[Federal Register: October 4, 1996 (Volume 61, Number 194)]
[Notices]
[Page 52171-52183]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[[Page 52171]]
_______________________________________________________________________
Part III
Department of Education
_______________________________________________________________________
Sexual Harassment Guidance: Harassment of Students by School Employees;
Notice
[[Page 52172]]
DEPARTMENT OF EDUCATION
Office for Civil Rights Sexual Harassment Guidance: Harassment of
Students by School Employees
ACTION: Request for comments.
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SUMMARY: The Assistant Secretary for Civil Rights issues a draft
document entitled ``Sexual Harassment Guidance: Harassment of Students
by School Employees'' (Guidance).
The Guidance provides educational institutions with information
regarding the standards used by the Office for Civil Rights (OCR) to
investigate and resolve cases involving claims that sexual harassment
of students by employees has created a hostile environment in violation
of Title IX of the Education Amendments of 1972. Title IX prohibits
gender discrimination in education programs that receive Federal
financial assistance.
The Assistant Secretary solicits from all interested parties
written comments on the clarity and completeness of the Guidance, which
is appended to this notice as Appendix One.
DATES: Comments on the Guidance must be received on or before November
18, 1996.
ADDRESSES: All comments concerning the Guidance should be addressed to
Howard I. Kallem, U.S. Department of Education, 600 Independence
Avenue, S.W., Room 5414 Switzer Building, Washington, D.C. 20202-1174.
Telephone: (202) 205-9641.
FOR FURTHER INFORMATION CONTACT: Howard I. Kallem. Telephone (202) 205-
9641. Individuals who use a telecommunications device for the deaf
(TDD) may call the TDD number at (202) 205-9683 or 1-800-421-3481.
Internet: Howard __Kallem@ed.gov
SUPPLEMENTARY INFORMATION: The purpose of the Guidance is to inform
educational institutions that receive Federal financial assistance
regarding the standards that OCR follows, and that the institutions
should follow, when investigating allegations that Title IX has been
violated because of sexual harassment of students by employees.
Consistent with the Supreme Court's decision in Franklin v. Gwinnett
County Public Schools, 503 U.S. 60 (1992) (holding that a student may
sue a school district for damages based on sexual harassment by a
teacher), OCR has applied Title IX to prohibit sexual harassment of
students by school employees. The standards in the Guidance reflect
OCR's longstanding nationwide practice and reflect well established
legal principles developed under Title VII of the Civil Rights Act of
1964, which prohibits gender discrimination in employment. The
Department is accepting public comment on whether the Guidance in
Appendix One is clear and complete.
On August 16, 1996, the Assistant Secretary published a notice in
the Federal Register (61 FR 42728) announcing the availability, upon
request, of a document entitled ``Sexual Harassment Guidance: Peer
Sexual Harassment'' and invited comments on the document. A copy of the
Peer Harassment Guidance is appended to this notice as Appendix Two for
the convenience of the readers of the Guidance issued today.
Once the comments are assessed, OCR plans to publish a single
document in the Federal Register combining the guidance found in
Appendix One and Appendix Two.
Invitation to Comment
Interested persons are invited to submit comments and
recommendations on the clarity and completeness of the Guidance in
Appendix One.
All comments submitted in response to this notice will be available
for public inspection, during and after the comment period, in Room
5414, 330 C Street, S.W., Washington, D.C., between the hours of 8:30
a.m. and 4:00 p.m., Monday through Friday of each week except Federal
holidays.
Dated: September 27, 1996.
Norma V. Cantu,
Assistant Secretary for Civil Rights.
Appendix One--Sexual Harassment Guidance: Harassment of Students by
School Employees
This guidance discusses the analysis that the Office for Civil
Rights (OCR) follows, and that school districts, colleges, and other
recipients of Federal funding (referred to in this guidance as
``schools'') should use, when investigating allegations of sexual
harassment of students in a school's educational program by a school's
employees. [SUP]1 This guidance is based on legal principles detailed in
the endnotes accompanying the document.
This guidance supplements and should be read in conjunction with
OCR's policy guidance: ``Sexual Harassment Guidance: Peer Harassment,''
issued for comment on August 16, 1996 (Peer Harassment Guidance). Many
of the issues discussed in the Peer Harassment Guidance are applicable
to investigations of alleged harassment of students by a school's
employees. Additional issues related to sexual harassment by employees
are discussed below.
Introduction
Under Title IX of the Education Amendments of 1972 (Title IX) and
its implementing regulations, no individual may be discriminated
against on the basis of sex in any education program or activity
receiving Federal financial assistance.[SUP]2 Sexual harassment of
students by a school employee is a form of prohibited sex
discrimination in the following circumstances: [SUP]3
Quid Pro Quo Harassment--A school employee explicitly or
implicitly conditions a student's participation in an education
program or school activity or bases an educational decision on the
student's submission to unwelcome sexual advances, requests for
sexual favors, or other verbal or physical conduct of a sexual
nature.[SUP]4 Quid pro quo harassment is equally unlawful whether
the student resists and suffers the threatened harm or submits and
thus avoids the threatened harm.
Hostile Environment Harassment--Sexually harassing conduct by an
employee (that can include unwelcome sexual advances, requests for
sexual favors, and other verbal or physical conduct of a sexual
nature [SUP]5) is sufficiently severe, persistent, or pervasive to
limit a student's ability to participate in or benefit from an
education program or activity, or to create a hostile or abusive
educational environment.[SUP]6
As discussed in the Peer Harassment Guidance, Title IX's
prohibition of sexual harassment does not extend to 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.[SUP]7 However, gender-based harassment--that is, acts of
verbal or physical aggression, intimidation, or hostility based on sex
but not involving sexual activity or language--is a form of
discrimination prohibited by Title IX. Such incidents, combined with
incidents of sexual harassment, could create a hostile environment,
even if each by itself would not be sufficient.[SUP]8
As noted previously, many of the principles set out in the Peer
Harassment Guidance apply to sexual harassment of students by school
employees. Those principles are not repeated in this document. In
particular, the principles in that Guidance relating to the
applicability of Title IX, notice and grievance procedures, and the
recipient's response to and prevention of sexual harassment all apply
to sexual harassment of students by school employees.
Liability of a School for Sexual Harassment by its Employees
A school's liability for sexual harassment by its employees is
[[Page 52173]]
determined by application of agency principles,[SUP]9 i.e., by
principles governing the delegation of authority to or authorization of
another person to act on one's behalf. Accordingly, a school will
always be liable for even one instance of quid pro quo harassment by a
school employee in a position of authority, such as a teacher or
administrator, whether or not it knew, should have known, or approved
of the harassment at issue.[SUP]10 Under agency principles if a teacher
or other employee uses the authority he or she is given (e.g., to
assign grades) to force a student to submit to sexual demands, the
employee ``stands in the shoes'' of the school and the school will be
responsible for the use of its authority by the employee/agent.[SUP]11
A school will also be liable for hostile environment sexual
harassment by its employees, i.e., for harassment that 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 environment if the employee--(1) Acted with apparent
authority (i.e., because of the school's conduct, the employee
reasonably appears to be acting on behalf of the school, whether or not
the employee acted with authority); [SUP]12 or (2) was aided in
carrying out the sexual harassment of students by his or her position
of authority with the institution.[SUP]13 For example, a school will be
liable if a teacher abuses his or her delegated authority over a
student to create a hostile environment, such as if the teacher
explicitly or implicitly threatens to fail a student unless the student
responds to his or her sexual advances, even though the teacher fails
to carry out the threat.[SUP]14
As this example illustrates, in many cases the line between quid
pro quo and hostile environment discrimination will be blurred, and the
employee's conduct may constitute both types of harassment. However,
what is important is that the school is liable for that conduct under
application of agency principles, regardless of whether it is labeled
as quid pro quo or hostile environment harassment.
