New OCR Guidance on Responding to Sexual Harassment and Sexual Violence on Campus: What Colleges and Universities Should Do Now

On April 4, 2011, the U.S. Department of Education Office for Civil Rights (OCR) published a “Dear Colleague” letter regarding sexual harassment and sexual violence and, specifically, the responsibility of schools under Title IX to appropriately address these issues. The new guidance suggests that compliance with Title IX with regard to sexual harassment has become a top enforcement priority. It comes on the heels of several well-publicized complaints filed with OCR and compliance reviews initiated by OCR regarding Title IX and sexual harassment.

Background

On March 15, 2011, sixteen Yale students and alumni filed a complaint with OCR, alleging that the University failed to eliminate a hostile sexual environment. At the end of 2010, OCR posted compliance reviews of Eastern Michigan University and Notre Dame College in Ohio on its website that it initiated as a result of reports of sexually violent incidents at these two schools. In addition, a complaint was filed with OCR against Harvard Law School, alleging problems with the School's policy on responding to sexual assaults.

The message is clear: OCR is focusing on the issue of sexual harassment and sexual assault on campuses. Following are steps that colleges and universities would be well advised to take now to ensure that they are in compliance with Title IX requirements and OCR guidance:

1. Update non-discrimination policies for compliance with Title IX

• Non-discrimination policies must state specifically that sexual harassment is a form of sex discrimination prohibited under Title IX. OCR expects an institution’s non-discrimination policy to state that sex discrimination encompasses sexual harassment and sexual violence, and to include examples.
• Non-discrimination policies must identify the institution’s Title IX Coordinator and provide his/her contact information. While many employees may assist in Title IX compliance, OCR looks for one person as the designated Title IX Coordinator. If the institution has additional coordinators to assist the primary Title IX Coordinator, its publications should make clear the scope of each assistant coordinator’s responsibilities.
• Ensure consistency in various publications. The Title IX coordinator(s) listed in handbooks and other publications should be the same as those listed in the Non-discrimination Policy to avoid confusion.
• Review all non-discrimination policies. Title IX is one of several statutes that prohibit gender discrimination in both the educational and employment contexts. Other statutes, such as Section 504 of the Rehabilitation Act of 1973, also require colleges and universities to designate a coordinator. Accordingly, in updating their policies for Title IX compliance, colleges and universities should review all of their non-discrimination policies to ensure compliance with legal requirements and facilitate coordination of training, investigation and implementation.

2. Provide appropriate training/education

• Properly train the Title IX Coordinator. OCR requires that Title IX Coordinators receive training on what constitutes sexual harassment and that they understand how their institutions' grievance procedures operate. In addition, OCR required in its Resolution Agreement with Notre Dame College that the Title IX Coordinator training include information on the investigation of Title IX complaints, the responsibility of the Title IX Coordinator to regularly develop and participate in activities designed to raise awareness about sex discrimination, and the existence of OCR and its responsibility to enforce Title IX.
• Properly train any other individuals with roles in the Title IX policies and grievance procedures. Individuals whom the institution designates to implement its non-discrimination policies – whether in the role of providing educational programs, investigating complaints or enforcing remedies – must receive sufficient training. OCR also recommends training any employee likely to witness or receive reports of sexual harassment and/or sexual violence.
• Take proactive steps to prevent sex discrimination. OCR recommends a number of proactive steps to prevent conduct prohibited under Title IX, such as training for student advisors in residence halls; training for student athletes and coaches; and orientation programs for new students, faculty, staff, and employees. Colleges and universities should take these types of proactive steps to prevent all types of unlawful discrimination and harassment on their campuses.

