the harassment on the student to determine whether
it has denied or limited the student's ability to participate in or benefit
from the school's program. For example, a student's grades may go down or
the student may be forced to withdraw from school because of the harassing
behavior. [41] A
student may also suffer physical injuries or mental or emotional distress. [42]
In another situation, a student may have been able to keep up his or her
grades and continue to attend school even though it was very difficult for
him or her to do so because of the teacher's repeated sexual advances. Similarly,
a student may be able to remain on a sports team, despite experiencing great
difficulty performing at practices and games from the humiliation and anger
caused by repeated sexual advances and intimidation by several team members
that create a hostile environment. Harassing conduct in these examples would
alter a reasonable student's educational environment and adversely affect
the student's ability to participate in or benefit from the school's program
on the basis of sex.
A hostile environment can occur even if the harassment is not targeted
specifically at the individual complainant. [43]
For example, if a student, group of students, or a teacher regularly
directs sexual comments toward a particular student, a hostile environment
may be created not only for the targeted student, but also for others
who witness the conduct.
The type, frequency, and duration of the conduct. In most cases, a hostile
environment will exist if there is a pattern or practice of harassment, or
if the harassment is sustained and nontrivial. [44]
For instance, if a young woman is taunted by one or more young men about
her breasts or genital area or both, OCR may find that a hostile environment
has been created, particularly if the conduct has gone on for some time,
or takes place throughout the school, or if the taunts are made by a number
of students. The more severe the conduct, the less the need to show a repetitive
series of incidents; this is particularly true if the harassment is physical.
For instance, if the conduct is more severe, e.g., attempts to grab a female
student's breasts or attempts to grab any student's genital area or buttocks,
it need not be as persistent to create a hostile environment. Indeed, a single
or isolated incident of sexual harassment may, if sufficiently severe, create
a hostile environment. [45]
On the other hand, conduct that is not severe will not create a hostile environment,
e.g., a comment by one student to another student that she has a nice figure.
Indeed, depending on the circumstances, this may not even be conduct of a
sexual nature. [46]
Similarly, because students date one another, a request for a date or a gift
of flowers, even if unwelcome, would not create a hostile environment. However,
there may be circumstances in which repeated, unwelcome requests for dates
or similar conduct could create a hostile environment. For example, a person,
who has been refused previously, may request dates in an intimidating or
threatening manner.
The identity of and relationship between the alleged harasser and the subject
or subjects of the harassment. A factor to be considered, especially in
cases involving allegations of sexual harassment of a student by a school
employee, is the identity of and relationship between the alleged harasser
and the subject or subjects of the harassment. For example, due to the power
a professor or teacher has over a student, sexually based conduct by that
person toward a student is more likely to create a hostile environment than
similar conduct by another student. [47]
The number of individuals involved. Sexual harassment may be committed
by an individual or a group. In some cases, verbal comments or other conduct
from one person might not be sufficient to create a hostile environment,
but could be if done by a group. Similarly, while harassment can be directed
toward an individual or a group, [48] the
effect of the conduct toward a group may vary, depending on the type of conduct
and the context. For certain types of conduct, there may be "safety
in numbers." For example, following an individual student and making
sexual taunts to him or her may be very intimidating to that student, but,
in certain circumstances, less so to a group of students. On the other hand,
persistent unwelcome sexual conduct still may create a hostile environment
if directed toward a group.
The age and sex of the alleged harasser and the subject or subjects of
the harassment. For example, in the case of younger students, sexually
harassing conduct is more likely to be intimidating if coming from an older
student. [49]
The size of the school, location of the incidents, and context in which
they occurred. Depending on the circumstances of a particular case, fewer
incidents may have a greater effect at a small college than at a large university
campus. Harassing conduct occurring on a school bus may be more intimidating
than similar conduct on a school playground because the restricted area makes
it impossible for students to avoid their harassers. [50]
Harassing conduct in a personal or secluded area, such as a dormitory room
or residence hall, can have a greater effect (e.g., be seen as more threatening)
than would similar conduct in a more public area. On the other hand, harassing
conduct in a public place may be more humiliating. Each incident must be
judged individually.
Other incidents at the school. A series of incidents at the school, not
involving the same students, could taken together create a hostile
environment, even if each by itself would not be sufficient. [51]
- Incidents of gender-based, but nonsexual harassment. Acts of verbal,
nonverbal or physical aggression, intimidation or hostility based on sex,
but not involving sexual activity or language, can be combined with incidents
of sexual harassment to determine if the incidents of sexual harassment are
sufficiently serious to create a sexually hostile environment. [52]
It is the totality of the circumstances in which the behavior occurs that
is critical in determining whether a hostile environment exists. Consequently,
in using the factors discussed previously to evaluate incidents of alleged
harassment, it is always important to use common sense and reasonable judgement
in determining whether a sexually hostile environment has been created.
2. Welcomeness
The section entitled "Sexual Harassment" explains that in order
for conduct of a sexual nature to be sexual harassment, it must be unwelcome.
Conduct is unwelcome if the student did not request or invite it and "regarded
the conduct as undesirable or offensive." [53]
Acquiescence in the conduct or the failure to complain does not always mean
that the conduct was welcome. [54]
For example, a student may decide not to resist sexual advances of another
student or may not file a complaint out of fear. In addition, a student may
not object to a pattern of demeaning comments directed at him or her by a group
of students out of a concern that objections might cause the harassers to make
more comments. The fact that a student may have accepted the conduct does
not mean that he or she welcomed it. [55]
Also, the fact that a student willingly participated in conduct on one occasion
does not prevent him or her from indicating that the same conduct has become
unwelcome on a subsequent occasion. On the other hand, if a student actively
participates in sexual banter and discussions and gives no indication that
he or she objects, then the evidence generally will not support a conclusion
that the conduct was unwelcome. [56]
If younger children are involved, it may be necessary to determine the degree
to which they are able to recognize that certain sexual conduct is conduct
to which they can or should reasonably object and the degree to which they
can articulate an objection. Accordingly, OCR will consider the age of the
student, the nature of the conduct involved, and other relevant factors in
determining whether a student had the capacity to welcome sexual conduct.
Schools should be particularly concerned about the issue of welcomeness if
the harasser is in a position of authority. For instance, because students
may be encouraged to believe that a teacher has absolute authority over the
operation of his or her classroom, a student may not object to a teacher's
sexually harassing comments during class; however, this does not necessarily
mean that the conduct was welcome. Instead, the student may believe that any
objections would be ineffective in stopping the harassment or may fear that
by making objections he or she will be singled out for harassing comments or
other retaliation.
In addition, OCR must consider particular issues of welcomeness if the alleged
harassment relates to alleged "consensual" sexual relationships between
a school's adult employees and its students. If elementary students are involved,
welcomeness will not be an issue: OCR will never view sexual conduct between
an adult school employee and an elementary school student as consensual. In
cases involving secondary students, there will be a strong presumption that
sexual conduct between an adult school employee and a student is not consensual.
In cases involving older secondary students, subject to the presumption, [57] OCR
will consider a number of factors in determining whether a school employee's
sexual advances or other sexual conduct could be considered welcome. [58]
In addition, OCR will consider these factors in all cases involving postsecondary
students in making those determinations. [59]
The factors include the following:
The nature of the conduct and the relationship of the school employee to
the student, including the degree of influence (which could, at least in
part, be affected by the student's age), authority, or control the employee
has over the student.
- Whether the student was legally or practically unable to consent to the
sexual conduct in question. For example, a student's age could affect his
or her ability to do so. Similarly, certain types of disabilities could
affect a student's ability to do so.
If there is a dispute about whether harassment occurred or whether it was
welcome in a case in which it is appropriate to consider whether the conduct
would be welcome determinations should be made based on the totality of
the circumstances. The following types of information may be helpful in resolving
the dispute:
Statements by any witnesses to the alleged incident.
Evidence about the relative credibility of the allegedly harassed student
and the alleged harasser. For example, the level of detail and consistency
of each person's account should be compared in an attempt to determine who
is telling the truth. Another way to assess credibility is to see if corroborative
evidence is lacking where it should logically exist. However, the absence
of witnesses may indicate only the unwillingness of others to step forward,
perhaps due to fear of the harasser or a desire not to get involved.
Evidence that the alleged harasser has been found to have harassed others
may support the credibility of the student claiming the harassment; conversely,
the student's claim will be weakened if he or she has been found to have
made false allegations against other individuals.
Evidence of the allegedly harassed student's reaction or behavior after
the alleged harassment. For example, were there witnesses who saw the student
immediately after the alleged incident who say that the student appeared
to be upset? However, it is important to note that some students may respond
to harassment in ways that do not manifest themselves right away, but may
surface several days or weeks after the harassment. For example, a student
may initially show no signs of having been harassed, but several weeks after
the harassment, there may be significant changes in the student's behavior,
including difficulty concentrating on academic work, symptoms of depression,
and a desire to avoid certain individuals and places at school.
Evidence about whether the student claiming harassment filed a complaint
or took other action to protest the conduct soon after the alleged incident
occurred. However, failure to immediately complain may merely reflect a
fear of retaliation or a fear that the complainant may not be believed rather
than that the alleged harassment did not occur.
- Other contemporaneous evidence. For example, did the student claiming
harassment write about the conduct and his or her reaction to it soon after
it occurred (e.g., in a diary or letter)? Did the student tell others (friends,
parents) about the conduct (and his or her reaction to it) soon after it
occurred?
B. Nature of the School's Responsibility to
Address Sexual Harassment
A school has a responsibility to respond promptly and effectively to sexual
harassment. In the case of harassment by teachers or other employees, the nature
of this responsibility depends in part on whether the harassment occurred in
the context of the employee's provision of aid, benefits, or services to students.
1. Harassment by Teachers and Other Employees
Sexual harassment of a student by a teacher or other school employee can be
discrimination in violation of Title IX. [60]
Schools are responsible for taking prompt and effective action to stop the
harassment and prevent its recurrence. A school also may be responsible for
remedying the effects of the harassment on the student who was harassed. The
extent of a recipient's responsibilities if an employee sexually harasses a
student is determined by whether or not the harassment occurred in the context
of the employee's provision of aid, benefits, or services to students.