Whether other employees, such as a janitor or cafeteria worker, are
in positions of authority--or whether it would be reasonable for the
student to believe they are, even if not (i.e., apparent authority)--
will depend on factors such as the authority actually given to the
employee [SUP]15 (e.g., in some elementary schools, a cafeteria worker
may have authority to impose discipline) and the age of the student
(the younger the student, the more likely it is that he or she will
consider any adult employee to be in a position of authority).
Even in situations not involving (i) quid pro quo harassment, (ii)
creation of a hostile environment through an employee's apparent
authority, or (iii) creation of a hostile environment in which the
employee is aided in carrying out the sexual harassment by his or her
position of authority, a school will be liable for sexual harassment of
its students by its employees if the school has notice of the
harassment (i.e., knew or should have known of the harassment) but
failed to take immediate and appropriate steps to remedy it.[SUP]16
Determining when a school has notice of sexual harassment is discussed
in the Peer Harassment Guidance.[SUP]17
Finally, 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.[SUP]18 If a school fails to do so, it will be liable
under Title IX for the lack of grievance procedures, regardless of
whether sexual harassment occurred. In addition, if OCR determines that
harassment occurred, the school may be in violation of Title IX as to
the harassment, under the agency principles previously discussed,
because a school's failure to implement effective policies and
procedures against discrimination may create apparent authority for
school employees to harass students.[SUP]19
In all cases of alleged harassment by employees investigated by
OCR, OCR will determine whether a school has taken immediate and
appropriate steps reasonably calculated to end any harassment that has
occurred, remedy its effects, and prevent harassment from occurring
again. If the school has done so, OCR will consider the case against
that school resolved and will take no further action. This is true in
cases in which the school was in violation of Title IX,[SUP]20 as well
as those in which there has been no violation of Federal law.[SUP]21
Welcomeness
In order to be actionable as harassment, sexual conduct must be
unwelcome. Issues regarding credibility determinations and whether
conduct is in fact unwelcome, notwithstanding a student's acquiescence
or failure to complain, are discussed in the Peer Harassment Guidance.
Schools should be particularly concerned about this issue when 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; [SUP]22 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 adult employees of elementary and secondary
schools and students in those schools. 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. However, if that
presumption is challenged for older secondary students, and for post-
secondary students, OCR will consider a number of factors in
determining whether sexual advances or other sexual conduct could be
considered welcome:
--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 with an adult school employee. A
student's age or disability would affect his or her ability to do
so.[SUP]23
Severe, Persistent, or Pervasive
Even a single instance of quid pro quo harassment is a violation of
Title IX. In determining whether an employee's sexual harassment of a
student created a hostile environment, i.e., whether it was
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, OCR considers the
factors discussed in the Peer Harassment Guidance.[SUP]24 An additional
factor to consider if a student is harassed by a school employee is the
identity and relationship of the individuals involved. For example, due
to the power that a professor or teacher has over a student, sexually
based conduct by that person toward a student
[[Page 52174]]
may be more likely to create a hostile environment than similar conduct
by another student.[SUP]25
Prompt and Equitable Grievance Procedures
Title IX's requirement that schools adopt and publish grievance
procedures providing for prompt and equitable resolution of complaints
of discrimination on the basis of sex is also applicable to complaints
of harassment of students by a school's employees.[SUP]26 Thus, a
school's grievance procedures must also apply to those complaints.
In addition, because it is possible that an employee designated to
handle Title IX complaints may him or herself engage in harassment, it
may be necessary for the school to designate more than one employee as
responsible for handling these complaints in order to ensure that
students have an effective means of reporting harassment.[SUP]27
As in the case of students accused of harassment, a school's
employees may have certain due process rights.[SUP]28 Procedures that
ensure the Title IX rights of the complainant, while at the same time
according due process rights to the parties involved, will lead to
sound and supportable decisions. The rights established under Title IX
must be interpreted consistently with any applicable federally
guaranteed rights involved in a complaint. Schools should ensure that
steps to accord due process rights do not obstruct or delay the
protections provided by Title IX to the complainant.
Notice of Outcome and FERPA
As discussed in the Peer Harassment Guidance, the Title IX
grievance process should provide for notice of the outcome and
disposition of a complaint if doing so is consistent with a school's
obligations under the Family Educational Rights and Privacy Act (FERPA)
and its regulations.[SUP]29 FERPA generally prohibits a school from
releasing personally identifiable information from a student's
education record without the consent of the student (or his or her
parents, if the student is a minor).[SUP]30 Thus, 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.
First Amendment
Just as with peer harassment, in cases of alleged harassment by
employees, the protections of the First Amendment must be considered if
issues of speech or expression are involved.[SUP]31 Title IX is
intended to protect students from sex discrimination, not to regulate
the content of speech. This is a particularly important consideration
in classroom and related activities by teachers. Thus, in regulating
the conduct of its faculty to prevent or respond to sexual harassment,
a school must formulate, interpret, and apply its rules so as to
protect free speech rights.[SUP]32
Footnotes
1. The term ``employee'' refers to employees and agents of a
school. This includes persons with whom the school contracts to
provide services for the school. See Brown v. Hot, Sexy, and Safer
Productions, Inc., 68 F.3d 525 (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, while the standards contained in the Department's Peer
Harassment Guidance are generally applicable to claims of student-
on-student harassment, schools will be liable for the sexual
harassment of one student by another student under the standards
contained in this Guidance if a student engages in sexual harassment
as an agent or employee of a school.
For instance, a school would be liable under the standards
applicable to quid pro quo harassment if a student teaching
assistant, who has been given authority to assign grades, requires a
student in his or her class to submit to sexual advances in order to
obtain a certain grade in the class. Finally, this Guidance does not
address employee-on-employee sexual harassment, even though that
conduct is prohibited by Title IX. If employees bring sexual
harassment claims under Title IX, case law applicable to sexual
harassment in the work place under Title VII of the Civil Rights Act
of 1964, and Equal Employment Opportunity (EEOC) guidelines will
apply. See 28 CFR 42.604 (Procedures for Complaints of Employment
Discrimination Filed Against Recipients of Federal Financial
Assistance).
2. 20 U.S.C. Sec. 1681, et seq., as amended; 34 CFR 106.31(b).
3. For over a decade, the Department has applied Title IX to
prohibit sexual harassment. As in the Peer Harassment Guidance, the
Department also applies many of the principles developed in the case
law governing sexual harassment in the workplace, under Title VII,
as appropriate to the educational context. Similarly, many of the
principles applicable to racial harassment under Title VI of the
Civil Rights Act of 1964 also apply to sexual harassment under Title
IX. See Department's Notice of Investigative Guidance for Racial
Harassment, 59 FR 11448 (1994).
4. Alexander v. Yale University, 459 F. Supp 1, 4 (D.Conn 1977),
aff'd, 631 F.2d 178 (2nd Cir. 1980) (a claim that academic
advancement was conditioned upon submission to sexual demands
constitutes a claim of sex discrimination in education); Kadiki v.
Virginia Commonwealth University, 892 F. Supp 746, 752 (E.D. Va.
1995) (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); see also Karibian v. Columbia
University, 14 F.3d 773, 777-79 (2nd Cir. 1994) (Title VII case).
5. See Peer Harassment Guidance at n. 5 (describing conduct
found to be of a sexual nature).
6. Doe v. Petaluma City School Dist., 830 F. Supp. 1560, 1571-73
(N.D. Cal. 1993), motion for reconsideration granted (July 22, 1996)
(reaffirming Title IX liability for peer harassment); Moire v.
Temple University School of Medicine, 613 F. Supp. 1360, 1366 (E.D.
Pa. 1985), aff'd mem., 800 F.2d 1136 (3d Cir. 1986); see also
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (Title
VII case).
7. See also Shoreline School Dist., OCR Case No. 10-92-1002 (a
teacher's patting student on 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 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. See Peer Harassment Guidance at notes 9, 41, and 42 and
accompanying text.
