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Q&A
on Campus Sexual Misconduct
Under Title IX of the Education Amendments of 1972 and
its implementing regulations, an institution that receives federal funds must ensure
that no student suffers a deprivation of her or his access to educational
opportunities on the basis of sex. The Department of Education intends to engage
in rulemaking on the topic of schools’ Title IX responsibilities concerning
complaints of sexual misconduct, including peer-on-peer sexual harassment and
sexual violence. The Department will solicit input from stakeholders and the
public during that rulemaking process. In the interim, these questions and
answers—along with the Revised Sexual
Harassment Guidance previously issued by the Office for Civil Rights[1]—provide information about
how OCR will assess a school’s compliance with Title IX.
SCHOOLS’
RESPONSIBILITY TO ADDRESS SEXUAL MISCONDUCT
Question 1:
What is the nature of a school’s responsibility to
address sexual misconduct?
Answer:
Whether or not a student files a complaint of alleged
sexual misconduct or otherwise asks the school to take action, where the school
knows or reasonably should know of an incident of sexual misconduct, the school
must take steps to understand what occurred and to respond appropriately.[2] In particular, when sexual
misconduct is so severe, persistent, or pervasive as to deny or limit a
student’s ability to participate in or benefit from the school’s programs or activities,
a hostile environment exists and the school must respond.[3]
Each recipient must designate at least one employee to
act as a Title IX Coordinator to coordinate its responsibilities in this area.[4] Other employees may be
considered “responsible employees” and will help the student to connect to the
Title IX Coordinator.[5]
In regulating the conduct of students and faculty to
prevent or redress discrimination, schools must formulate, interpret, and apply
their rules in a manner that respects the legal rights of students and faculty,
including those court precedents interpreting the concept of free speech.[6]
THE
CLERY ACT AND TITLE IX
Question 2:
What is the Clery Act and how does it relate to a
school’s obligations under Title IX?
Answer:
Institutions of higher education that participate in the
federal student financial aid programs are subject to the requirements of the
Clery Act as well as Title IX.[7] Each year, institutions
must disclose campus crime statistics and information about campus security
policies as a condition of participating in the federal student aid programs.
The Violence Against Women Reauthorization Act of 2013 amended the Clery Act to
require institutions to compile statistics for incidents of dating violence,
domestic violence, sexual assault, and stalking, and to include certain
policies, procedures, and programs pertaining to these incidents in the annual
security reports. In October 2014, following a negotiated rulemaking process,
the Department issued amended regulations to implement these statutory changes.[8] Accordingly, when
addressing allegations of dating violence, domestic violence, sexual assault,
or stalking, institutions are subject to the Clery Act regulations as well as
Title IX.
INTERIM
MEASURES
Question 3:
What are interim measures and is a school required to
provide such measures?
Answer:
Interim measures are individualized services offered as
appropriate to either or both the reporting and responding parties involved in
an alleged incident of sexual misconduct, prior to an investigation or while an
investigation is pending.[9] Interim measures include
counseling, extensions of time or other course-related adjustments,
modifications of work or class schedules, campus escort services, restrictions
on contact between the parties, changes in work or housing locations, leaves of
absence, increased security and monitoring of certain areas of campus, and
other similar accommodations.
It may be appropriate for a school to take interim
measures during the investigation of a complaint.[10] In fairly assessing the need
for a party to receive interim measures, a school may not rely on fixed rules
or operating assumptions that favor one party over another, nor may a school
make such measures available only to one party. Interim measures should be
individualized and appropriate based on the information gathered by the Title
IX Coordinator, making every effort to avoid depriving any student of her or
his education. The measures needed by each student may change over time, and
the Title IX Coordinator should communicate with each student throughout the
investigation to ensure that any interim measures are necessary and effective
based on the students’ evolving needs.
GRIEVANCE
PROCEDURES AND INVESTIGATIONS
Question 4:
What are the school’s obligations with regard to complaints
of sexual misconduct?