A recipient is responsible under the Title IX regulations for the nondiscriminatory
provision of aid, benefits, and services to students. Recipients generally
provide aid, benefits, and services to students through the responsibilities
they give to employees. If an employee who is acting (or who reasonably appears
to be acting) in the context of carrying out these responsibilities over students
engages in sexual harassment generally this means harassment that is carried
out during an employee's performance of his or her responsibilities in relation
to students, including teaching, counseling, supervising, advising, and transporting
students and the harassment denies or limits a student's ability to participate
in or benefit from a school program on the basis of sex, [61] the
recipient is responsible for the discriminatory conduct. [62]
The recipient is, therefore, also responsible for remedying any effects of
the harassment on the victim, as well as for ending the harassment and preventing
its recurrence. This is true whether or not the recipient has "notice" of
the harassment. (As explained in the section on "Notice of Employee,
Peer, or Third Party Harassment," for purposes of this guidance, a school
has notice of harassment if a responsible school employee actually knew or,
in the exercise of reasonable care, should have known about the harassment.)
Of course, under OCR's administrative enforcement, recipients always receive
actual notice and the opportunity to take appropriate corrective action before
any finding of violation or possible loss of federal funds.
Whether or not sexual harassment of a student occurred within the context
of an employee's responsibilities for providing aid, benefits, or services
is determined on a case-by-case basis, taking into account a variety of factors.
If an employee conditions the provision of an aid, benefit, or service that
the employee is responsible for providing on a student's submission to sexual
conduct, i.e., conduct traditionally referred to as quid pro quo harassment,
the harassment is clearly taking place in the context of the employee's responsibilities
to provide aid, benefits, or services." In other situations, i.e., when
an employee has created a hostile environment, OCR will consider the following
factors in determining whether or not the harassment has taken place in this
context, including:
The type and degree of responsibility given to the employee, including
both formal and informal authority, to provide aids, benefits, or services
to students, to direct and control student conduct, or to discipline students
generally;
the degree of influence the employee has over the particular student involved,
including in the circumstances in which the harassment took place;
where and when the harassment occurred;
the age and educational level of the student involved; and
- as applicable, whether, in light of the student's age and educational level
and the way the school is run, it would be reasonable for the student to
believe that the employee was in a position of responsibility over the student,
even if the employee was not.
These factors are applicable to all recipient educational institutions, including
elementary and secondary schools, colleges, and universities. Elementary and
secondary schools, however, are typically run in a way that gives teachers,
school officials, and other school employees a substantial degree of supervision,
control, and disciplinary authority over the conduct of students. [63]
Therefore, in cases involving allegations of harassment of elementary and
secondary school-age students by a teacher or school administrator during any
school activity, [64] consideration
of these factors will generally lead to a conclusion that the harassment occurred
in the context of the employee's provision of aid, benefits, or services.
For example, a teacher sexually harasses an eighth- grade student in a school
hallway. Even if the student is not in any of the teacher's classes and even
if the teacher is not designated as a hall monitor, given the age and educational
level of the student and the status and degree of influence of teachers in
elementary and secondary schools, it would be reasonable for the student to
believe that the teacher had at least informal disciplinary authority over
students in the hallways. Thus, OCR would consider this an example of conduct
that is occurring in the context of the employee's responsibilities to provide
aid, benefits, or services.
Other examples of sexual harassment of a student occurring in the context
of an employee's responsibilities for providing aid, benefits, or services
include, but are not limited to -- a faculty member at a university's medical
school conditions an intern's evaluation on submission to his sexual advances
and then gives her a poor evaluation for rejecting the advances; a high school
drama instructor does not give a student a part in a play because she has not
responded to sexual overtures from the instructor; a faculty member withdraws
approval of research funds for her assistant because he has rebuffed her advances;
a journalism professor who supervises a college newspaper continually and inappropriately
touches a student editor in a sexual manner, causing the student to resign
from the newspaper staff; and a teacher repeatedly asks a ninth grade student
to stay after class and attempts to engage her in discussions about sex and
her personal experiences while they are alone in the classroom, causing the
student to stop coming to class. In each of these cases, the school is responsible
for the discriminatory conduct, including taking prompt and effective action
to end the harassment, prevent it from recurring, and remedy the effects of
the harassment on the victim.
Sometimes harassment of a student by an employee in the school's program does
not take place in the context of the employee's provision of aid, benefits,
or services, but nevertheless is sufficiently serious to create a hostile educational
environment. An example of this conduct might occur if a faculty member in
the history department at a university, over the course of several weeks, repeatedly
touches and makes sexually suggestive remarks to a graduate engineering student
while waiting at a stop for the university shuttle bus, riding on the bus,
and upon exiting the bus. As a result, the student stops using the campus
shuttle and walks the very long distances between her classes. In this case,
the school is not directly responsible for the harassing conduct because it
did not occur in the context of the employee's responsibilities for the provision
of aid, benefits, or services to students. However, the conduct is sufficiently
serious to deny or limit the student in her ability to participate in or benefit
from the recipient's program. Thus, the school has a duty, upon notice of
the harassment, [65] to
take prompt and effective action to stop the harassment and prevent its recurrence.
If the school takes these steps, it has avoided violating Title IX. If the
school fails to take the necessary steps, however, its failure to act has allowed
the student to continue to be subjected to a hostile environment that denies
or limits the student's ability to participate in or benefit from the school's
program. The school, therefore, has engaged in its own discrimination. It
then becomes responsible, not just for stopping the conduct and preventing
it from happening again, but for remedying the effects of the harassment on
the student that could reasonably have been prevented if the school had responded
promptly and effectively. (For related issues, see the sections on "OCR
Case Resolution" and "Recipient's Response.")
2. Harassment by Other Students or Third
Parties
If a student sexually harasses another student and the harassing conduct is
sufficiently serious to deny or limit the student's ability to participate
in or benefit from the program, and if the school knows or reasonably should
know [66] about the
harassment, the school is responsible for taking immediate effective action
to eliminate the hostile environment and prevent its recurrence. [67]
As long as the school, upon notice of the harassment, responds by taking prompt
and effective action to end the harassment and prevent its recurrence, the
school has carried out its responsibility under the Title IX regulations.
On the other hand, if, upon notice, the school fails to take prompt, effective
action, the school's own inaction has permitted the student to be subjected
to a hostile environment that denies or limits the student's ability to participate
in or benefit from the school's program on the basis of sex. [68]
In this case, the school is responsible for taking effective corrective actions
to stop the harassment, prevent its recurrence, and remedy the effects on the
victim that could reasonably have been prevented had it responded promptly
and effectively.
Similarly, sexually harassing conduct by third parties, who are not themselves
employees or students at the school (e.g., a visiting speaker or members of
a visiting athletic team), may also be of a sufficiently serious nature to
deny or limit a student's ability to participate in or benefit from the education
program. As previously outlined in connection with peer harassment, if the
school knows or should know [69] of
the harassment, the school is responsible for taking prompt and effective action
to eliminate the hostile environment and prevent its recurrence.
The type of appropriate steps that the school should take will differ depending
on the level of control that the school has over the third party harasser. [70]
For example, if athletes from a visiting team harass the home school's students,
the home school may not be able to discipline the athletes. However, it could
encourage the other school to take appropriate action to prevent further incidents;
if necessary, the home school may choose not to invite the other school back.
(This issue is discussed more fully in the section on "Recipient's Response.")
If, upon notice, the school fails to take prompt and effective corrective
action, its own failure has permitted the student to be subjected to a hostile
environment that limits the student's ability to participate in or benefit
from the education program. [71]
In this case, the school is responsible for taking corrective actions to stop
the harassment, prevent its recurrence, and remedy the effects on the victim
that could reasonably have been prevented had the school responded promptly
and effectively.
C. Notice of Employee, Peer, or Third Party
Harassment
As described in the section on "Harassment by Teachers and Other Employees," schools
may be responsible for certain types of employee harassment that occurred before
the school otherwise had notice of the harassment. On the other hand, as described
in that section and the section on "Harassment by Other Students or Third
Parties," in situations involving certain other types of employee harassment,
or harassment by peers or third parties, a school will be in violation of the
Title IX regulations if the school "has notice" of a sexually hostile
environment and fails to take immediate and effective corrective action. [72]
A school has notice if a responsible employee "knew, or in the exercise
of reasonable care should have known," about the harassment. [73]
A responsible employee would include any employee who has the authority to
take action to redress the harassment, who has the duty to report to appropriate
school officials sexual harassment or any other misconduct by students or employees,
or an individual who a student could reasonably believe has this authority
or responsibility. [74]
Accordingly, schools need to ensure that employees are trained so that those
with authority to address harassment know how to respond appropriately, and
other responsible employees know that they are obligated to report harassment
to appropriate school officials. Training for employees should include practical
information about how to identify harassment and, as applicable, the person
to whom it should be reported.
A school can receive notice of harassment in many different ways. A student
may have filed a grievance with the Title IX coordinator [75] or
complained to a teacher or other responsible employee about fellow students
harassing him or her. A student, parent, or other individual may have contacted
other appropriate personnel, such as a principal, campus security, bus driver,
teacher, affirmative action officer, or staff in the office of student affairs.
A teacher or other responsible employee of the school may have witnessed the
harassment. The school may receive notice about harassment in an indirect
manner, from sources such as a member of the school staff, a member of the
educational or local community, or the media. The school also may have learned
about the harassment from flyers about the incident distributed at the school
or posted around the school. For the purposes of compliance with the Title
IX regulations, a school has a duty to respond to harassment about which it
reasonably should have known, i.e., if it would have learned of the harassment
if it had exercised reasonable care or made a "reasonably diligent inquiry." [76]
For example, in some situations if the school knows of incidents of harassment,
the exercise of reasonable care should trigger an investigation that would
lead to a discovery of additional incidents. [77]
In other cases, the pervasiveness of the harassment may be enough to conclude
that the school should have known of the hostile environment if the harassment
is widespread, openly practiced, or well-known to students and staff (such
as sexual harassment occurring in the hallways, graffiti in public areas, or
harassment occurring during recess under a teacher's supervision.) [78]
If a school otherwise knows or reasonably should know of a hostile environment
and fails to take prompt and effective corrective action, a school has violated
Title IX even if the student has failed to use the school's existing grievance
procedures or otherwise inform the school of the harassment.
D. The Role of Grievance Procedures
Schools are required by the Title IX regulations to adopt and publish grievance
procedures providing for prompt and equitable resolution of sex discrimination
complaints, including complaints of sexual harassment, and to disseminate a
policy against sex discrimination. [79]
(These issues are discussed in the section on "Prompt and Equitable Grievance
Procedures.") These procedures provide a school with a mechanism for
discovering sexual harassment as early as possible and for effectively correcting
problems, as required by the Title IX regulations. By having a strong policy
against sex discrimination and accessible, effective, and fairly applied grievance
procedures, a school is telling its students that it does not tolerate sexual
harassment and that students can report it without fear of adverse consequences.