9. The Supreme Court has ruled that agency principles apply in
determining an employer's liability under Title VII for the
harassment of its employees by supervisors. See Vinson, 477 U.S. at
72. These principles would govern in Title IX cases involving
employees who are harassed by their supervisors. See 28 CFR 42.604
(regulations providing for handling employment discrimination
complaints by Federal agencies; requiring agencies to apply Title
VII law where applicable). These same principles should govern the
liability of educational institutions under Title IX for the
harassment of students by teachers and other school employees in
positions of authority. See Franklin v. Gwinnett County Public
Schools, 503 U.S. 60, 75 (1992).
10. The Supreme Court in Vinson did not alter the standard
developed in the lower Federal courts whereby an institution is
absolutely liable for quid pro quo sexual harassment whether or not
it knew, should have known, or approved of the harassment at issue.
477 U.S. at 70-71; see also Lipsett v. University of Puerto Rico,
864 F.2d 881, 901 (1st Cir. 1988); EEOC Notice N-915-050, March
1990, Policy Guidance on Current Issues of Sexual Harassment, at p.
21. This standard applies in the school context as well. Kadiki, 892
F. Supp. at 752 (for purposes of quid pro quo harassment of a
student, professor is in similar position as work place supervisor).
11. Kadiki, 892 F. Supp. at 754-755; cf. Martin v. Cavalier
Hotel Corp., 48 F.3d 1343, 1351 n. 3 (4th Cir. 1995) (Title VII
case); Karibian, 14 F.3d at 777-78; Henson v. City of Dundee, 682
F.2d 897, 910 (11th Cir. 1982) (Title VII case).
[[Page 52175]]
12. Restatement (Second) Agency Sec. 219(2)(d); Martin v.
Cavalier Hotel Corp., 48 F.3d at 1352 (finding an employer liable
under Title VII for its General Manager's sexual harassment of an
employee where the Manager used his apparent authority to commit the
harassment; the Manager was delegated the full authority to hire,
fire, promote, and discipline employees and used the authority to
accomplish the harassment; and company policy required employees to
report harassment to the Manager with no other grievance process
made available to them).
13. See Restatement (Second) of Agency Sec. 219(2)(d); EEOC
Policy Guidance on Current Issues of Sexual Harassment at p. 28;
Karibian, 14 F.3d at 780; Hirschfeld v. New Mexico Corrections
Dept., 916 F.2d 572, 579 (10th Cir. 1990) (Title VII case); Martin
v. Cavalier Hotel Corp., 48 F.3d at 1352.
14. Karibian, 14 F.3d at 780 (employer would be liable for
hostile environment harassment where allegations were that a
supervisor coerced employee into a sexual relationship by, among
other things, telling her she ``'owed him' for all he was doing for
her as her supervisor''); Sparks v. Pilot Freight Carriers, Inc.,
830 F.2d 1554, 1558-60) (11th Cir. 1987) (Title VII case holding
employer liable for sexually hostile environment created by
supervisor who repeatedly reminded the harassed employee that he
could fire her if she did not comply with his sexual advances).
15. Cf. Karibian, 14 F.3d at 780.
16. Id.
17. See Peer Harassment Guidance at pp. 6-7.
18. 34 CFR 106.8(b).
19. EEOC Policy Guidance at p. 25 (``* * * in the absence of a
strong, widely disseminated, and consistently enforced employer
policy against sexual harassment, and an effective complaint
procedure, employees could reasonably believe that a harassing
supervisor's actions will be ignored, tolerated, or even condoned by
upper management.'').
20. If OCR finds a violation of Title IX, it will seek to obtain
an agreement with the school to voluntarily correct the violation.
The agreement will set out the specific steps the school will take
and provide for monitoring by OCR to ensure that the school complies
with the agreement.
21. However, schools should note that the Supreme Court has held
that, should a student file a private lawsuit under Title IX,
monetary damages are available as a remedy if there has been a
violation of Title IX. Franklin, 503 U.S. at 76. Of course, a
school's immediate and appropriate remedial actions are relevant in
determining the extent and nature of the damages suffered by a
plaintiff.
22. See Leija v. Cantutillo Independent School Dist., 887 F.
Supp. 947, 954 (N.D. Tex. 1993) (``young children, taught to respect
their teachers and follow their teacher's request, often do not know
what to do when abuse occurs'').
23. Of course, nothing in Title IX would prohibit a school from
implementing policies prohibiting sexual conduct or sexual
relationships between students and adult employees.
24. These factors include the type, frequency, and duration of
the conduct; the number of individuals involved; the age and sex of
the individuals involved; the size of the school, the location of
the incidents, and the context in which they occurred; any other
incidents at the school; and any incidents of gender-based, but non-
sexual harassment. Note that, as with peer harassment, a single
instance of severe harassment may be sufficient to create a hostile
environment. Peer Harassment Guidance at p. 5 and n.35; Racial
Harassment Investigative Guidance at 11449; Brock v. United States,
64 F. 3d 1421, 1423 (9th Cir. 1995) (Title VII case); Simon v.
Morehouse Sch. of Medicine, 908 F. Supp. 959, 969-970 (N.D. Ga.
1995) (Title VII case); Al-Dabbagh v. Greenpeace, Inc., 873 F. Supp.
1105, 1111-12 (N.D. Ill. 1994) (Title VII case); Watts v. N.Y.C.
Police Dept., 724 F. Supp. 99 (S.D.N.Y. 1989) (Title VII case).
25. Patricia H., 830 F. Supp. at 1297 (``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 (5th Cir. 1994), cert. denied,--U.S.--,
115 S.Ct. 70 (1994) (Sec. 1983 case; in finding that a sexual
relationship between a high school teacher and a student was
unlawful, court considered the influence that the teacher had over
the student by virtue of his position of authority).
26. At the elementary and secondary level, this responsibility
generally lies with the school district. At the post-secondary
level, there may be a procedure for a particular campus or college
or for an entire university system. Moreover, 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.
27. See Meritor, 477 U.S. at 72-73.
28. These rights may be derived from the United States
Constitution, State law, collective bargaining agreements, or
institutional regulations and policies, such as faculty handbooks.
29. See 20 U.S.C. Sec. 1232g; 34 CFR Part 99.
30. Id.
31. 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.
32. For an example of the application of First Amendment
principles to alleged sexual harassment by a school employee, see
Silva v. University of New Hampshire, 883 F. Supp. 293 (D.N.H. 1994)
(finding that a university professor was wrongly disciplined when he
was fired for using classroom examples that seemed sexual in nature
to some students, based on an impermissibly subjective sexual
harassment policy). See also 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).
Appendix Two--Sexual Harassment Guidance: Peer Harassment
This guidance discusses the analysis that the Office for Civil
Rights (OCR) follows, and that recipients of Federal funding should
use, when investigating allegations that sexual harassment of a student
or students by another student or group of students (peer harassment)
has created a hostile environment at an educational institutions that
receive Federal financial assistance.[SUP]1 This guidance is based on
existing legal principles, which are detailed in the endnotes
accompanying the document.
Introduction
Under Title IX of the Education Amendments of 1972 (Title IX) and
its implementing regulations, no individual may be discriminated
against on the basis of sex in education programs receiving Federal
financial assistance.[SUP]2 Peer sexual harassment is a form of
prohibited sex discrimination where the harassing conduct creates a
hostile environment.[SUP]3 Thus, unwelcome sexual advances, requests
for sexual favors, and other verbal or physical conduct of a sexual
nature [SUP]4 constitutes sexual harassment when the conduct 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.[SUP]5
OCR finds a school to be in violation of Title IX for peer hostile
environment sexual harassment where a school knows of but fails to
remedy the harassment in its education programs or activities.[SUP]6
Title IX does not make a school responsible for the actions of the
harassing students, but rather for its own discrimination in permitting
the harassment to continue once the school has notice of it. A school
will have notice of a hostile environment when it knew or should have
known of the harassment.[SUP]7 Moreover, schools are required by the
Title IX regulations to have grievance procedures through which
students can complain of alleged sex discrimination by other students,
including sexual harassment.[SUP]8
It is important to recognize that Title IX's prohibition of sexual
harassment does not extend to nonsexual touching
[[Page 52176]]
or other nonsexual conduct.[SUP]9 For example, one student's
demonstration of a sports maneuver requiring contact with another
student will not be considered sexual harassment.[SUP]10
Finally, where the alleged harassment involves issues of speech or
expression, a school's obligations may be affected by application of
First Amendment principles.