Answer:
A school must adopt and publish grievance procedures that
provide for a prompt and equitable resolution of complaints of sex
discrimination, including sexual misconduct.[11] OCR has identified a
number of elements in evaluating whether a school’s grievance procedures are
prompt and equitable, including whether the school (i) provides notice of
the school’s grievance procedures, including how to file a complaint, to
students, parents of elementary and secondary school students, and employees;
(ii) applies the grievance procedures to complaints filed by students or
on their behalf alleging sexual misconduct carried out by employees, other
students, or third parties; (iii) ensures an adequate, reliable, and
impartial investigation of complaints, including the opportunity to present
witnesses and other evidence; (iv) designates and follows a reasonably
prompt time frame for major stages of the complaint process; (v) notifies
the parties of the outcome of the complaint; and (vi) provides assurance
that the school will take steps to prevent recurrence of sexual misconduct and to
remedy its discriminatory effects, as appropriate.[12]
Question 5:
What time frame constitutes a “prompt” investigation?
Answer:
There is no fixed time frame under which a school must
complete a Title IX investigation.[13] OCR will evaluate a school’s
good faith effort to conduct a fair, impartial investigation in a timely manner
designed to provide all parties with resolution.
Question 6:
What constitutes an “equitable” investigation?
Answer:
In every investigation conducted under the school’s
grievance procedures, the burden is on the school—not on the parties—to gather
sufficient evidence to reach a fair, impartial determination as to whether
sexual misconduct has occurred and, if so, whether a hostile environment has
been created that must be redressed. A person free of actual or reasonably
perceived conflicts of interest and biases for or against any party must lead
the investigation on behalf of the school. Schools should ensure that institutional
interests do not interfere with the impartiality of the investigation.
An equitable investigation of a Title IX complaint requires
a trained investigator to analyze and document the available evidence to
support reliable decisions, objectively evaluate the credibility of parties and
witnesses, synthesize all available evidence—including both inculpatory and
exculpatory evidence—and take into account the unique and complex circumstances
of each case.[14]
Any rights or opportunities that a school makes available
to one party during the investigation should be made available to the other
party on equal terms.[15] Restricting the ability
of either party to discuss the investigation (e.g., through “gag orders”) is
likely to deprive the parties of the ability to obtain and present evidence or
otherwise to defend their interests and therefore is likely inequitable. Training
materials or investigative techniques and approaches that apply sex stereotypes
or generalizations may violate Title IX and should be avoided so that the
investigation proceeds objectively and impartially.[16]
Once it decides to open an investigation that may lead to
disciplinary action against the responding party, a school should provide written
notice to the responding party of the allegations constituting a potential
violation of the school’s sexual misconduct policy, including sufficient
details and with sufficient time to prepare a response before any initial
interview. Sufficient details include the identities of the parties involved, the
specific section of the code of conduct allegedly violated, the precise conduct
allegedly constituting the potential violation, and the date and location of
the alleged incident.[17] Each party should receive
written notice in advance of any interview or hearing with sufficient time to
prepare for meaningful participation. The investigation should result in a
written report summarizing the relevant exculpatory and inculpatory evidence.
The reporting and responding parties and appropriate officials must have timely
and equal access to any information that will be used during informal and
formal disciplinary meetings and hearings.[18]
INFORMAL
RESOLUTIONS OF COMPLAINTS
Question 7:
After a Title IX complaint has been opened for
investigation, may a school facilitate an informal resolution of the complaint?
Answer:
If all parties voluntarily agree to participate in an
informal resolution that does not involve a full investigation and adjudication
after receiving a full disclosure of the allegations and their options for
formal resolution and if a school determines that the particular Title IX
complaint is appropriate for such a process, the school may facilitate an
informal resolution, including mediation, to assist the parties in reaching a
voluntary resolution.
DECISION-MAKING
AS TO RESPONSIBILITY
Question 8:
What procedures should a school follow to adjudicate a
finding of responsibility for sexual misconduct?
Answer:
The investigator(s), or separate decision-maker(s), with
or without a hearing, must make findings of fact and conclusions as to whether
the facts support a finding of responsibility for violation of the school’s
sexual misconduct policy. If the complaint presented more than a single
allegation of misconduct, a decision should be reached separately as to each
allegation of misconduct. The findings of fact and conclusions should be
reached by applying either a preponderance of the evidence standard or a clear
and convincing evidence standard.[19]
The decision-maker(s) must offer each party the same
meaningful access to any information that will be used during informal and
formal disciplinary meetings and hearings, including the investigation report.[20] The parties should have
the opportunity to respond to the report in writing in advance of the decision
of responsibility and/or at a live hearing to decide responsibility.