Without a disseminated policy and procedure, a student does not know either
of the school's policy against and obligation to address this form of discrimination,
or how to report harassment so that it can be remedied. If the alleged harassment
is sufficiently serious to create a hostile environment and it is the school's
failure to comply with the procedural requirements of the Title IX regulations
that hampers early notification and intervention and permits sexual harassment
to deny or limit a student's ability to participate in or benefit from the
school's program on the basis of sex, [80] the
school will be responsible under the Title IX regulations, once informed of
the harassment, to take corrective action, including stopping the harassment,
preventing its recurrence, and remedying the effects of the harassment on the
victim that could reasonably have been prevented if the school's failure to
comply with the procedural requirements had not hampered early notification.
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VI. OCR Case Resolution
If OCR is asked to investigate or otherwise resolve incidents of sexual harassment
of students, including incidents caused by employees, other students, or third
parties, OCR will consider whether (1) the school has a disseminated policy
prohibiting sex discrimination under Title IX [81] and
effective grievance procedures; [82] (2)
the school appropriately investigated or otherwise responded to allegations
of sexual harassment; [83] and
(3) the school has taken immediate and effective corrective action responsive
to the harassment, including effective actions to end the harassment, prevent
its recurrence, and, as appropriate, remedy its effects. [84]
(Issues related to appropriate investigative and corrective actions are discussed
in detail in the section on "Recipient's Response.")
If the school has taken, or agrees to take, each of these steps, OCR will
consider the case against the school resolved and will take no further action,
other than monitoring compliance with an agreement, if any, between the school
and OCR. This is true in cases in which the school was in violation of the
Title IX regulations (e.g., a teacher sexually harassed a student in the context
of providing aid, benefits, or services to students), as well as those in which
there has been no violation of the regulations (e.g., in a peer sexual harassment
situation in which the school took immediate, reasonable steps to end the harassment
and prevent its recurrence). This is because, even if OCR identifies a violation,
Title IX requires OCR to attempt to secure voluntary compliance. [85]
Thus, because a school will have the opportunity to take reasonable corrective
action before OCR issues a formal finding of violation, a school does not risk
losing its Federal funding solely because discrimination occurred.
[Contents]
VII. Recipient's Response
Once a school has notice of possible sexual harassment of students whether
carried out by employees, other students, or third parties it should take
immediate and appropriate steps to investigate or otherwise determine what
occurred and take prompt and effective steps reasonably calculated to end any
harassment, eliminate a hostile environment if one has been created, and prevent
harassment from occurring again. These steps are the school's responsibility
whether or not the student who was harassed makes a complaint or otherwise
asks the school to take action. [86]
As described in the next section, in appropriate circumstances the school will
also be responsible for taking steps to remedy the effects of the harassment
on the individual student or students who were harassed. What constitutes
a reasonable response to information about possible sexual harassment will
differ depending upon the circumstances.
A. Response to Student or Parent Reports
of Harassment; Response to Direct Observation of Harassment by a Responsible
Employee
If a student or the parent of an elementary or secondary student provides
information or complains about sexual harassment of the student, the school
should initially discuss what actions the student or parent is seeking in response
to the harassment. The school should explain the avenues for informal and
formal action, including a description of the grievance procedure that is available
for sexual harassment complaints and an explanation of how the procedure works.
If a responsible school employee has directly observed sexual harassment of
a student, the school should contact the student who was harassed (or the parent,
depending upon the age of the student), [87] explain
that the school is responsible for taking steps to correct the harassment,
and provide the same information described in the previous sentence.
Regardless of whether the student who was harassed, or his or her parent,
decides to file a formal complaint or otherwise request action on the student's
behalf (including in cases involving direct observation by a responsible employee),
the school must promptly investigate to determine what occurred and then take
appropriate steps to resolve the situation. The specific steps in an investigation
will vary depending upon the nature of the allegations, the source of the complaint,
the age of the student or students involved, the size and administrative structure
of the school, and other factors. However, in all cases the inquiry must be
prompt, thorough, and impartial. (Requests by the student who was harassed
for confidentiality or for no action to be taken, responding to notice of harassment
from other sources, and the components of a prompt and equitable grievance
procedure are discussed in subsequent sections of this guidance.)
It may be appropriate for a school to take interim measures during the investigation
of a complaint. For instance, if a student alleges that he or she has been
sexually assaulted by another student, the school may decide to place the students
immediately in separate classes or in different housing arrangements on a campus,
pending the results of the school's investigation. Similarly, if the alleged
harasser is a teacher, allowing the student to transfer to a different class
may be appropriate. In cases involving potential criminal conduct, school
personnel should determine whether appropriate law enforcement authorities
should be notified. In all cases, schools should make every effort to prevent
disclosure of the names of all parties involved - the complainant, the witnesses,
and the accused -- except to the extent necessary to carry out an investigation.
If a school determines that sexual harassment has occurred, it should take
reasonable, timely, age-appropriate, and effective corrective action, including
steps tailored to the specific situation. [88]
Appropriate steps should be taken to end the harassment. For example, school
personnel may need to counsel, warn, or take disciplinary action against the
harasser, based on the severity of the harassment or any record of prior incidents
or both. [89] A series
of escalating consequences may be necessary if the initial steps are ineffective
in stopping the harassment. [90]
In some cases, it may be appropriate to further separate the harassed student
and the harasser, e.g., by changing housing arrangements [91] or
directing the harasser to have no further contact with the harassed student.
Responsive measures of this type should be designed to minimize, as much as
possible, the burden on the student who was harassed. If the alleged harasser
is not a student or employee of the recipient, OCR will consider the level
of control the school has over the harasser in determining what response would
be appropriate. [92]
Steps should also be taken to eliminate any hostile environment that has been
created. For example, if a female student has been subjected to harassment
by a group of other students in a class, the school may need to deliver special
training or other interventions for that class to repair the educational environment.
If the school offers the student the option of withdrawing from a class in
which a hostile environment occurred, the school should assist the student
in making program or schedule changes and ensure that none of the changes adversely
affect the student's academic record. Other measures may include, if appropriate,
directing a harasser to apologize to the harassed student. If a hostile environment
has affected an entire school or campus, an effective response may need to
include dissemination of information, the issuance of new policy statements,
or other steps that are designed to clearly communicate the message that the
school does not tolerate harassment and will be responsive to any student who
reports that conduct.
In some situations, a school may be required to provide other services to
the student who was harassed if necessary to address the effects of the harassment
on that student. [93]
For example, if an instructor gives a student a low grade because the student
failed to respond to his sexual advances, the school may be required to make
arrangements for an independent reassessment of the student's work, if feasible,
and change the grade accordingly; make arrangements for the student to take
the course again with a different instructor; provide tutoring; make tuition
adjustments; offer reimbursement for professional counseling; or take other
measures that are appropriate to the circumstances. As another example, if
a school delays responding or responds inappropriately to information about
harassment, such as a case in which the school ignores complaints by a student
that he or she is being sexually harassed by a classmate, the school will be
required to remedy the effects of the harassment that could have been prevented
had the school responded promptly and effectively.
Finally, a school should take steps to prevent any further harassment [94] and
to prevent any retaliation against the student who made the complaint (or was
the subject of the harassment), against the person who filed a complaint on
behalf of a student, or against those who provided information as witnesses. [95]
At a minimum, this includes making sure that the harassed students and their
parents know how to report any subsequent problems and making follow-up inquiries
to see if there have been any new incidents or any retaliation. To prevent
recurrences, counseling for the harasser may be appropriate to ensure that
he or she understands what constitutes harassment and the effects it can have.
In addition, depending on how widespread the harassment was and whether there
have been any prior incidents, the school may need to provide training for
the larger school community to ensure that students, parents, and teachers
can recognize harassment if it recurs and know how to respond. [96]
B. Confidentiality
The scope of a reasonable response also may depend upon whether a student,
or parent of a minor student, reporting harassment asks that the student's
name not be disclosed to the harasser or that nothing be done about the alleged
harassment. In all cases, a school should discuss confidentiality standards
and concerns with the complainant initially. The school should inform the
student that a confidentiality request may limit the school's ability to respond.
The school also should tell the student that Title IX prohibits retaliation
and that, if he or she is afraid of reprisals from the alleged harasser, the
school will take steps to prevent retaliation and will take strong responsive
actions if retaliation occurs. If the student continues to ask that his or
her name not be revealed, the school should take all reasonable steps to investigate
and respond to the complaint consistent with the student's request as long
as doing so does not prevent the school from responding effectively to the
harassment and preventing harassment of other students.
OCR enforces Title IX consistent with the federally protected due process
rights of public school students and employees. Thus, for example, if a student,
who was the only student harassed, insists that his or her name not be revealed,
and the alleged harasser could not respond to the charges of sexual harassment
without that information, in evaluating the school's response, OCR would not
expect disciplinary action against an alleged harasser.
At the same time, a school should evaluate the confidentiality request in
the context of its responsibility to provide a safe and nondiscriminatory environment
for all students. The factors that a school may consider in this regard include
the seriousness of the alleged harassment, the age of the student harassed,
whether there have been other complaints or reports of harassment against the
alleged harasser, and the rights of the accused individual to receive information
about the accuser and the allegations if a formal proceeding with sanctions
may result. [97]
Similarly, a school should be aware of the confidentiality concerns of an
accused employee or student. Publicized accusations of sexual harassment, if
ultimately found to be false, may nevertheless irreparably damage the reputation
of the accused. The accused individual's need for confidentiality must, of
course, also be evaluated based on the factors discussed in the preceding paragraph
in the context of the school's responsibility to ensure a safe environment
for students.
Although a student's request to have his or her name withheld may limit the
school's ability to respond fully to an individual complaint of harassment,
other means may be available to address the harassment. There are steps a
recipient can take to limit the effects of the alleged harassment and prevent
its recurrence without initiating formal action against the alleged harasser
or revealing the identity of the complainant. Examples include conducting
sexual harassment training for the school site or academic department where
the problem occurred, taking a student survey concerning any problems with
harassment, or implementing other systemic measures at the site or department
where the alleged harassment has occurred.
In addition, by investigating the complaint to the extent possible including
by reporting it to the Title IX coordinator or other responsible school employee
designated pursuant to Title IX the school may learn about or be able to
confirm a pattern of harassment based on claims by different students that
they were harassed by the same individual. In some situations there may be
prior reports by former students who now might be willing to come forward and
be identified, thus providing a basis for further corrective action. In instances
affecting a number of students (for example, a report from a student that an
instructor has repeatedly made sexually explicit remarks about his or her personal
life in front of an entire class), an individual can be put on notice of allegations
of harassing behavior and counseled appropriately without revealing, even indirectly,
the identity of the student who notified the school. Those steps can be very
effective in preventing further harassment.
C. Response to Other Types of Notice
The previous two sections deal with situations in which a student or parent
of a student who was harassed reports or complains of harassment or in which
a responsible school employee directly observes sexual harassment of a student.