These issues are discussed in more detail below.
Applicability of Title IX
Title IX applies to all public and private educational institutions
that receive Federal funds, including elementary and secondary schools,
school districts, proprietary schools, colleges and universities. This
guidance uses the term ``schools'' to refer to all such institutions.
The ``education program'' of a school includes all of the school's
operations.[SUP]11 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.
Title IX protects any ``person'' from sex discrimination;
accordingly both male and female students are protected from sexual
harassment by their peers.[SUP]12 Moreover, Title IX prohibits sexual
harassment regardless of the sex of the harasser, e.g., even where the
harasser and the person being harassed are members of the same
sex.[SUP]13 One example would be a campaign of sexually explicit
graffiti directed at a particular girl by other girls.[SUP]14 Title IX
does not, however, apply to discrimination on the basis of sexual
orientation,[SUP]15 although such conduct may be prohibited by State or
local laws.
Liability of a School for Peer Sexual Harassment
A school will be liable for the conduct of its students that
creates a sexually hostile environment where (i) a hostile environment
exists, (ii) the school knows (``has notice'') of the harassment, and
(iii) the school fails to take immediate and appropriate steps to
remedy it. Under such circumstances, a school's failure to respond to
the existence of a hostile environment within its own programs or
activities permits an atmosphere of sexual discrimination to permeate
the educational program and results in discrimination prohibited by
Title IX.[SUP]16
For the same reason, a school will be liable for sexual harassing
conduct of third parties, who are not themselves students at the school
(e.g., members of a visiting athletic club), where the conduct creates
a sexually hostile environment in the school's programs or activities,
if the school has notice of the harassment but fails to take
appropriate steps to remedy it.[SUP]17 In determining whether the
school took appropriate measures to remedy the sexual harassment in
these cases, OCR will consider the level of control that the school has
over the alleged harasser.[SUP]18
Welcomeness
In order to be actionable as harassment, sexual conduct must be
unwelcome. Conduct is unwelcome when the student being harassed did not
``solicit or incite it'' and ``regarded the conduct as undesirable or
offensive.'' [SUP]19 Mere acquiescence in the conduct or the failure to
complain does not always mean that the conduct was welcome.[SUP]20 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 sexually 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.[SUP]21 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, where a student actively
participates in sexual banter and discussions and gives no indication
that he or she doesn't like it, then the evidence generally will not
support a conclusion that the conduct was unwelcome.[SUP]22
When 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 of welcoming sexual conduct.
If there is a dispute about whether the harassment occurred or
whether it was welcome--in a case where it is appropriate to consider
whether the conduct could be welcome--determinations should be made
based on the totality of the circumstances. While this is not an
exhaustive list, 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 had been found to have harassed
others may support the credibility of the student claiming
harassment; conversely, the student's claim will be weakened if he
or she had been found to have made false allegations against other
individuals.
--Evidence of the allegedly harassed student's reaction or behavior
immediately 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?
--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?
Severe, Persistent, or Pervasive
Peer sexual harassment is created when 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. In deciding
whether conduct is sufficiently severe, persistent or pervasive, the
conduct should be considered from both a subjective [SUP]23 and
objective [SUP]24 perspective. In making this determination, all
relevant circumstances should be considered: [SUP]25
The degree to which the conduct affected one or more students'
education. For a hostile environment to exist, the conduct must have
limited the ability of a student to participate in or benefit from his
or her education, or altered the conditions of the student's
educational environment.[SUP]26
--Many hostile environment cases involve tangible or obvious
injuries.[SUP]27 For example
[[Page 52177]]
a student's grades may go down or the student may be forced to
withdraw from school.[SUP]28 A student may also suffer physical
injuries and mental or emotional distress.[SUP]29
--However, a hostile environment may exist even where there is no
tangible injury to the student.[SUP]30 For example, a student may
have been able to keep up his or her grades and continue to attend
school even though it was more difficult for him or her to do
so.[SUP]31 A student may be able to remain on a sports team, despite
feeling humiliated or angered by harassment that creates a hostile
environment.[SUP]32 Harassing conduct in these examples alters the
student's educational environment on the basis of sex.
--A hostile environment can occur even where the harassment is not
targeted specifically at the individual complainant.[SUP]33 For
example, where a student or group of students regularly directs
sexual comments towards a particular student, a hostile environment
may be created not only for the targeted student, but for others who
witness the conduct.
The type, frequency and duration of the conduct. In most cases, a
hostile environment will exist where there is a pattern or practice of
harassment, or where the harassment is sustained and nontrivial.[SUP]34
For instance, where a young woman is taunted by one or more young men
about her breasts and/or genital area, OCR may find that a hostile
environment has been created, particularly where the conduct has gone
on for some time, takes place throughout the school, or where 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 when the harassment is physical. For instance, where
the conduct is more severe, e.g., attempts to grab a female student's
breasts, genital area, or buttocks, it need not be as persistent or
pervasive in order to create a hostile environment. Indeed, a single or
isolated incident of sexual harassment may, if sufficiently severe,
create a hostile environment.[SUP]35 On the other hand, conduct that is
not severe, persistent or pervasive 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.[SUP]36 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, where it is
clear that the conduct is unwelcome, repeated requests for dates or
attempts to make contact could create a hostile environment.
The number of individuals involved. For example, 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 towards an individual or a
group,[SUP]37 the effect of the conduct towards 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 when directed towards a
group.
The age and sex of the alleged harasser and the subject(s) of the
harassment. For example, in the case of younger students, sexually
harassing conduct may be more intimidating when coming from an older
student.[SUP]38
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 the
students to avoid their harassers.[SUP]39 Harassing conduct in a
personal or secluded area such as a dormitory room or residence hall
can also 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 instances at the school,
not involving the same students, could--taken together--create a
hostile environment, even if each by itself would not be
sufficient.[SUP]40
Incidents of gender-based, but non-sexual harassment. Acts of
verbal or physical aggression, intimidation, or hostility based on sex,
but not involving sexual activity or language, is a form of
discrimination and is unlawful if it is ``sufficiently patterned or
pervasive'' and directed at individuals because of their sex.[SUP]41
Such incidents, combined with incidents of sexual harassment, could
create a hostile environment, even if each by itself would not be
sufficient.[SUP]42
Notice and Grievance Procedures
A school will be in violation of Title IX for peer sexual
harassment occurring in its programs or activities if the school ``has
notice'' of a sexually hostile environment and fails to take immediate
and appropriate corrective action. A school will have notice when it
actually ``knew, or in the exercise of reasonable care, should have
known'' about the harassment. In addition, so long as an agent or
responsible employee of the recipient received notice, that notice will
be imputed to the recipient.
A recipient can receive notice in many different ways. Because
schools are required to have Title IX grievance procedures, a student
may have filed a grievance or complained to a teacher about fellow
students sexually 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, an affirmative action
officer, or staff in the office of student affairs. An agent or
responsible employee of the institution may have witnessed the
harassment. The recipient may receive notice 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 recipient also may
have received notice from flyers about the incident(s) posted around
the school.[SUP]43
Constructive notice exists when the school ``should have'' known
about the harassment--when the school would have found out about the
harassment through a ``reasonably diligent inquiry.'' [SUP]44 For
example, where a school knows of some incidents of harassment, there
may be situations where it will be charged with notice of others--where
the known incidents should have triggered an investigation that would
have led to a discovery of the additional incidents. In other cases,
the pervasiveness of the harassment may be enough to conclude that the
school should have known of the hostile environment--where the
harassment is widespread, openly practiced, or well-known to students
and staff (such as sexual harassment occurring in hallways, graffiti in
public areas, or harassment occurring during recess under a teacher's
supervision).[SUP]45
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.[SUP]46 These procedures provide a school with a
mechanism for
[[Page 52178]]
discovering sexual harassment as early as possible and for effectively
correcting problems, as required by Title IX. By having accessible,
effective, and fairly applied grievance procedures (see discussion
below), a school is telling its students that it does not tolerate
sexual harassment and that students can report it without fear of
adverse consequences.