Any process made available to one party in the
adjudication procedure should be made equally available to the other party (for
example, the right to have an attorney or other advisor present and/or
participate in an interview or hearing; the right to cross-examine parties and
witnesses or to submit questions to be asked of parties and witnesses).[21] When resolving
allegations of dating violence, domestic violence, sexual assault, or stalking,
a postsecondary institution must “[p]rovide the accuser and the accused with
the same opportunities to have others present during any institutional
disciplinary proceeding, including the opportunity to be accompanied to any
related meeting or proceeding by the advisor of their choice.”[22] In such disciplinary
proceedings and any related meetings, the institution may “[n]ot limit the
choice of advisor or presence for either the accuser or the accused” but “may
establish restrictions regarding the extent to which the advisor may
participate in the proceedings.”[23]
Schools are cautioned to avoid conflicts of interest and biases
in the adjudicatory process and to prevent institutional interests from
interfering with the impartiality of the adjudication. Decision-making techniques
or approaches that apply sex stereotypes or generalizations may violate Title
IX and should be avoided so that the adjudication proceeds objectively and
impartially.
DECISION-MAKING
AS TO DISCIPLINARY SANCTIONS
Question 9:
What procedures should a school follow to impose a
disciplinary sanction against a student found responsible for a sexual
misconduct violation?
Answer:
The decision-maker as to any disciplinary sanction imposed
after a finding of responsibility may be the same or different from the
decision-maker who made the finding of responsibility. Disciplinary sanction
decisions must be made for the purpose of deciding how best to enforce the
school’s code of student conduct while considering the impact of separating a
student from her or his education. Any disciplinary decision must be made as a
proportionate response to the violation.[24] In its annual security
report, a postsecondary institution must list all of the possible sanctions
that the institution may impose following the results of any institutional
disciplinary proceeding for an allegation of dating violence, domestic
violence, sexual assault, or stalking.[25]
NOTICE
OF OUTCOME AND APPEALS
Question 10:
What information should be provided to the parties to
notify them of the outcome?
Answer:
OCR recommends that a school provide written notice of
the outcome of disciplinary proceedings to the reporting and responding parties
concurrently. The content of the notice may vary depending on the underlying
allegations, the institution, and the age of the students. Under the Clery Act,
postsecondary institutions must provide simultaneous written notification to
both parties of the results of the disciplinary proceeding along with notification
of the institution’s procedures to appeal the result if such procedures are
available, and any changes to the result when it becomes final.[26] This notification must
include any initial, interim, or final decision by the institution; any
sanctions imposed by the institution; and the rationale for the result and the
sanctions.[27]
For proceedings not covered by the Clery Act, such as those arising from
allegations of harassment, and for all proceedings in elementary and secondary
schools, the school should inform the reporting party whether it found that the
alleged conduct occurred, any individual remedies offered to the reporting
party or any sanctions imposed on the responding party that directly relate to
the reporting party, and other steps the school has taken to eliminate the
hostile environment, if the school found one to exist.[28] In an elementary or
secondary school, the notice should be provided to the parents of students
under the age of 18 and directly to students who are 18 years of age or older.[29]
Question 11:
How may a school offer the right to appeal the decision
on responsibility and/or any disciplinary decision?
Answer:
If a school chooses to allow appeals from its decisions
regarding responsibility and/or disciplinary sanctions, the school may choose
to allow appeal (i) solely by the responding party; or (ii) by both parties,
in which case any appeal procedures must be equally available to both parties.[30]
EXISTING
RESOLUTION AGREEMENTS
Question 12:
In light of the rescission of OCR’s 2011 Dear Colleague
Letter and 2014 Questions & Answers guidance, are existing resolution
agreements between OCR and schools still binding?
Answer:
Yes. Schools enter into voluntary resolution agreements
with OCR to address the deficiencies and violations identified during an OCR
investigation based on Title IX and its implementing regulations. Existing
resolution agreements remain binding upon the schools that voluntarily entered
into them. Such agreements are fact-specific and do not bind other schools. If
a school has questions about an existing resolution agreement, the school may
contact the appropriate OCR regional office responsible for the monitoring of
its agreement.