If a school learns of harassment through other means, for example, if information
about harassment is received from a third party (such as from a witness to
an incident or an anonymous letter or telephone call), different factors will
affect the school's response. These factors include the source and nature
of the information; the seriousness of the alleged incident; the specificity
of the information; the objectivity and credibility of the source of the report;
whether any individuals can be identified who were subjected to the alleged
harassment; and whether those individuals want to pursue the matter. If, based
on these factors, it is reasonable for the school to investigate and it can
confirm the allegations, the considerations described in the previous sections
concerning interim measures and appropriate responsive action will apply.
For example, if a parent visiting a school observes a student repeatedly harassing
a group of female students and reports this to school officials, school personnel
can speak with the female students to confirm whether that conduct has occurred
and whether they view it as unwelcome. If the school determines that the conduct
created a hostile environment, it can take reasonable, age-appropriate steps
to address the situation. If on the other hand, the students in this example
were to ask that their names not be disclosed or indicate that they do not
want to pursue the matter, the considerations described in the previous section
related to requests for confidentiality will shape the school's response.
In a contrasting example, a student newspaper at a large university may print
an anonymous letter claiming that a professor is sexually harassing students
in class on a daily basis, but the letter provides no clue as to the identity
of the professor or the department in which the conduct is allegedly taking
place. Due to the anonymous source and lack of specificity of the information,
a school would not reasonably be able to investigate and confirm these allegations.
However, in response to the anonymous letter, the school could submit a letter
or article to the newspaper reiterating its policy against sexual harassment,
encouraging persons who believe that they have been sexually harassed to come
forward, and explaining how its grievance procedures work.
[Contents]
VIII. Prevention
A policy specifically prohibiting sexual harassment and separate grievance
procedures for violations of that policy can help ensure that all students
and employees understand the nature of sexual harassment and that the school
will not tolerate it. Indeed, they might even bring conduct of a sexual nature
to the school's attention so that the school can address it before it becomes
sufficiently serious as to create a hostile environment. Further, training
for administrators, teachers, and staff and age-appropriate classroom information
for students can help to ensure that they understand what types of conduct
can cause sexual harassment and that they know how to respond.
[Contents]
IX. Prompt and Equitable Grievance Procedures
Schools are required by the Title IX regulations to adopt and publish a policy
against sex discrimination and grievance procedures providing for prompt and
equitable resolution of complaints of discrimination on the basis of sex. [98]
Accordingly, regardless of whether harassment occurred, a school violates this
requirement of the Title IX regulations if it does not have those procedures
and policy in place. [99]
A school's sex discrimination grievance procedures must apply to complaints
of sex discrimination in the school's education programs and activities filed
by students against school employees, other students, or third parties. [100]
Title IX does not require a school to adopt a policy specifically prohibiting
sexual harassment or to provide separate grievance procedures for sexual harassment
complaints. However, its nondiscrimination policy and grievance procedures
for handling discrimination complaints must provide effective means for preventing
and responding to sexual harassment. Thus, if, because of the lack of a policy
or procedure specifically addressing sexual harassment, students are unaware
of what kind of conduct constitutes sexual harassment or that such conduct
is prohibited sex discrimination, a school's general policy and procedures
relating to sex discrimination complaints will not be considered effective. [101]
OCR has identified a number of elements in evaluating whether a school's grievance
procedures are prompt and equitable, including whether the procedures provide
for
Notice to students, parents of elementary and secondary students, and employees
of the procedure, including where complaints may be filed;
Application of the procedure to complaints alleging harassment carried
out by employees, other students, or third parties;
Adequate, reliable, and impartial investigation of complaints, including
the opportunity to present witnesses and other evidence;
Designated and reasonably prompt timeframes for the major stages of the
complaint process;
Notice to the parties of the outcome of the complaint; [102] and
- An assurance that the school will take steps to prevent recurrence of any
harassment and to correct its discriminatory effects on the complainant and
others, if appropriate. [103]
Many schools also provide an opportunity to appeal the findings or remedy,
or both. In addition, because retaliation is prohibited by Title IX, schools
may want to include a provision in their procedures prohibiting retaliation
against any individual who files a complaint or participates in a harassment
inquiry.
Procedures adopted by schools will vary considerably in detail, specificity,
and components, reflecting differences in audiences, school sizes and administrative
structures, State or local legal requirements, and past experience. In addition,
whether complaint resolutions are timely will vary depending on the complexity
of the investigation and the severity and extent of the harassment. During
the investigation it is a good practice for schools to inform students who
have alleged harassment about the status of the investigation on a periodic
basis.
A grievance procedure applicable to sexual harassment complaints cannot be
prompt or equitable unless students know it exists, how it works, and how to
file a complaint. Thus, the procedures should be written in language appropriate
to the age of the school's students, easily understood, and widely disseminated.
Distributing the procedures to administrators, or including them in the school's
administrative or policy manual, may not by itself be an effective way of providing
notice, as these publications are usually not widely circulated to and understood
by all members of the school community. Many schools ensure adequate notice
to students by having copies of the procedures available at various locations
throughout the school or campus; publishing the procedures as a separate document;
including a summary of the procedures in major publications issued by the school,
such as handbooks and catalogs for students, parents of elementary and secondary
students, faculty, and staff; and identifying individuals who can explain how
the procedures work.
A school must designate at least one employee to coordinate its efforts to
comply with and carry out its Title IX responsibilities. [104]
The school must notify all of its students and employees of the name, office
address, and telephone number of the employee or employees designated. [105]
Because it is possible that an employee designated to handle Title IX complaints
may himself or herself engage in harassment, a school may want to designate
more than one employee to be responsible for handling complaints in order to
ensure that students have an effective means of reporting harassment. [106]
While a school may choose to have a number of employees responsible for Title
IX matters, it is also advisable to give one official responsibility for overall
coordination and oversight of all sexual harassment complaints to ensure consistent
practices and standards in handling complaints. Coordination of recordkeeping
(for instance, in a confidential log maintained by the Title IX coordinator)
will also ensure that the school can and will resolve recurring problems and
identify students or employees who have multiple complaints filed against them. [107]
Finally, the school must make sure that all designated employees have adequate
training as to what conduct constitutes sexual harassment and are able to explain
how the grievance procedure operates. [108]
Grievance procedures may include informal mechanisms for resolving sexual
harassment complaints to be used if the parties agree to do so. [109]
OCR has frequently advised schools, however, that it is not appropriate for
a student who is complaining of harassment to be required to work out the problem
directly with the individual alleged to be harassing him or her, and certainly
not without appropriate involvement by the school (e.g., participation by a
counselor, trained mediator, or, if appropriate, a teacher or administrator).
In addition, the complainant must be notified of the right to end the informal
process at any time and begin the formal stage of the complaint process. In
some cases, such as alleged sexual assaults, mediation will not be appropriate
even on a voluntary basis. Title IX also permits the use of a student disciplinary
procedure not designed specifically for Title IX grievances to resolve sex
discrimination complaints, as long as the procedure meets the requirement of
affording a complainant a "prompt and equitable" resolution of the
complaint.
In some instances, a complainant may allege harassing conduct that constitutes
both sex discrimination and possible criminal conduct. Police investigations
or reports may be useful in terms of fact gathering. However, because legal
standards for criminal investigations are different, police investigations
or reports may not be determinative of whether harassment occurred under Title
IX and do not relieve the school of its duty to respond promptly and effectively. [110]
Similarly, schools are cautioned about using the results of insurance company
investigations of sexual harassment allegations. The purpose of an insurance
investigation is to assess liability under the insurance policy, and the applicable
standards may well be different from those under Title IX. In addition, a
school is not relieved of its responsibility to respond to a sexual harassment
complaint filed under its grievance procedure by the fact that a complaint
has been filed with OCR. [111]
[Contents]
X. Due Process Rights of the Accused
A public school's employees have certain due process rights under the United
States Constitution. The Constitution also guarantees due process to students
in public and State-supported schools who are accused of certain types of infractions.
The rights established under Title IX must be interpreted consistent with any
federally guaranteed due process rights involved in a complaint proceeding.
Furthermore, the Family Educational Rights and Privacy Act (FERPA) does not
override federally protected due process rights of persons accused of sexual
harassment. Procedures that ensure the Title IX rights of the complainant,
while at the same time according due process to both parties involved, will
lead to sound and supportable decisions. Of course, schools should ensure
that steps to accord due process rights do not restrict or unnecessarily delay
the protections provided by Title IX to the complainant. In both public and
private schools, additional or separate rights may be created for employees
or students by State law, institutional regulations and policies, such as faculty
or student handbooks, and collective bargaining agreements. Schools should
be aware of these rights and their legal responsibilities to individuals accused
of harassment.
[Contents]
XI. First Amendment
In cases of alleged harassment, the protections of the First Amendment must
be considered if issues of speech or expression are involved. [112]
Free speech rights apply in the classroom (e.g., classroom lectures and discussions) [113] and
in all other education programs and activities of public schools (e.g., public
meetings and speakers on campus; campus debates, school plays and other cultural
events [114]; and
student newspapers, journals, and other publications [115]).
In addition, First Amendment rights apply to the speech of students and teachers. [116]
Title IX is intended to protect students from sex discrimination, not to regulate
the content of speech. OCR recognizes that the offensiveness of a particular
expression as perceived by some students, standing alone, is not a legally
sufficient basis to establish a sexually hostile environment under Title IX. [117]
In order to establish a violation of Title IX, the harassment must be sufficiently
serious to deny or limit a student's ability to participate in or benefit from
the education program. [118]
Moreover, in regulating the conduct of its students and its faculty to prevent
or redress discrimination prohibited by Title IX (e.g., in responding to harassment
that is sufficiently serious as to create a hostile environment), a school
must formulate, interpret, and apply its rules so as to protect academic freedom
and free speech rights. For instance, while the First Amendment may prohibit
a school from restricting the right of students to express opinions about one
sex that may be considered derogatory, the school can take steps to denounce
those opinions and ensure that competing views are heard. The age of the students
involved and the location or forum may affect how the school can respond consistently
with the First Amendment. [119]
As an example of the application of free speech rights to allegations of sexual
harassment, consider the following:
Example 1: In a college level creative writing class, a professor's required
reading list includes excerpts from literary classics that contain descriptions
of explicit sexual conduct, including scenes that depict women in submissive
and demeaning roles. The professor also assigns students to write their own
materials, which are read in class. Some of the student essays contain sexually
derogatory themes about women. Several female students complain to the Dean
of Students that the materials and related classroom discussion have created
a sexually hostile environment for women in the class. What must the school
do in response?