Accordingly, where a school has failed to provide this mechanism
for notice of and resolving complaints, it will be liable under Title
IX for the lack of grievance procedures, regardless of whether sexual
harassment occurred.[SUP]47 Moreover, in the absence of effective
grievance procedures, if OCR determines that the alleged harassment was
sufficiently severe, persistent or pervasive to create a hostile
environment, a school will be in violation of Title IX as to the
existence of a hostile environment, even if the school was not aware of
the harassment and thus failed to remedy it.[SUP]48
In addition, where a school otherwise has actual or constructive
notice of a hostile environment (as discussed above), and fails to
remedy the harassment, then OCR will find a violation even if the
student fails to use the school's existing grievance procedures.
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, as discussed in
more detail below, Title IX grievance procedures must provide an
effective means for responding to alleged sex discrimination at the
school. Thus, where, because of the lack of a policy or procedures
specifically addressing sexual harassment, students are unaware of what
constitutes sexual harassment, or that such conduct is prohibited sex
discrimination, OCR will not consider the school's general policy and
procedures relating to sex discrimination complaints to be
effective.[SUP]49
Recipient's Response
What constitutes a reasonable response to information about
possible sexual harassment will differ. Where a student, parent, or
other individual has filed a complaint or otherwise reported incidents
of harassment, the school must investigate and determine appropriate
steps to resolve the situation.[SUP]50 Where information about possible
harassment is less direct, the school's response to the information may
vary depending upon factors such as: the source and nature of the
information; the seriousness of the alleged harassment; whether any
individuals can be identified who were subjected to the harassment, and
their age; whether those individuals want to pursue the matter; whether
there have been other complaints or reports of harassment by the
alleged harasser; the specificity of the information; and the
objectivity and credibility of the source of the report. It may be
appropriate for a school to take interim measures. For instance, where
a student alleges that she has been sexually assaulted by another
student, it may be appropriate for the school to immediately separate
the two students pending the results of the school's investigation.
Where a school determines that sexual harassment has occurred, it
should take reasonable, timely and effective corrective action,
including steps tailored to the specific situation.[SUP]51 As discussed
above, where the harasser is not a student of the recipient, OCR will
consider the level of control the school has over the harasser in
determining what response would be appropriate.
First, appropriate steps should be taken to end the harassment. For
example, a school may need to counsel, warn or even take disciplinary
action against the harasser, based on the severity of the harassment
and/or any record of prior incidents.[SUP]52 In some cases, it may be
appropriate to separate the harassed student and the harasser, e.g., by
changing housing arrangements [SUP]53 or directing the student harasser
to have no further contact with the harassed student. It may also be
appropriate to direct the harasser to apologize to the harassed
student. Counseling for the harasser may be appropriate, as to what
constitutes harassment and the effects it can have.
In addition, corrective action should address the effects on those
who have been subject to harassment. For example, if a student was
forced to withdraw from a class because of harassment from fellow
students, he or she should be given the opportunity to take the class
again. In some instances, a school may be required to provide or
reimburse the student for professional counseling or other services
necessary to address the effects of the harassment on the person
subjected to it.[SUP]54
Finally, a school should take steps to prevent any further
harassment.[SUP]55 At a minimum, this includes making sure that the
harassed students and their parents know how to report any further
problems and making follow-up inquiries to see if there have been any
further incidents or any retaliation. In addition, depending on how
widespread the harassment was and whether there had been any prior
incidents, the school may need to provide training for the larger
educational community to prevent any future incidents and ensure that
students, parents, and teachers can recognize any that do occur and
know how to respond.[SUP]56 A school must always ensure that there is
no retaliation against a student for raising a sexual harassment
complaint.
Where a student reporting harassment asks that his or her name not
be disclosed, or even that nothing be done about the alleged
harassment, the school should try to determine whether the student is
afraid of reprisals from the alleged harasser, and inform the student
that Title IX prohibits this sort of retaliation and that the school
will take strong responsive steps if it occurs. The school must then
takes steps to ensure that no retaliation occurs.
Should the student continue to ask for confidentiality, the school
should take all possible steps to investigate and respond to the
complaint consistent with that request. While confidentiality may limit
the school's ability to fully respond to the complaint--for example,
the school may not be able to find out the alleged harasser's version
of events without at least indirectly revealing the complainant's
name--the school may still be able to take steps to address the
harassment. For example, the school may be able to counsel the student
or provide general training about sexual harassment to the school or
portion of the school where the problem was raised. 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.
Prevention
Adopting and publicizing a policy specifically prohibiting sexual
harassment and having separate grievance procedures available 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 severe, persistent or pervasive to
create a hostile environment. Further, a school can provide training to
administrators, teachers, and staff, and age-appropriate classroom
information to students, to ensure that they understand what types
[[Page 52179]]
of conduct can cause sexual harassment and that they know how to
respond.
Prompt and Equitable Grievance Procedures
Schools are required to adopt and publish grievance procedures
providing for prompt and equitable resolution of complaints of
discrimination on the basis of sex.[SUP]57 In the context of peer
harassment, OCR has examined a number of elements in determining
whether a school's grievance procedures are prompt and equitable,
including whether the procedures provide for:
(1) Notice of the procedure to students, parents, and employees;
(2) Application of the procedure to complaints alleging harassment
by students;
(3) Adequate and reliable investigation of complaints by an
impartial investigator, including the opportunity to present witnesses
and other evidence;
(4) Designated time frames for the major stages of the complaint
process;
(5) Notice to the parties of the disposition of the complaint;
(6) Steps to prevent recurrence of any harassment and to correct
its effects on the complainant and others.
In addition, many schools also provide an opportunity to appeal the
findings and/or remedy. Procedures adopted by schools will vary
considerably in specificity and components, reflecting different
audiences, sizes, administrative structures, state or local legal
requirements, and past experience. In addition, whether procedures are
timely will vary depending on the complexity and severity of the
harassment.
A grievance procedure applicable to peer 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 putting them in the school's
administrative or policy manual, may not 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 process in all major publications issued by the school
(handbooks or catalogs for students, parents, faculty, staff); and
identifying individuals who can explain how the procedure works.
A college or school district must designate at least one employee
to coordinate its efforts to comply with and carry out its Title IX
responsibilities.[SUP]58 The school must notify all of its students and
employees of the name, office address and telephone number of the
employee(s) designated.[SUP]59 While a school may choose to have a
number of employees responsible for Title IX matters, it is advisable
to give one official responsibility for overall coordination and
oversight of all sexual harassment complaints to ensure consistent
practices and standards in the handling of all complaints. Coordination
in terms of recordkeeping is also essential to ensure that the school
can and will identify and resolve recurring problems and the problem of
repeat offenders.[SUP]60 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.[SUP]61
Grievance procedures may include informal mechanisms for resolving
sexual harassment complaints, to be used where the parties agree to do
so.[SUP]62 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 student 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, where 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 resolution process. 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
complaint 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 they
use different standards they may not be dispositive under Title IX, and
do not relieve the school of its duty to respond promptly.[SUP]63
Similarly, schools are cautioned about using the results of insurance
company investigations of sexual harassment allegations. The purpose of
an insurance investigation is to determine liability under the
insurance policy, and the applicable standards (the insurance contract
and applicable state or Federal insurance law) 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.[SUP]64
Finally, the United States Constitution guarantees due process to
public school students accused of infractions such as sexual
harassment. Similarly, state laws may provide additional rights to
students, even at private schools. Schools should be aware of these
rights and their legal responsibilities to those students accused of
harassment. Indeed, procedures that ensure the Title IX rights of the
complainant while at the same time according due process to the
individual accused of harassment will lead to sound and supportable
decisions. The rights established under Title IX must be interpreted
consistently with any federally guaranteed rights involved in a
complaint. Recipients should ensure that steps to accord due process
rights to the accused do not obstruct or delay the protections provided
by Title IX to the complainant.