3. Update grievance procedures

• Review grievance procedures to ensure they provide for “prompt and equitable” resolution required under Title IX. Title IX regulations require that institutions “adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging any action" prohibited by Title IX.
• Provide advance notice to students and employees of required grievance procedures. The notice should include where to bring complaints alleging discrimination. For example, make sure there is no confusion as to whom a student should bring a complaint if the alleged harasser is a member of the staff or faculty, or some other non-student.
• Provide adequate, reliable, and impartial investigations of complaints. OCR expects an equal opportunity for both parties to present witnesses and other evidence; a preponderance of the evidence standard; and adequate training or experience for those handling sexual harassment and sexual violence complaints. Note that OCR has stated that if a complainant requests confidentiality, an institution should take all reasonable steps to investigate and respond to the complaint consistent with this request.
• Have designated and reasonably prompt time frames for the major stages of the complaint process. OCR looks to see if institutions provide reasonably prompt time frames for the following steps: completing the full investigation; periodic status updates; providing a response regarding outcome of the complaint; and filing of appeals, if applicable.
• Provide written notice to parties of the outcome of the grievance. OCR requires that both parties receive written notice of the outcome of the complaint and any appeal. OCR recommends that institutions provide written documentation to the complainant and alleged perpetrator concurrently. Colleges and universities must balance their obligations under Title IX, FERPA, and privacy statutes when disclosing such information.
• Take steps to prevent recurrence and correct discriminatory effects. Although criminal investigations and student disciplinary proceedings focus on sanctioning the perpetrator, Title IX requires that institutions also provide victim-specific remedies. OCR suggests several such remedies including counseling, academic support services such as tutoring, and allowing a victim to re-take a course. It is not sufficient for a school to respond to a finding of sexual harassment only by punishing the perpetrator.

4. If student disciplinary procedures are used for Title IX grievances, review procedures for compliance with Title IX

Although student disciplinary procedures can be used for Title IX investigations, OCR has raised concerns when such procedures, which often are designed to address a wide range of student conduct issues, do not satisfy Title IX requirements. With this in mind, institutions using general student disciplinary procedures to address student-to-student sexual harassment complaints should exercise caution, and consider the following:

• How will complaints by students against faculty or staff be addressed? Policies must be clear about who investigates a claim of sexual harassment brought by a student against a member of the staff or faculty, or other non-student, and what processes govern that investigation.
• Is the alleged perpetrator allowed to be present at all stages of the student conduct hearing? Notre Dame College’s student disciplinary procedure allowed the alleged perpetrator to be present at all stages of the hearing. OCR expressed concern that this could cause a victim of sexual harassment to decide not to pursue his/her complaint.
• What standard is used during the student disciplinary proceedings? Under Title IX, a “preponderance of the evidence” standard must be used. OCR does not accept use of a higher standard such as “clear and convincing.”
• Are both the complainant and the alleged perpetrator allowed to appeal a finding or sanction? OCR does not require an appeal, but makes it clear that any appeal process be available to both the complainant and the alleged perpetrator.
• Does everyone involved in implementing the student disciplinary proceedings have appropriate Title IX training? If students are involved in conducting an investigation of a complaint of sexual harassment, or if they have any decision-making roles, they also must have appropriate training.

5. Review school response when police are involved in a criminal investigation

• Do not wait until the police are finished investigating a criminal complaint to start a Title IX investigation. OCR’s position is that an institution is responsible for conducting a Title IX investigation even if police are conducting a separate criminal investigation. OCR recognizes that an institution may need to delay temporarily the Title IX investigation while police gather evidence, but the institution must resume its own fact-finding once the police have completed their evidence gathering. Interim steps must be taken to ensure safety. These situations are often complicated and require balancing multiple considerations.
• Review agreements with local police departments. OCR will not accept an institution’s agreement with a local police department regarding potential crimes on campus as an acceptable explanation for the institution not to investigate a Title IX complaint. These situations require individualized assessment based upon the specific facts or unique circumstances of each case.

OCR’s guidance provides useful direction for colleges and universities. In some instances, however, the guidance raises questions about how institutions should balance overlapping or conflicting obligations to members of their communities. Therefore, it is important for colleges and universities to remain mindful of their broad array of legal obligations and duties as they incorporate the guidance offered by OCR into their Title IX compliance programs.