Answer: Academic discourse in this example is protected by the First Amendment
even if it is offensive to individuals. Thus, Title IX would not require the
school to discipline the professor or to censor the reading list or related
class discussion.
Example 2: A group of male students repeatedly targets a female student
for harassment during the bus ride home from school, including making explicit
sexual comments about her body, passing around drawings that depict her engaging
in sexual conduct, and, on several occasions, attempting to follow her home
off the bus. The female student and her parents complain to the principal
that the male students conduct has created a hostile environment for girls
on the bus and that they fear for their daughter's safety. What must a school
do in response?
Answer: Threatening and intimidating actions targeted at a particular student
or group of students, even though they contain elements of speech, are not
protected by the First Amendment. The school must take prompt and effective
actions, including disciplinary action if necessary, to stop the harassment
and prevent future harassment.
[Contents]
Endnotes
[1] This guidance does not
address sexual harassment of employees, although that conduct may be prohibited
by Title IX. 20 U.S.C. 1681 et seq.; 34 CFR part 106, subpart E. If employees
file Title IX sexual harassment complaints with OCR, the complaints will be
processed pursuant to the Procedures for Complaints of Employment Discrimination
Filed Against Recipients of Federal Financial Assistance. 28 CFR 42.604.
Employees are also protected from discrimination on the basis of sex, including
sexual harassment, by Title VII of the Civil Rights Act of 1964. For information
about Title VII and sexual harassment, see the Equal Employment Opportunity
Commission's (EEOC's) Guidelines on Sexual Harassment, 29 CFR 1604.11, for
information about filing a Title VII charge with the EEOC, see 29 CFR 1601.71607.13,
or see the EEOC's website at www.eeoc.gov.
[2] 20 U.S.C. 1681; 34 CFR
part 106.
[3] See, e.g., Davis v.
Monroe County Bd. of Educ., 526 U.S. 629, 649-50 (1999); Gebser v. Lago Vista
Ind. Sch. Dist., 524 U.S. 274, 281 (1998); Franklin v. Gwinnett County Pub.
Sch., 503 U.S. 60, 75 (1992); S. REP. NO. 100-64, 100 th Cong., 1 st Sess.
14 (1987); Sexual Harassment Guidance: Harassment of Students by School Employees,
Other Students, or Third Parties (1997 guidance), 62 FR 12034 (1997).
[4] As described in the section
on "Applicability," this guidance applies to all levels of education.
[5] For practical information
about steps that schools can take to prevent and remedy all types of harassment,
including sexual harassment, see "Protecting Students from Harassment
and Hate Crime, A Guide for Schools," which we issued jointly with the
National Association of Attorneys General. This Guide is available at our
web site at: www.ed.gov/pubs/Harassment.
[6] See, e.g., Davis, 526
U.S. at 653 (alleged conduct of a sexual nature that would support a sexual
harassment claim included verbal harassment and "numerous acts of objectively
offensive touching;" Franklin, 503 U.S. at 63 (conduct of a sexual nature
found to support a sexual harassment claim under Title IX included kissing,
sexual intercourse); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 60-61
(1986) (demands for sexual favors, sexual advances, fondling, indecent exposure,
sexual intercourse, rape, sufficient to raise hostile environment claim under
Title VII); Ellison v. Brady, 924 F.2d 872, 873-74, 880 (9 th Cir. 1991) (allegations
sufficient to state sexual harassment claim under Title VII included repeated
requests for dates, letters making explicit references to sex and describing
the harasser's feelings for plaintiff); Lipsett v. University of Puerto Rico, 864 F.2d 881, 904-5 (1st Cir. 1988) (sexually derogatory comments, posting
of sexually explicit drawing of plaintiff, sexual advances may support sexual
harassment claim); Kadiki v. Virginia Commonwealth University, 892 F.Supp.
746, 751 (E.D. Va. 1995) (professor's spanking of university student may constitute
sexual conduct under Title IX); Doe v. Petaluma, 830 F.Supp. 1560, 1564-65
(N.D. Cal. 1996) (sexually derogatory taunts and innuendo can be the basis
of a harassment claim); Denver School Dist. #2, OCR Case No. 08-92-1007 (same
to allegations of vulgar language and obscenities, pictures of nude women on
office walls and desks, unwelcome touching, sexually offensive jokes, bribery
to perform sexual acts, indecent exposure); Nashoba Regional High School,
OCR Case No. 01-92-1377 (same as to year-long campaign of derogatory, sexually
explicit graffiti and remarks directed at one student.
[7] See also Shoreline School
Dist., OCR Case No. 10-92-1002 (a teacher's patting a student on the arm,
shoulder, and back, and restraining the student when he was out of control,
not conduct of a sexual nature); Dartmouth Public Schools, OCR Case No. 01-90-1058
(same as to contact between high school coach and students); San Francisco
State University, OCR Case No. 09-94-2038 (same as to faculty advisor placing
her arm around a graduate student's shoulder in posing for a picture); Analy
Union High School Dist., OCR Case No. 09-92-1249 (same as to drama instructor
who put his arms around both male and female students who confided in him).
[8] 20 U.S.C. 1687 (codification
of the amendment to Title IX regarding scope of jurisdiction, enacted by the
Civil Rights Restoration Act of 1987). See 65 FR 68049 (November 13, 2000)
(Department's amendment of the Title IX regulations to incorporate the statutory
definition of "program or activity").
[9] If a school contracts
with persons or organizations to provide benefits, services, or opportunities
to students as part of the school's program, and those persons or employees
of those organizations sexually harass students, OCR will consider the harassing
individual in the same manner that it considers the school's employees, as
described in this guidance. (See section on "Harassment by Teachers and
Other Employees.") See Brown v. Hot, Sexy, and Safer Products, Inc.,
68 F.3d 525, 529 (1st Cir. 1995) (Title IX sexual harassment claim brought
for school's role in permitting contract consultant hired by it to create allegedly
hostile environment).
In addition, if a student engages in sexual harassment as an employee of the
school, OCR will consider the harassment under the standards described for
employees. (See section on "Harassment by Teachers and Other Employees.")
For example, OCR would consider it harassment by an employee if a student teaching
assistant who is responsible for assigning grades in a course, i.e., for providing
aid, benefits, or services to students under the recipient's program, required
a student in his or her class to submit to sexual advances in order to obtain
a certain grade in the class.
[10] Cf. John Does 1
v. Covington County Sch. Bd., 884 F.Supp. 462, 464-65 (M.D. Ala. 1995) (male
students alleging that a teacher sexually harassed and abused them stated cause
of action under Title IX).
[11] Title IX and the
regulations implementing it prohibit discrimination "on the basis of sex;" they
do not restrict protection from sexual harassment to those circumstances in
which the harasser only harasses members of the opposite sex.' See 34 CFR 106.31.
In Oncale v. Sundowner Offshore Services, Inc. the Supreme Court held unanimously
that sex discrimination consisting of same-sex sexual harassment can violate
Title VII's prohibition against discrimination because of sex.' 523 U.S. 75,
82 (1998). The Supreme Court's holding in Oncale is consistent with OCR policy,
originally stated in its 1997 guidance, that Title IX prohibits sexual harassment
regardless of whether the harasser and the person being harassed are members
of the same sex.' 62 FR 12039. See also Kinman v. Omaha Public School Dist., 94 F.3d 463, 468 (8 th Cir. 1996), rev'd on other grounds, 171 F.3d 607
(1999) (female student's allegation of sexual harassment by female teacher
sufficient to raise a claim under Title IX); Doe v. Petaluma, 830 F.Supp.
1560, 1564-65, 1575 (N.D. Cal. 1996) (female junior high student alleging sexual
harassment by other students, including both boys and girls, sufficient to
raise a claim under Title IX); John Does 1, 884 F.Supp. at 465 (same as to
male students allegations of sexual harassment and abuse by a male teacher.)
It can also occur in certain situations if the harassment is directed at students
of both sexes. Chiapuzo v. BLT Operating Corp., 826 F.Supp. 1334, 1337 (D.Wyo.
1993) (court found that if males and females were subject to harassment, but
harassment was based on sex, it could violate Title VII); but see Holman v.
Indiana, 211 F.3d 399, 405 (7th Cir. 2000) (if male and female both subjected
to requests for sex, court found it could not violate Title VII).
In many circumstances, harassing conduct will be on the basis of sex because
the student would not have been subjected to it at all had he or she been a
member of the opposite sex; e.g., if a female student is repeatedly propositioned
by a male student or employee (or, for that matter, if a male student is repeatedly
propositioned by a male student or employee.) In other circumstances, harassing
conduct will be on the basis of sex if the student would not have been affected
by it in the same way or to the same extent had he or she been a member of
the opposite sex; e.g., pornography and sexually explicit jokes in a mostly
male shop class are likely to affect the few girls in the class more than it
will most of the boys.
In yet other circumstances, the conduct will be on the basis of sex in that
the student's sex was a factor in or affected the nature of the harasser's
conduct or both. Thus, in Chiapuzo, a supervisor made demeaning remarks to
both partners of a married couple working for him, e.g., as to sexual acts
he wanted to engage in with the wife and how he would be a better lover than
the husband. In both cases, according to the court, the remarks were based
on sex in that they were made with an intent to demean each member of the couple
because of his or her respective sex.' 826 F.Supp. at 1337. See also Steiner
v. Showboat Operating Co., 25 F.3d 1459, 1463-64 (9 th Cir. 1994), cert. denied, 115 S.Ct. 733 (1995); but see Holman, 211 F.3d at 405 (finding that if male
and female both subjected to requests for sex, Title VII could not be violated).
[12]Nashoba Regional High
School, OCR Case No. 01-92-1397. In Conejo Valley School Dist., OCR Case
No. 09-93-1305, female students allegedly taunted another female student about
engaging in sexual activity; OCR found that the alleged comments were sexually
explicit and, if true, would be sufficiently severe, persistent, and pervasive
to create a hostile environment.
[13] See Williamson v.
A.G. Edwards & Sons, Inc., 876 F2d 69, 70 (8 th Cir. 1989, cert. denied 493 U.S. 1089 (1990); DeSantis v. Pacific Tel. & Tel. Co., Inc., 608 F.2d
327, 329-30 (9th Cir. 1979)(same); Blum v. Gulf Oil Corp., 597 F.2d 936,
938 (5th Cir. 1979)(same).
[14] It should be noted
that some State and local laws may prohibit discrimination on the basis of
sexual orientation. Also, under certain circumstances, courts may permit redress
for harassment on the basis of sexual orientation under other Federal legal
authority. See Nabozny v. Podlesny, 92 F.3d 446, 460 (7th Cir. 1996) (holding
that a gay student could maintain claims alleging discrimination based on both
gender and sexual orientation under the Equal Protection Clause of the United
States Constitution in a case in which a school district failed to protect
the student to the same extent that other students were protected from harassment
and harm by other students due to the student's gender and sexual orientation).