Notice of Outcome and FERPA
The Title IX grievance process should provide for notice of the
outcome and disposition of a complaint [SUP]65 where doing so is
consistent with a school's obligations under the Family Educational
Rights and Privacy Act (FERPA) and its regulations.[SUP]66 The parties
to a complaint need information such as whether or not sexual
harassment was found to have occurred and, if so, the steps that the
school has taken or will take to correct the discrimination in order to
know if the complaint has been resolved equitably.
When determining what information will be provided to and about
students, however, a school must consider the requirements of FERPA.
FERPA generally prohibits a school from releasing personally
identifiable information from a student's education record without the
consent of the student (or his or her parents, if the student is a
minor).[SUP]67 Thus, FERPA's requirements may prevent a school from
informing a complainant of any sanction or discipline imposed on a
student found guilty of harassment, where that information is contained
in the student's education record.[SUP]68
FERPA provides that the complainant may learn of actions taken
against
[[Page 52180]]
another student in certain limited circumstances. Under FERPA, a
student has the right to inspect and review any personally identifiable
information contained in the education record of another student if
that information is directly related to the first student.[SUP]69 For
example, in the case of a disciplinary record or order requiring the
student harasser not to have contact with the complainant, the
complainant would be entitled to review that portion of the record that
contains this information; thus, it would not be a violation of FERPA
for the school to tell the complainant of the order. Also, where the
harassment involves a crime of violence or a sexual assault,
postsecondary schools are permitted and may even be required to
disclose the results to the complainant.[SUP]70
FERPA is enforced by the Department through its Family Policy
Compliance Office, U.S. Department of Education, Washington, D.C.
20202.
First Amendment
In cases of alleged harassment, the protections of the First
Amendment must be considered where issues of speech or expression are
involved. Free speech rights apply in the classroom (e.g., classroom
lectures and discussions) [SUP]71 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 [SUP]72;
and student newspapers, journals and other publications [SUP]73).
Title IX is intended to protect students from sex discrimination,
not to regulate the content of speech. OCR recognizes that the
offensiveness of particular expression as perceived by some students,
standing alone, is not a legally sufficient basis to establish a
sexually hostile environment under Title IX.[SUP]74 In order to
establish a violation of Title IX, the harassment must be 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.[SUP]75
Moreover, in regulating the conduct of its students to prevent or
redress discrimination prohibited by Title IX (e.g., in responding to
peer harassment that is sufficiently severe as to create a hostile
environment), a school must formulate, interpret and apply its rules so
as to protect 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 viewed as derogatory, the
school can take steps to denounce such opinions and ensure that
competing views are heard. It can also take other measures to prevent
and eliminate a sexually hostile environment, such as instituting
restrictions related to disorderly or disruptive conduct. Moreover, the
age of the students involved and the location or forum may affect how
the school can respond consistent with the First Amendment.[SUP]76
Footnotes
1. This guidance is limited to peer sexual harassment that
creates a hostile environment. Where a student engages in sexual
harassment as an agent or employee of an educational institution,
for instance where a student teaching assistant requires a student
in his or her class to submit to his or her sexual advances in order
to obtain a certain grade in the course, this conduct also would
violate Title IX; however, these types of situations are not
addressed in this guidance.
2. 20 U.S.C. Sec. 1681 et seq. See also 34 C.F.R.
Sec. 106.31(b). In analyzing sexual harassment claims, the
Department also applies, as appropriate to the educational context,
many of the legal principles applicable to sexual harassment in the
work place, developed under Title VII of the Civil Rights Act of
1964, 42 U.S.C. Sec. 2000e-2(a). See Franklin v. Gwinnett County
Public Schools, 503 U.S. 60, 75 (1992) (applying Title VII
principles in determining that a student was entitled to protection
from sexual harassment by a teacher in school under Title IX);
Murray v. New York University College of Dentistry, 57 F.3d 243, 249
(2d Cir. 1995) (same); Doe v. Petaluma City School Dist., 830 F.
Supp. 1560, 1571-72 (N.D. Cal. 1993) (same), rev'd in part on other
grounds, 54 F.3d 1447 (9th Cir. 1995).
In addition, many of the principles applicable to racial
harassment under Title VI of the Civil Rights Act, 42 U.S.C.
Sec. 2000d et seq., and Title VII also apply to sexual harassment
under Title IX. Indeed, Title IX was modeled on Title VI, Cannon v.
University of Chicago, 441 U.S. 677, 694 (1979). For information on
racial harassment, see the Department's Notice of Investigative
Guidance for Racial Harassment, 59 Fed. Reg. 11,448 (1994).
3. Consistent with Supreme Court decisions, see Franklin, 503
U.S. at 75 (expressly ruling that the sexual harassment of a student
by a teacher violates Title IX), the Department has interpreted
Title IX as prohibiting sexual harassment for over a decade.
Moreover, it has been OCR's longstanding practice to apply Title IX
to peer harassment. See also Bosley v. Kearney R-1 School Dist., 904
F. Supp. 1006, 1023 (W.D. Mo. 1995); Doe v. Petaluma, 830 F. Supp at
1575-76, motion for reconsideration granted (July 22, 1996)
(reaffirming Title IX liability for peer harassment where the school
knows of the hostile environment but fails to take remedial action;
applying Title VII standard, i.e., no additional, separate intent
requirement); Burrow v. Postville Community School District, No.
C94-1031, 1996 U.S. Dist LEXIS 9147 at *34 (N.D. Iowa June 17, 1996)
(student may bring Title IX cause of action against a school for its
knowing failure to take appropriate remedial action in response to
the hostile environment created by students at the school); Oona R.-
S. v. Santa Rosa City Schools, 890 F. Supp. 1452 (N.D. Cal. 1995);
Davis v. Monroe County Bd. of Education, 74 F.3d 1186, 1193 (11th
Cir. 1996) (as Title VII is violated where a sexually hostile
working environment is created by co-workers and tolerated by the
employer, Title IX is violated where a sexually hostile educational
environment is created by a fellow student or students and the
supervising authorities knowingly failed to act to eliminate the
harassment), vacated, reh'g granted; cf. Murray v. New York
University, 57 F.3d at 249 (while court finds no notice to school,
assumes a Title IX cause of action for sexual harassment of a
medical student by a patient visiting school clinic).
One Federal court decision, Rowinsky v. Bryan Independent School
District, 80 F.3d 1006 (5th Cir. 1996), petition for cert. filed
(July 1, 1996), has held to the contrary. In that case, over a
strongly worded dissent, the court rejected the authority of other
Federal courts and OCR's longstanding construction of Title IX, and
held that a school district is not liable under Title IX for peer
harassment unless ``the school district itself directly
discriminated based on sex,'' i.e., the school responded differently
to sexual harassment claims of girls versus boys.
The Rowinsky decision misunderstands a school's liability under
Title IX. Title IX does not make a school responsible for the
actions of the harassing student, but rather for its own
discrimination in failing to act and permitting the harassment to
continue once a school official knows that it is happening. When a
student is sexually harassed by a fellow student, and a school
official knows about it but does not stop it, the school is
permitting an atmosphere of sexual discrimination to permeate the
educational program. The school is liable for its own action, or
lack of action, in response to this discrimination. Title VII cases
making employers responsible for remedying hostile environment
harassment of one worker by a coworker apply this same standard.
See, e.g., Ellison v. Brady, 924 F.2d at 881-82; Hall v. Gus
Construction Co., 842 F.2d 1010 (8th Cir. 1988); Hunter v. Allis-
Chalmers Corp., 797 F.2d 1417 (7th Cir. 1986); Snell v. Suffolk, 782
F.2d 1094 (2nd Cir. 1986); Robinson v. Jacksonville Shipyards, 760
F. Supp. 1486 (M.D. Fla. 1991).
The petition for certiorari in the Rowinsky case (July 1, 1996)
will likely be ruled on this fall.