Note: The Department has
determined that this Q&A is a significant guidance document under the Final
Bulletin for Agency Good Guidance Practices of the Office of Management and
Budget, 72 Fed. Reg. 3432 (Jan. 25, 2007). This document does not add
requirements to applicable law. If you have questions or are interested in
commenting on this document, please contact the Department of Education at
ocr@ed.gov or 800-421-3481 (TDD: 800-877-8339).
[1] Office for Civil Rights, Revised Sexual Harassment Guidance (66 Fed. Reg. 5512, Jan. 19,
2001), available at http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf
[hereinafter 2001 Guidance]; see also Office
for Civil Rights, Dear Colleague Letter on Sexual Harassment (Jan. 25, 2006), available at
https://www2.ed.gov/about/offices/list/ocr/letters/sexhar-2006.html.
[2] 2001
Guidance at (VII).
[3] Davis v. Monroe Cty. Bd. of Educ., 526
U.S. 629, 631 (1999); 34 C.F.R. § 106.31(a); 2001 Guidance at (V)(A)(1).
Title IX prohibits discrimination on the basis of sex “under any education
program or activity” receiving federal financial assistance, 20 U.S.C.
§ 1681(a); 34 C.F.R. § 106.1, meaning within the “operations” of a
postsecondary institution or school district, 20 U.S.C. § 1687; 34 C.F.R.
§ 106.2(h). The Supreme Court has explained that the statute “confines the
scope of prohibited conduct based on the recipient’s degree of control over the
harasser and the environment in which the harassment occurs.” Davis, 526 U.S. at 644. Accordingly, OCR
has informed institutions that “[a] university does not have a duty under Title
IX to address an incident of alleged harassment where the incident occurs
off-campus and does not involve a program or activity of the recipient.”
Oklahoma State University Determination Letter at 2, OCR Complaint No. 06-03-2054
(June 10, 2004); see also University
of Wisconsin-Madison Determination Letter, OCR Complaint No. 05-07-2074 (Aug.
6, 2009) (“OCR determined that the alleged assault did not occur in the context
of an educational program or activity operated by the University.”). Schools
are responsible for redressing a hostile environment that occurs on campus even
if it relates to off-campus activities. Under the Clery Act, postsecondary
institutions are obliged to collect and report statistics on crimes that occur
on campus, on noncampus properties controlled by the institution or an
affiliated student organization and used for educational purposes, on public
property within or immediately adjacent to campus, and in areas within the
patrol jurisdiction of the campus police or the campus security department. 34
C.F.R. § 668.46(a); 34 C.F.R. § 668.46(c).
[4] 34
C.F.R. § 106.8(a).
[5]
2001 Guidance at (V)(C).
[6]
Office for Civil Rights, Dear Colleague Letter on the First Amendment (July 28,
2003), available at https://www2.ed.gov/about/offices/list/ocr/firstamend.html;
2001 Guidance at (XI).
[7] Jeanne
Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, Pub. L. No.
101-542, 20 U.S.C. § 1092(f).
[8] See 34 C.F.R. § 668.46.
[9] See 2001 Guidance at (VII)(A).
[10]
2001 Guidance at (VII)(A). In cases covered by the Clery Act, a school must
provide interim measures upon the request of a reporting party if such measures
are reasonably available. 34 C.F.R. § 668.46(b)(11)(v).
[11]
34 C.F.R. § 106.8(b); 2001 Guidance at (V)(D); see also 34 C.F.R. § 668.46(k)(2)(i) (providing that a
proceeding which arises from an allegation of dating violence, domestic
violence, sexual assault, or stalking must “[i]nclude a prompt, fair, and
impartial process from the initial investigation to the final result”).
[12]
2001 Guidance at (IX); see also 34
C.F.R. § 668.46(k). Postsecondary institutions are required to report
publicly the procedures for institutional disciplinary action in cases of
alleged dating violence, domestic violence, sexual assault, and stalking, 34
C.F.R. § 668.46 (k)(1)(i), and to include a process that allows for the
extension of timeframes for good cause with written notice to the parties of
the delay and the reason for the delay, 34 C.F.R. § 668.46
(k)(3)(i)(A).