[15] However, sufficiently
serious sexual harassment is covered by Title IX even if the hostile environment
also includes taunts based on sexual orientation.
[16] See also, Price Waterhouse
v. Hopkins, 490 U.S. 228, 251 (1989) (plurality opinion) (where an accounting
firm denied partnership to a female candidate, the Supreme Court found Title
VII prohibits an employer from evaluating employees by assuming or insisting
that they match the stereotype associated with their sex).
[17] See generally Gebser; Davis; See also Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65-66
(1986); Harris v. Forklift Systems Inc., 510 U.S. 14, 22 (1993); see also Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10 th Cir. 1987) (concluding
that harassment based on sex may be discrimination whether or not it is sexual
in nature); McKinney v. Dole, 765 F.2d 1129, 1138 (D.C. Cir. 1985) (physical,
but nonsexual, assault could be sex-based harassment if shown to be unequal
treatment that would not have taken place but for the employee's sex); Cline
v. General Electric Capital Auto Lease, Inc., 757 F.Supp. 923, 932-33 (N.D.
Ill. 1991).
[18] See, e.g., sections
on "Harassment by Teachers and Other Employees," "Harassment
by Other Students or Third Parties," "Notice of Employee, Peer, or
Third Party Harassment," Factors Used to Evaluate a Hostile Environment," Recipient's
Response," and "Prompt and Equitable Grievance Procedures."
[19] See Lipsett, 864
F.2d at 903-905 (general antagonism toward women, including stated goal of
eliminating women from surgical program, statements that women shouldn't be
in the program, and assignment of menial tasks, combined with overt sexual
harassment); Harris, 510 U.S. at 23; Andrews v. City of Philadelphia, 895
F.2d 1469, 1485-86 (3rd Cir. 1990) (court directed trial court to consider
sexual conduct as well as theft of female employees files and work, destruction
of property, and anonymous phone calls in determining if there had been sex
discrimination); see also Hall v. Gus Construction Co., 842 F.2d 1010, 1014
(8th Cir. 1988) (affirming that harassment due to the employee's sex may be
actionable even if the harassment is not sexual in nature); Hicks, 833 F.2d
at 1415; Eden Prairie Schools, Dist. #272, OCR Case No. 05-92-1174 (the boys
made lewd comments about male anatomy and tormented the girls by pretending
to stab them with rubber knives; while the stabbing was not sexual conduct,
it was directed at them because of their sex, i.e., because they were girls).
[20] Davis, 526 U.S. at
650 ("Having previously determined that 'sexual harassment' is 'discrimination'
in the school context under Title IX, we are constrained to conclude that student-on-student
sexual harassment, if sufficiently severe, can likewise rise to the level of
discrimination actionable under the statute."); Franklin, 503 U.S. at
75 ("Unquestionably, Title IX placed on the [school] the duty not to discriminate
on the basis of sex, and 'when a supervisor sexually harasses a subordinate
because of the subordinate's sex, that supervisor "discriminate[s]" on
the basis of sex.' ... We believe the same rule should apply when a teacher
sexually harasses and abuses a student." (citation omitted)).
OCR's longstanding interpretation of its regulations is that sexual harassment
may constitute a violation. 34 CFR 106.31; See Sexual Harassment Guidance,
62 FR 12034 (1997). When Congress enacted the Civil Rights Restoration Act
of 1987 to amend Title IX to restore institution-wide coverage over federally
assisted education programs and activities, the legislative history indicated
not only that Congress was aware that OCR interpreted its Title IX regulations
to prohibit sexual harassment, but also that one of the reasons for passing
the Restoration Act was to enable OCR to investigate and resolve cases involving
allegations of sexual harassment. S. REP. NO. 64, 100th Cong., 1st Sess.
at 12 (1987). The examples of discrimination that Congress intended to be
remedied by its statutory change included sexual harassment of students by
professors, id. at 14, and these examples demonstrate congressional recognition
that discrimination in violation of Title IX can be carried out by school employees
who are providing aid, benefits, or services to students. Congress also intended
that if discrimination occurred, recipients needed to implement effective remedies.
S. REP. NO. 64 at 5.
[21] 34 CFR 106.4.
[22] These are the basic
regulatory requirements. 34 CFR 106.31(a)(b). Depending upon the facts, sexual
harassment may also be prohibited by more specific regulatory prohibitions.
For example, if a college financial aid director told a student that she would
not get the student financial assistance for which she qualified unless she
slept with him, that also would be covered by the regulatory provision prohibiting
discrimination on the basis of sex in financial assistance, 34 CFR 106.37(a).
[23] 34 CFR 106.31(b)(1).
[24] 34 CFR 106.31(b)(2).
[25] 34 CFR 106.31(b)(3).
[26] 34 CFR 106.31(b)(4).
[27] 34 CFR 106.31(b)(6).
[28] 34 CFR 106.31(b)(7).
[29] 34 CFR 106.3(a).
[30] 34 CFR 106.9.
[31] 34 CFR 106.8(b).
[32] 34 CFR 106.8(a).
[33] The 1997 guidance
referred to quid pro quo harassment and hostile environment harassment. 62
FR 1203840.
[34] See Alexander v.
Yale University, 459 F.Supp. 1, 4 (D.Conn. 1977), aff'd, 631 F.2d 178 (2nd Cir. 1980)(stating that a claim "that academic advancement was conditioned
upon submission to sexual demands constitutes [a claim of] sex discrimination
in education..."); Crandell v. New York College, Osteopathic Medicine, 87 F.Supp.2d 304, 318 (S.D.N.Y. 2000) (finding that allegations that a supervisory
physician demanded that a student physician spend time with him and have lunch
with him or receive a poor evaluation, in light of the totality of his alleged
sexual comments and other inappropriate behavior, constituted a claim of quid
pro quo harassment); Kadiki, 892 F.Supp. at 752 (reexamination in a course
conditioned on college student's agreeing to be spanked should she not attain
a certain grade may constitute quid pro quo harassment).
[35] 34 CFR 106.31(b).
[36] Davis, 526 U.S. at
651 (confirming, by citing approvingly both to Title VII cases ( Meritor Savings
Bank, FSB v. Vinson, 477 U.S. 57,67 (1986) (finding that hostile environment
claims are cognizable under Title VII), and Oncale v. Sundowner Offshore Services,
Inc., 523 U.S. 75, 82 (1998)) and OCR's 1997 guidance, 62 FR at 12041-42,
that determinations under Title IX as to what conduct constitutes hostile environment
sexual harassment may continue to rely on Title VII caselaw).
[37] 34 CFR 106.31(b).
See Davis, 526 U.S. at 650 (concluding that allegations of student-on-student
sexual harassment that is "so severe, pervasive, and objectively offensive
that it can be said to deprive the victims of access to the educational opportunities
or benefits" supports a claim for money damages in an implied right of
action).
[38] In Harris, the Supreme
Court explained the requirement for considering the "subjective perspective" when
determining the existence of a hostile environment. The Court stated--"...
if the victim does not subjectively perceive the environment to be abusive,
the conduct has not actually altered the conditions of the victim's employment,
and there is no Title VII violation." 510 U.S. at 21-22.
[39] See Davis, 526 U.S.
at 650 (conduct must be "objectively offensive" to trigger liability
for money damages); Elgamil v. Syracuse University, 2000 U.S. Dist. LEXIS
12598 at 17 (N.D.N.Y. 2000) (citing Harris); Booher v. Board of Regents,
1998 U.S. Dist. LEXIS 11404 at 25 (E.D. Ky. 1998) (same). See Oncale, 523
U.S. at 81, in which the Court "emphasized ... that the objective severity
of harassment should be judged from the perspective of a reasonable person
in the [victim's] position, considering 'all the circumstances,''' and citing
Harris, 510 U.S. at 20, in which the Court indicated that a "reasonable
person" standard should be used to determine whether sexual conduct constituted
harassment. This standard has been applied under Title VII to take into account
the sex of the subject of the harassment, see, e.g., Ellison, 924 F.2d at
878-79 (applying a "reasonable woman" standard to sexual harassment),
and has been adapted to sexual harassment in education under Title IX, Patricia
H. v. Berkeley Unified School Dist., 830 F.Supp. 1288, 1296 (N.D. Cal. 1993)
(adopting a "reasonable victim" standard and referring to OCR's use
of it).
[40] See Davis, 526 U.S.
at 651, citing both Oncale, 523 U.S. at 82, and OCR's 1997 guidance (62 FR
12041-12042).
[41] See, e.g., Davis, 526 U.S. at 634 (as a result of the harassment, student's grades dropped
and she wrote a suicide note); Doe v. Petaluma, 830 F. Supp. at 1566 (student
so upset about harassment by other students that she was forced to transfer
several times, including finally to a private school); Modesto City Schools, OCR Case No. 09-93-1391 (evidence showed that one girl's grades dropped while
the harassment was occurring); Weaverville Elementary School, OCR Case No.
09-91-1116 (students left school due to the harassment). Compare with College
of Alameda, OCR Case No. 09-90-2104 (student not in instructor's class and
no evidence of any effect on student's educational benefits or service, so
no hostile environment).
[42] Doe v. Petaluma,
830 F.Supp. at 1566.
[43] See Waltman v. Int'l
Paper Co., 875 F.2d 468, 477 (5th Cir. 1989) (holding that although not specifically
directed at the plaintiff, sexually explicit graffiti on the walls was "relevant
to her claim"); Monteiro v. Tempe Union High School, 158 F.3d 1022, 1033-34
(9th Cir. 1998) (Title VI racial harassment case, citing Waltman; see also Hall, 842 F. 2d at 1015 (evidence of sexual harassment directed at others
is relevant to show hostile environment under Title VII).
[44] See, e.g., Elgmil 2000 U.S. Dist. LEXIS at 19 ("in order to be actionable, the incidents
of harassment must occur in concert or with a regularity that can reasonably
be termed pervasive"); Andrews, 895 F.2d at 1484 ("Harassment is
pervasive when 'incidents of harassment occur either in concert or with regularity''');
Moylan v. Maries County, 792 F.2d 746, 749 (8th Cir. 1986).
[45] 34 CFR 106.31(b).
See Vance v. Spencer County Public School District, 231 F.3d 253 (6th Cir.
2000); Doe v. School Admin. Dist. No. 19, 66 F.Supp.2d 57, 62 (D. Me. 1999).