See e.g., 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);
Harris v. Forklift Systems, Inc., 510 U.S. ____, 114 S.Ct. 367
(1993) (sexually derogatory comments and innuendo may support a
sexual harassment claim under Title VII); Ellison v. Brady, 924 F.2d
872, 873-74, 880 (9th Cir. 1991) (allegations sufficient to state
[[Page 52181]]
a 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, 903-4 (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 a university student may
constitute sexual conduct under Title IX); Doe v. Petaluma, 830 F.
Supp. at 1564-65 (sexually derogatory taunts and innuendo can be the
basis of a harassment claim); Denver School Dist. #1, OCR Case No.
08-92-1007 (same as 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).
Davis v. Monroe County, 74 F.3d at 1194, vacated, reh'g granted;
Doe v. Petaluma City School Dist., 830 F. Supp. at 1571-73; Moire v.
Temple University School of Medicine, 613 F. Supp. 1360, 1366 (E.D.
Pa. 1985), aff'd mem., 800 F.2d 1136 (3d Cir. 1986); see also
Vinson, 477 U.S. at 67; Lipsett, 864 F.2d at 901.
Davis v. Monroe County, 74 F.3d at 1193-94, vacated, reh'g
granted; Racial Harassment Guidance, 59 Fed. Reg. at 11,449-50.
As explained in Rosa H. v. San Elizario Ind. School Dist., 887
F. Supp. 140, 143 (W.D. Tex. 1995):
[T]he school district is in the best position to be on the lookout
for discriminatory conduct * * * A ``knew or should have known''
requirement mandates that the school district monitor its employees
and students and prevents a situation where the district, through
its employees or policies, turns a blind eye toward discriminatory
conduct.
8. 34 CFR Sec. 106.8(b).
9. However, gender-based peer harassment--that is acts of verbal
or physical aggression, intimidation, or hostility based on sex but
not involving sexual activity or language--is a form of
discrimination (just as in the case of harassment based on race or
national origin). Hicks v. Gates Rubber Co., 833 F.2d 1406, 1416
(10th Cir. 1987) (Title VII case); McKinney v. Dole, 765 F.2d 1129,
1138 (D.C. Cir. 1985) (Title VII case; assault could be sex-based
harassment if shown to be unequal treatment that would not have
taken place but for the employee's sex).
10. Cf. Dartmouth Public Schools, OCR Case No. 01-90-1058
(contact between high school coach and students not conduct of a
sexual nature); 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); San Francisco State
University, OCR Case No. 09-94-2038 (same as to faculty advisor
placing her arm around graduate student's shoulder in posing for a
picture).
11. 20 U.S.C. Sec. 1687 (codification of the Title IX part of
the Civil Rights Restoration Act of 1987); Leija v. Cantutillo Ind.
School Dist., 887 F. Supp. 947, 957 (W.D. Tex. 1995).
12. Cf. John Does 1 v. Covington County School Bd., 884 F. Supp.
462, 464-65 (M.D. Ala. 1995) (male students alleging that teacher
sexually harassed and abused them stated cause of action under Title
IX).
13. Title IX and the regulations implementing it prohibit
discrimination ``on the basis of sex;'' they do not restrict sexual
harassment to those circumstances in which the harasser only
harasses members of the opposite sex. See 34 C.F.R. Sec. 106.31. In
order for hostile environment harassment to be actionable under
Title IX, it must create a hostile or abusive environment. This can
occur when a student harasses a member of the same sex. See Doe v.
Petaluma, 830 F. Supp. at 1564-65, 1575 (female junior high school
student alleging sexual harassment by other students, including both
boys and girls, sufficient to raise claim under Title IX). Cf John
Does 1, 884 F. Supp. at 465 (same as to male students' allegations
of sexual harassment and abuse by male teacher). It can also occur
in certain situations when the harassment is directed at students of
both sexes. Chiapuzo v. BLT Operating Co., 826 F. Supp. 1334 (D.
Wyo. 1993) (court found that such harassment could 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., where a
female student is repeatedly propositioned by a male student (or,
for that matter, where a male student is repeatedly propositioned by
a male student). In other circumstances, harassing conduct will be
on the basis of sex where 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 and/or affected the
nature of the harasser's conduct. 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 gender-driven in
that they were made with an intent to demean each member of the
couple because of his or her respective sex. See also Steiner v.
Showboat Operating Co., 25 F.3d 1458, 1463-64 (9th Cir. 1994) (Title
VII case).
14. Nashoba Regional High School, OCR Case No. 01-92-1397. In
Conejo Valley School Dist., OCR Case No. 09-93-1305 (5/27/94),
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.
15. Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69 (8th
Cir. 1989), (Title VII case) cert. denied 493 U.S. 1089 (1994);
DeSantis v. Pacific Tel. & Tel. Co., Inc., 608 F.2d 327 (9th Cir.
1979) (same); Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979)
(same).
16. See note 3.
17. As with peer harassment by its own students, a school's
liability for the harassment of its students by others is based on
its obligation to provide an environment free of discrimination.
Racial Harassment Investigative Guidance, 59 Fed. Reg. at 11,450
(referring to harassment by neighborhood teenagers, guest speaker,
and parents); Murray, 57 F.3d at 250 (student participating in
university dental clinic providing services to the public alleged
harassment by a patient; while court ruled in defendant's favor
because of lack of notice, it considered such a claim actionable
under Title IX).
18. For example, where athletes from a visiting team harass the
home school's students, the home school may not be able to
discipline the students. However, it could encourage the athletes'
school to take appropriate action to prevent further incidents; if
necessary, the home school may choose not to invite the athletes'
school back. Cf. Danna v. New York Telephone Co, 752 F. Supp. 594,
611 (S.D.N.Y. 1990) (telephone company in violation of Title VII for
not taking sufficient action to protect its own employee from
sexually explicit graffiti at airport where she was assigned to
work, e.g., contacting airport management to see what remedial
measures could be taken).
19. Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982)
(Title VII case).
20. [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.
Vinson, 477 U.S. at 68.
21. 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, 752 F. Supp. at 612 (despite 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 (7th
Cir. 1994) (Title VII case; cursing and dirty jokes by 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.'').
22. Reed v. Shepard, 939 F.2d 484, 486-87, 491-92 (7th Cir.
1991) (no harassment
[[Page 52182]]
found under Title VII where female employees not only tolerated, but
also participated and instigated the suggestive joking activities
about which she was now complaining); Weinsheimer v. Rockwell Int'l
Corp., 754 F. Supp. 1559, 1563-64 (D. Fl. 1990) (same, where general
shop banter was full of vulgarity and sexual innuendo by men and
women alike, and plaintiff contributed her share to this
atmosphere).
23. Davis v. Monroe County, 74 F.3d at 1126 (when interpreting
the requirement in Harris that the harassment must unreasonably
interfere with the plaintiff's performance, 114 S.Ct. at 371, the
court stated: ``* * * if the plaintiff does not subjectively
perceive the environment to be abusive, then the conduct has not
actually altered the conditions of her learning environment, and
there is no Title IX violation''), vacated, reh'g granted.
24. The Supreme Court used a ``reasonable person'' standard in
Harris, 114 S.Ct. at 370-71 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 v. Brady, 924 F.2d at 878-79 (applying a
``reasonable women'' standard to sexual harassment), and has been
adapted to sexual harassment in education, Davis v. Monroe County,
74 F.3d at 1126 (relying on Harris to adopt an objective, reasonable
person standard), vacated, reh'g granted; 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); Racial Harassment Guidance, 59 Fed. Reg. at 11,452 (the
standard must take into account the characteristics and
circumstances of victims on a case-by-case basis, particularly the
victim's race and age).