[13]
2001 Guidance at (IX); see also 34
C.F.R. § 668.46(k)(3)(i)(A).
[14]
2001 Guidance at (V)(A)(1)-(2); see also 34
C.F.R. § 668.46(k)(2)(ii).
[15]
2001 Guidance at (X).
[16]
34 C.F.R. § 106.31(a).
[17]
2001 Guidance at (VII)(B).
[18] 34
C.F.R. § 668.46(k)(3)(i)(B)(3).
[19]
The standard of evidence for evaluating a claim of sexual misconduct should be
consistent with the standard the school applies in other student misconduct
cases. In a recent decision, a court concluded that a school denied “basic fairness”
to a responding party by, among other things, applying a lower standard of evidence
only in cases of alleged sexual misconduct. Doe
v. Brandeis Univ., 177 F. Supp. 3d 561, 607 (D. Mass. 2016)
(“[T]he lowering of the standard appears to have been a deliberate choice by
the university to make cases of sexual misconduct easier to prove—and thus more
difficult to defend, both for guilty and innocent students alike. It retained
the higher standard for virtually all other forms of student misconduct. The
lower standard may thus be seen, in context, as part of an effort to tilt the
playing field against accused students, which is particularly troublesome in
light of the elimination of other basic rights of the accused.”). When a school
applies special procedures in sexual misconduct cases, it suggests a
discriminatory purpose and should be avoided. A postsecondary institution’s annual
security report must describe the standard of evidence that will be used during
any institutional disciplinary proceeding arising from an allegation of dating
violence, domestic violence, sexual assault, or stalking. 34 C.F.R. § 668.46(k)(1)(ii).
[20]
34 C.F.R. § 668.46(k)(3)(i)(B)(3).
[21] A
school has discretion to reserve a right of appeal for the responding party
based on its evaluation of due process concerns, as noted in Question 11.
[22]
34 C.F.R. § 668.46(k)(2)(iii).
[23]
34 C.F.R. § 668.46(k)(2)(iv).
[24]
34 C.F.R. § 106.8(b); 2001 Guidance at (VII)(A).
[25]
34 C.F.R. § 668.46(k)(1)(iii).
[26]
34 C.F.R. § 668.46(k)(2)(v). The Clery Act applies to proceedings arising
from allegations of dating violence, domestic violence, sexual assault, and
stalking.
[27]
34 C.F.R. § 668.46(k)(3)(iv).
[28] A
sanction that directly relates to the reporting party would include, for
example, an order that the responding party stay away from the reporting party.
See 2001 Guidance at vii n.3. This
limitation allows the notice of outcome to comply with the requirements of the Family
Educational Rights and Privacy Act. See 20
U.S.C. § 1232g(a)(1)(A); 34 C.F.R. § 99.10; 34 C.F.R. § 99.12(a).
FERPA provides an exception to its requirements only for a postsecondary
institution to communicate the results of a disciplinary proceeding to the
reporting party in cases of alleged crimes of violence or specific nonforcible
sex offenses. 20 U.S.C. § 1232g(b)(6); 34 C.F.R. § 99.31(a)(13).
[29] 20
U.S.C. § 1232g(d).
[30]
2001 Guidance at (IX). Under the Clery Act, a postsecondary institution must
provide simultaneous notification of the appellate procedure, if one is available,
to both parties. 34 C.F.R. § 668.46(k)(2)(v)(B). OCR has previously
informed schools that it is permissible to allow an appeal only for the
responding party because “he/she is the one who stands to suffer from any
penalty imposed and should not be made to be tried twice for the same
allegation.” Skidmore College Determination Letter at 5, OCR Complaint No.
02-95-2136 (Feb. 12, 1996); see also Suffolk
University Law School Determination Letter at 11, OCR Complaint No. 01-05-2074
(Sept. 30, 2008) (“[A]ppeal rights are not necessarily required by Title IX,
whereas an accused student’s appeal rights are a standard component of
University disciplinary processes in order to assure that the student is
afforded due process before being removed from or otherwise disciplined by the
University.”); University of Cincinnati Determination Letter at 6, OCR
Complaint No. 15-05-2041 (Apr. 13, 2006) (“[T]here is no requirement under
Title IX that a recipient provide a victim’s right of appeal.”).
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