See also statement of the U.S. Equal Employment Opportunity Commission (EEOC): "The
Commission will presume that the unwelcome, intentional touching of [an employee's]
intimate body areas is sufficiently offensive to alter the conditions of her
working environment and constitute a violation of Title VII. More so than
in the case of verbal advances or remarks, a single unwelcome physical advance
can seriously poison the victim's working environment." EEOC Policy Guidance
on Current Issues of Sexual Harassment, 17. Barrett v. Omaha National Bank, 584 F. Supp. 22, 30 (D. Neb. 1983), aff'd, 726 F. 2d 424 (8th Cir. 1984)
(finding that hostile environment was created under Title VII by isolated events,
i.e., occurring while traveling to and during a two-day conference, including
the co-worker's talking to plaintiff about sexual activities and touching her
in an offensive manner while they were inside a vehicle from which she could
not escape).
[46] See also Ursuline
College, OCR Case No. 05-91-2068 (a single incident of comments on a male
student's muscles arguably not sexual; however, assuming they were, not severe
enough to create a hostile environment).
[47] Davis, 526 U.S. at
653 ("The relationship between the harasser and the victim necessarily
affects the extent to which the misconduct can be said to breach Title IX's
guarantee of equal access to educational benefits and to have a systemic effect
on a program or activity. Peer harassment, in particular, is less likely to
satisfy these requirements than is teacher student harassment."); Patricia
H., 830 F. Supp. at 1297 (stating that the "grave disparity in age and
power" between teacher and student contributed to the creation of a hostile
environment); Summerfield Schools, OCR Case No. 15-92-1929 ("impact of
the ... remarks was heightened by the fact that the coach is an adult in a
position of authority"); cf. Doe v. Taylor I.S.D., 15 F.3d 443, 460 (5th Cir. 1994) (Sec. 1983 case; taking into consideration the influence that
the teacher had over the student by virtue of his position of authority to
find that a sexual relationship between a high school teacher and a student
was unlawful).
[48] See, e.g., McKinney, 765 F.2d at 1138-49; Robinson v. Jacksonville Shipyards, 760 F. Supp. 1486,
1522 (M.D. Fla. 1991).
[49] Cf. Patricia H.,
830 F. Supp. at 1297.
[50] See, e.g., Barrett, 584 F. Supp. at 30 (finding harassment occurring in a car from which the
victim could not escape particularly severe).
[51] See Hall, 842 F.
2d at 1015 (stating that "evidence of sexual harassment directed at employees
other than the plaintiff is relevant to show a hostile environment") (citing
Hicks, 833 F. 2d, 1415-16). Cf. Midwest City-Del City Public Schools, OCR
Case No. 06-92-1012 (finding of racially hostile environment based in part
on several racial incidents at school shortly before incidents in complaint,
a number of which involved the same student involved in the complaint).
[52] In addition, incidents
of racial or national origin harassment directed at a particular individual
may also be aggregated with incidents of sexual or gender harassment directed
at that individual in determining the existence of a hostile environment. Hicks, 833 F.2d at 1416; Jefferies v. Harris County Community Action Ass'n, 615
F.2d 1025, 1032 (5th Cir. 1980).
[53] Does v. Covington
Sch. Bd. of Educ., 930 F.Supp. 554, 569 (M.D. Ala. 1996); Henson v. City of
Dundee, 682 F.2d 897, 903 (11th Cir. 1982).
[54] See Meritor Savings
Bank, 477 U.S. at 68. "[T]he fact that sex-related conduct was 'voluntary,'
in the sense that the complainant was not forced to participate against her
will, is not a defense to a sexual harassment suit brought under Title VII....
The correct inquiry is whether [the subject of the harassment] by her conduct
indicated that the alleged sexual advances were unwelcome, not whether her
actual participation in sexual intercourse was voluntary."
[55] Lipsett, 864 F.2d
at 898 (while, in some instances, a person may have the responsibility for
telling the harasser "directly" that the conduct is unwelcome, in
other cases a "consistent failure to respond to suggestive comments or
gestures may be sufficient...."); Danna v. New York Tel. Co., 752 F.Supp.
594, 612 (despite a female employee's own foul language and participation in
graffiti writing, her complaints to management indicated that the harassment
was not welcome); see also Carr v. Allison Gas Turbine Div. GMC., 32 F.3d
1007, 1011 (7 th Cir. 1994) (finding that cursing and dirty jokes by a female
employee did not show that she welcomed the sexual harassment, given her frequent
complaints about it: "Even if ... [the employee's] testimony that she
talked and acted as she did [only] in an effort to be one of the boys is ...
discounted, her words and conduct cannot be compared to those of the men and
used to justify their conduct.... The asymmetry of positions must be considered.
She was one woman; they were many men. Her use of [vulgar] terms ... could
not be deeply threatening....").
[56] See Reed v. Shepard, 939 F.2d 484, 486-87, 491-92 (7th Cir. 1991) (no harassment found under
Title VII in a case in which a female employee not only tolerated, but also
instigated the suggestive joking activities about which she was now complaining);
Weinsheimer v. Rockwell Int'l Corp., 754 F.Supp. 1559, 1563-64 (M.D. Fla.
1990) (same, in case in which general shop banter was full of vulgarity and
sexual innuendo by men and women alike, and plaintiff contributed her share
to this atmosphere.) However, even if a student participates in the sexual
banter, OCR may in certain circumstances find that the conduct was nevertheless
unwelcome if, for example, a teacher took an active role in the sexual banter
and a student reasonably perceived that the teacher expected him or her to
participate.
[57] The school bears
the burden of rebutting the presumption.
[58] Of course, nothing
in Title IX would prohibit a school from implementing policies prohibiting
sexual conduct or sexual relationships between students and adult employees.
[59] See note 58.
[60] Gebser, 524 U.S.
at 281 ("Franklin ... establishes that a school district can be held liable
in damages [in an implied action under Title IX] in cases involving a teacher's
sexual harassment of a student...."; 34 CFR 106.31; See 1997 Sexual Harassment
Guidance, 62 FR 12034.
[61] See Davis, 526 U.S.
at 653 (stating that harassment of a student by a teacher is more likely than
harassment by a fellow student to constitute the type of effective denial of
equal access to educational benefits that can breach the requirements of Title
IX).
[62] 34 CFR 106.31(b).
Cf. Gebser, 524 U.S. at 283-84 (Court recognized in an implied right of action
for money damages for teacher sexual harassment of a student that the question
of whether a violation of Title IX occurred is a separate question from the
scope of appropriate remedies for a violation).
[63] Davis, 526 U.S. at
646.
[64] See section on "Applicability
of Title IX" for scope of coverage.
[65] See section on "Notice
of Employee, Peer, or Third Party Harassment."
[66] See section on "Notice
of Employee, Peer, or Third Party Harassment."
[67] 34 CFR 106.31(b).
[68] 34 CFR 106.31(b).
[69] See section on "Notice
of Employee, Peer, or Third Party Harassment."
[70] Cf. Davis, 526 U.S.
at 646.
[71] 34 CFR 106.31(b).
[72] 34 CFR 106.31(b).
[73] Consistent with its
obligation under Title IX to protect students, cf. Gebser, 524 U.S. at 287,
OCR interprets its regulations to ensure that recipients take reasonable action
to address, rather than neglect, reasonably obvious discrimination. Cf. Gebser, 524 U.S. at 287-88; Davis, 526 U.S. at 650 (actual notice standard for obtaining
money damages in private lawsuit).
[74] Whether an employee
is a responsible employee or whether it would be reasonable for a student to
believe the employee is, even if the employee is not, will vary depending on
factors such as the age and education level of the student, the type of position
held by the employee, and school practices and procedures, both formal and
informal. The Supreme Court held that a school will only be liable for money damages
in a private lawsuit where there is actual notice to a school official with
the authority to address the alleged discrimination and take corrective action.
Gebser, 524 U.S. at 290, and Davis, 526 U.S. at 642. The concept of a "responsible
employee" under our guidance is broader. That is, even if a responsible
employee does not have the authority to address the discrimination and take
corrective action, he or she does have the obligation to report it to appropriate
school officials.
[75] The Title IX regulations
require that recipients designate at least one employee to coordinate its efforts
to comply with and carry out its responsibilities under the regulations, including
complaint investigations. 34 CFR 106.8(a).
[76] 34 CFR 106.31. See
Yates v. Avco Corp., 819 F.2d 630, 636 (6 th Cir. 1987); Katz v. Dole, 709
F.2d 251, 256 (4 th Cir. 1983).
[77] For example, a substantiated
report indicating that a high school coach has engaged in inappropriate physical
conduct of a sexual nature in several instances with different students may
suggest a pattern of conduct that should trigger an inquiry as to whether other
students have been sexually harassed by that coach. See also Doe v. School
Administrative Dist. No. 19, 66 F.Supp.2d 57, 63-64 and n.6 (D.Me. 1999) (in
a private lawsuit for money damages under Title IX in which a high school principal
had notice that a teacher may be engaging in a sexual relationship with one
underage student and did not investigate, and then the same teacher allegedly
engaged in sexual intercourse with another student, who did not report the
incident, the court indicated that the school's knowledge of the first relationship
may be sufficient to serve as actual notice of the second incident).
[78] Cf. Katz, 709 F.2d
at 256 (finding that the employer "should have been aware of the problem
both because of its pervasive character and because of [the employee's] specific
complaints ..."); Smolsky v. Consolidated Rail Corp., 780 F.Supp. 283,
293 (E.D. Pa. 1991), reconsideration denied, 785 F.Supp. 71 (E.D. Pa. 1992) "where
the harassment is apparent to all others in the work place, supervisors and
coworkers, this may be sufficient to put the employer on notice of the sexual
harassment" under Title VII); Jensen v. Eveleth Taconite Co., 824 F.Supp.
847, 887 (D.Minn. 1993); "[s]exual harassment ... was so pervasive that
an inference of knowledge arises .... The acts of sexual harassment detailed
herein were too common and continuous to have escaped Eveleth Mines had its
management been reasonably alert."); Cummings v. Walsh Construction Co., 561 F.Supp. 872, 878 (S.D. Ga. 1983) ("... allegations not only of the
[employee] registering her complaints with her foreman ... but also that sexual
harassment was so widespread that defendant had constructive notice of it" under
Title VII); but see Murray v. New York Univ. College of Dentistry, 57 F.3d
243, 250-51 (2 nd Cir. 1995) (concluding that other students knowledge of
the conduct was not enough to charge the school with notice, particularly because
these students may not have been aware that the conduct was offensive or abusive).
[79] 34 CFR 106.9 and
106.8(b).
[80] 34 CFR 106.8(b) and
106.31(b).
[81] 34 CFR 106.9.
[82] 34 CFR 106.8(b).
[83] 34 CFR 106.31.