25. Harris, 114 S.Ct. at 371; Racial Harassment Guidance, 59
Fed. Reg. at 11449 and 11452.
26. Davis v. Monroe County, 74 F.3d at 1126 (no Title IX
violation unless the conduct has ``actually altered the conditions
of [the student's] learning environment''), vacated, reh'g granted;
Lipsett, 864 F.2d at 898 (``altered'' the educational environment);
Patricia H., 830 F. Supp. at 1297 (sexual harassment could be found
where conduct interfered with student's ability to learn); see also
Andrews, 895 F.2d at 1482 (Title VII case).
27. Harris, 114 S.Ct. at 371.
28. See e.g., 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
services, so no hostile environment).
29. Doe v. Petaluma, 830 F. Supp. at 1566.
30. See Harris, 114 S.Ct. at 371, where the Court held that
tangible harm is not required. In determining whether harm is
sufficient, several factors are to be considered, including
frequency, severity, whether the conduct was threatening or
humiliating versus a mere offensive utterance, and whether it
unreasonably interfered with work performance. No single factor is
required; similarly, psychological harm, while relevant, is not
required.
31. See Modesto City Schools, OCR Case No. 09-93-1391 (evidence
showed that several girls were afraid to go to school because of the
harassment).
32. Summerfield Schools, OCR Case No. 15-92-1029.
33. See Waltman v. Int'l Paper Co., 875 F.2d 468, 477 (5th Cir.
1989) (Title VII case); see also Hall v. Gus Construction Co., 842
F.2d at 1015 (evidence of sexual harassment directed at others is
relevant to show hostile environment under Title VII); Racial
Harassment Investigative Guidance, 59 Fed. Reg. at 11,453.
34. See, e.g., 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) (Title VII case); Downes v. Federal Aviation
Administration, 775 F.2d 288, 293 (D.C. Cir. 1985) (same); cf. Scott
v. Sears, Roebuck and Co., 798 F.2d 210, 214 (7th Cir. 1986) (Title
VII case; conduct was not pervasive or debilitating).
35. The U.S. Equal Employment Opportunity Commission (EEOC) has
stated: ``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, p. 17.
See also Barrett v. Omaha National Bank, 584 F. Supp. 22, 30 (D.
Neb. 1983), aff'd, 726 F.2d 424 (8th Cir. 1984) (hostile environment
created under Title VII by isolated events, i.e., occurring while
traveling to and during a two day conference, including the
coworker's talking to plaintiff about sexual activities and touching
her in offensive manner while they were inside a vehicle from which
she could not escape).
36. 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).
37. See, e.g., McKinney, 765 F.2d at 1138-40; Robinson v.
Jacksonville Shipyard, 760 F. Supp. at 1522.
38. Cf. Patricia H., 830 F. Supp. at 1297.
39. See also Barrett v. Omaha National Bank, 584 F. Supp. at 24
(harassment occurring in a car from which the plaintiff could not
escape was deemed particularly severe).
40. 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). See also Hall v. Gus Construction Co. 842 F.2d at
1015 (incidents of sexual harassment directed at other employees);
Hicks v. Gates Rubber, 833 F.2d at 1415-16 (same).
41. See Vinson, 477 U.S. at 65-66; Harris, 114 S. Ct. at 370-
371; see also Hicks v. Gates Rubber Co., 833 F.2d 1406, 1416 (10th
Cir. 1987) (Title VII case).
42. See Harris, 114 S. Ct. at 370-71; Andrews v. City of
Philadelphia, 895 F.2d 1469, 1485-86 (3rd Cir. 1990) (Title VII
case; 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
1094, 1014 (8th Cir. 1988) (Title VII case); 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). 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 v. Gates Rubber Co., 833 F.2d at
1416; Jefferies v. Harris Community Action Ass'n, 615 F.2d 1025,
1032 (5th Cir. 1980) (Title VII case).
43 Racial Harassment Guidance, 59 Fed. Reg. at 11450 (discussing
how a school may receive notice).
44. See Yates v. Avco Corp., 819 F.2d 630, 634-36 (6th Cir.
1987) (Title VII case); Katz v. Dole, 709 F.2d 251, 256 (4th Cir.
1983) (same); See also Racial Harassment Investigative Guidance, 59
Fed. Reg. at 11,450.
45. Cf. Katz v. Dole, 709 F.2d at 256 (the employer ``should
have been aware of the * * * problem both because of its pervasive
character and because of Katz' 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) (Title Vii case;
``[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, 57 F.3d at 250-51 (that other students
knew of the conduct was not enough to charge the school with notice,
particularly where these
[[Page 52183]]
students may not have been aware that the conduct was offensive or
abusive).
46. See 34 C.F.R. Sec. 106.8(b). Moreover, schools have an
obligation to ensure that the educational environment is free of
harassment, and cannot fulfill this obligation without determining
whether sexual harassment complaints have merit.
47. Fenton Community High School Dist. #100, OCR Case No. 05-92-
1104.
48. See Racial Harassment Investigative Guidance, 59 Fed. Reg.
at 11,450.
49. See Vinson, 477 U.S. at 72-73.
50. Schools have an obligation to ensure that the educational
environment is free of harassment, and cannot fulfill this
obligation without determining where sexual harassment complaints
have merit. Moreover, failure to respond to a complaint does not
meet the ``prompt and equitable'' requirements for grievance
procedures under Title IX.
51. Cf. 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
(5th Cir. 1986) (employer should take prompt remedial action under
Title VII). Racial Harassment Investigative Guidance, 59 Fed. Reg.
at 11,450.
52. Waltman v. Int'l Paper Co., 875 F.2d at 479 (appropriateness
of employer's 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) (Title VII case; employer
arranged for victim to no longer work with alleged harasser).
53. 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).
54. Leija, 878 F. Supp. at 957 (medical and mental health
treatment and any special education needed as a result of the
harassment); 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).
55. 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. Fuller v. City of Oakland, 47 F.3d
1522, 1528-29 (9th Cir. 1995).
56. 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, 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, in-service training for
non-management personnel).
57. 34 C.F.R Sec. 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.
58. 34 C.F.R. Sec. 106.8(a).
59. Id.
60. University of California, Santa Cruz, OCR Case No. 09-93-
2141; Sonoma State University, 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 individual file.
61. 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.
62. 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, where 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.
63. Academy School Dist. No. 20, OCR Case No. 08-93-1023
(school's response determined to be insufficient where 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).
64. Cf. EEOC v. Board of Governors of State Colleges and
Universities, 957 F.2d 424 (7th Cir.) (Title VII case), cert.
denied, 113 S.Ct. 299 (1992); Johnson v. Palma, 931 F.2d 203 (2nd
Cir. 1991) (same).
65. University of California, Santa Cruz, OCR Case No. 09-93-
2141; Cerro Cosa Community College, OCR Case No. 09-92-2120.
66. See 20 U.S.C. Sec. 1232g; 34 C.F.R. Part 99.
67. Id.
68. Under FERPA, education records are defined as records,
documents, or other materials maintained by a school that contain
information directly related to a student. 20 U.S.C.
Sec. 1232(g)(4).
69. 20 U.S.C. Sec. 1232g(a)(1)(A); 34 C.F.R. Sec. 99.12(a).
70. Colleges and other postsecondary schools are required to
disclose the outcome in cases involving sexual assault, 20 U.S.C.
Sec. 1092(f). In addition, information about ``crimes of violence''
can be disclosed to the complainant consistent with FERPA, 20 U.S.C.
Sec. 1232(g)(b)(6).
71. 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 a historical novel
aloud in class constituted an academic decision on presentation of
curriculum, not racial harassment).
72. 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).
73. See Florida Agricultural and Mechanical University, OCR Case
No. 04-92-2054 (no discrimination where campus newspaper, which
welcomed individual opinions of all sorts, printed article
expressing one student's viewpoint on white students on campus).
74. 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).
75. Cf. Vinson, 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.
76. 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 and classrooms 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).
[FR Doc. 96-25283 Filed 10-3-96; 8:45 am]
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