[84] 34 CFR 106.31 and
106.3. Gebser, 524 U.S. at 288 ("In the event of a violation, [under
OCR's administrative enforcement scheme] a funding recipient may be required
to take 'such remedial action as [is] deem[ed] necessary to overcome the effects
of [the] discrimination.' §106.3.").
[85] 20 U.S.C. 1682.
In the event that OCR determines that voluntary compliance cannot be secured,
OCR may take steps that may result in termination of Federal funding through
administrative enforcement, or, alternatively, OCR may refer the case to the
Department of Justice for judicial enforcement.
[86] Schools have an obligation
to ensure that the educational environment is free of discrimination and cannot
fulfill this obligation without determining if sexual harassment complaints
have merit.
[87] In some situations,
for example, if a playground supervisor observes a young student repeatedly
engaging in conduct toward other students that is clearly unacceptable under
the school's policies, it may be appropriate for the school to intervene without
contacting the other students. It still may be necessary for the school to
talk with the students (and parents of elementary and secondary students) afterwards,
e.g., to determine the extent of the harassment and how it affected them.
[88] Gebser, 524 U.S.
at 288; Bundy v. Jackson, 641 F.2d 934, 947 (D.C. Cir. 1981) (employers should
take corrective and preventive measures under Title VII); accord, Jones v.
Flagship Int'l, 793 F.2d 714, 719-720 (5 th Cir. 1986) (employer should take
prompt remedial action under Title VII).
[89] See Doe ex rel. Doe
v. Dallas Indep. Sch. Dist., 220 F.3d 380 (5th Cir. 2000) (citing Waltman); Waltman, 875 F.2d at 479 (appropriateness of employers remedial action
under Title VII will depend on the "severity and persistence of the harassment
and the effectiveness of any initial remedial steps"); Dornhecker v. Malibu
Grand Prix Corp., 828 F.2d 307, 309-10 (5th Cir. 1987); holding that a company's
quick decision to remove the harasser from the victim was adequate remedial
action).
[90] See Intlekofer v.
Turnage, 973 F.2d 773, 779-780 (9th Cir. 1992)(holding that the employers
response was insufficient and that more severe disciplinary action was necessary
in situations in which counseling, separating the parties, and warnings of
possible discipline were ineffective in ending the harassing behavior).
[91] Offering assistance
in changing living arrangements is one of the actions required of colleges
and universities by the Campus Security Act in cases of rape and sexual assault.
See 20 U.S.C. 1092(f).
[92] See section on "Harassment
by Other Students or Third Parties."
[93] University of California
at Santa Cruz, OCR Case No. 09-93-2141 (extensive individual and group counseling);
Eden Prairie Schools, Dist. #272, OCR Case No. 05-92-1174 (counseling).
[94] Even if the harassment
stops without the school's involvement, the school may still need to take steps
to prevent or deter any future harassment -- to inform the school community
that harassment will not be tolerated. Wills v. Brown University, 184 F.3d
20, 28 (1st Cir. 1999) (difficult problems are posed in balancing a student's
request for anonymity or limited disclosure against the need to prevent future
harassment); Fuller v. City of Oakland, 47 F.3d 1522, 1528-29 (9th Cir. 1995)
(Title VII case).
[95] 34 CFR 106.8(b) and
106.71, incorporating by reference 34 CFR 100.7(e). The Title IX regulations
prohibit intimidation, threats, coercion, or discrimination against any individual
for the purpose of interfering with any right or privilege secured by Title
IX.
[96] Tacoma School Dist.
No. 10, OCR Case No. 10-94-1079 (due to the large number of students harassed
by an employee, the extended period of time over which the harassment occurred,
and the failure of several of the students to report the harassment, the school
committed as part of corrective action plan to providing training for students);
Los Medanos College, OCR Case No. 09-84-2092 (as part of corrective action
plan, school committed to providing sexual harassment seminar for campus employees);
Sacramento City Unified School Dist., OCR Case No. 09-83-1063 (same as to
workshops for management and administrative personnel and in-service training
for non-management personnel).
[97] In addition, if information
about the incident is contained in an "education record" of the student
alleging the harassment, as defined in the Family Educational Rights and Privacy
Act (FERPA), 20 U.S.C. 1232g, the school should consider whether FERPA would
prohibit the school from disclosing information without the student's consent.
Id. In evaluating whether FERPA would limit disclosure, the Department does
not interpret FERPA to override any federally protected due process rights
of a school employee accused of harassment.
[98] 34 CFR 106.8(b).
This requirement has been part of the Title IX regulations since their inception
in 1975. Thus, schools have been required to have these procedures in place
since that time. At the elementary and secondary level, this responsibility
generally lies with the school district. At the postsecondary level, there
may be a procedure for a particular campus or college or for an entire university
system.
[99] Fenton Community High
School Dist. #100, OCR Case 05-92-1104.
[100] While a school
is required to have a grievance procedure under which complaints of sex discrimination
(including sexual harassment) can be filed, the same procedure may also be
used to address other forms of discrimination.
[101] See generally
Meritor, 477 U.S. at 72-73 (holding that "mere existence of a grievance
procedure" for discrimination does not shield an employer from a sexual
harassment claim).
[102] The Family Educational
Rights and Privacy Act (FERPA) does not prohibit a student from learning the
outcome of her complaint, i.e., whether the complaint was found to be credible
and whether harassment was found to have occurred. It is the Department's
current position under FERPA that a school cannot release information to a
complainant regarding disciplinary action imposed on a student found guilty
of harassment if that information is contained in a student's education record
unless — (1) the information directly relates to the complainant (e.g., an
order requiring the student harasser not to have contact with the complainant);
or (2) the harassment involves a crime of violence or a sex offense in a postsecondary
institution. See note 97. If the alleged harasser is a teacher, administrator,
or other non-student employee, FERPA would not limit the school's ability to
inform the complainant of any disciplinary action taken.
[103] The section in
the guidance on "Recipient's Response" provides examples of reasonable
and appropriate corrective action.
[104] 34 CFR 106.8(a).
[105] Id.
[106] See Meritor,
477 U.S. at 72-73.
[107] University of
California, Santa Cruz, OCR Case No. 09-93-2131. This is true for formal
as well as informal complaints. See University of Maine at Machias, OCR Case
No. 01-94-6001 (school's new procedures not found in violation of Title IX
in part because they require written records for informal as well as formal
resolutions). These records need not be kept in a student's or employee's
individual file, but instead may be kept in a central confidential location.
[108] For example,
in Cape Cod Community College, OCR Case No. 01-93-2047, the College was found
to have violated Title IX in part because the person identified by the school
as the Title IX coordinator was unfamiliar with Title IX, had no training,
and did not even realize he was the coordinator.
[109] Indeed, in University
of Maine at Machias, OCR Case No. 01-94-6001, OCR found the school's procedures
to be inadequate because only formal complaints were investigated. While a
school isn't required to have an established procedure for resolving informal
complaints, they nevertheless must be addressed in some way. However, if there
are indications that the same individual may be harassing others, then it may
not be appropriate to resolve an informal complaint without taking steps to
address the entire situation.
[110] Academy School
Dist. No 20, OCR Case No. 08-93-1023 (school's response determined to be insufficient
in a case in which it stopped its investigation after complaint filed with
police); Mills Public School Dist., OCR Case No. 01-93-1123, (not sufficient
for school to wait until end of police investigation).
[111] Cf. EEOC v. Board
of Governors of State Colleges and Universities, 957 F.2d 424 (7th Cir. 1992),
cert. denied , 506 U.S. 906 (1992).
[112] The First Amendment
applies to entities and individuals that are State actors. The receipt of
Federal funds by private schools does not directly subject those schools to
the U.S. Constitution. See Rendell-Baker v. Kohn, 457 U.S. 830, 840 (1982).
However, all actions taken by OCR must comport with First Amendment principles,
even in cases involving private schools that are not directly subject to the
First Amendment.
[113] See, e.g., George
Mason University, OCR Case No. 03-94-2086 (law professor's use of a racially
derogatory word, as part of an instructional hypothetical regarding verbal
torts, did not constitute racial harassment); Portland School Dist. 1J, OCR
Case No. 10-94-1117 (reading teacher's choice to substitute a less offensive
term for a racial slur when reading an historical novel aloud in class constituted
an academic decision on presentation of curriculum, not racial harassment).
[114] See Iota Xi Chapter
of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386 (4th Cir.
1993) (fraternity skit in which white male student dressed as an offensive
caricature of a black female constituted student expression).
[115] See Florida Agricultural
and Mechanical University, OCR Case No. 04-92-2054 (no discrimination in case
in which campus newspaper, which welcomed individual opinions of all sorts,
printed article expressing one student's viewpoint on white students on campus.)
[116] Tinker v. Des
Moines Indep. Community Sch. Dist., 393 U.S. 503, 506 (1969) (neither students
nor teachers shed their constitutional rights to freedom of expression at the
schoolhouse gates); Cf. Cohen v. San Bernardino Valley College, 92 F.3d 968,
972 (9th Cir. 1996) (holding that a college professor could not be punished
for his longstanding teaching methods, which included discussion of controversial
subjects such as obscenity and consensual sex with children, under an unconstitutionally
vague sexual harassment policy); George Mason University, OCR Case No. 03-94-2086
(law professor's use of a racially derogatory word, as part of an instructional
hypothetical regarding verbal torts, did not constitute racial harassment.)
[117] See, e.g., University
of Illinois, OCR Case No. 05-94-2104 (fact that university's use of Native
American symbols was offensive to some Native American students and employees
was not dispositive, in and of itself, in assessing a racially hostile environment
claim under Title VI.)
[118] See Meritor,
477 U.S. at 67 (the "mere utterance of an ethnic or racial epithet which
engenders offensive feelings in an employee" would not affect the conditions
of employment to a sufficient degree to violate Title VII), quoting Henson, 682 F.2d at 904; cf. R.A.V. v. City of St. Paul, 505 U.S. 377, 389 (1992)
(citing with approval EEOC's sexual harassment guidelines); Monteiro, 158
F.3d at 1032-34 (9 th Cir. 1998) (citing with approval OCR's racial harassment
investigative guidance).
[119] Compare Bethel
School Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986) (Court upheld discipline
of high school student for making lewd speech to student assembly, noting that "[t]he
undoubted freedom to advocate unpopular and controversial issues in schools
must be balanced against the society's countervailing interest in teaching
students the boundaries of socially appropriate behavior."), with Iota
Xi, 993 F.2d 386 (holding that, notwithstanding a university's mission to
create a culturally diverse learning environment and its substantial interest
in maintaining a campus free of discrimination, it could not punish students
who engaged in an offensive skit with racist and sexist overtones).
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