Office for Civil Rights Sexual Harassment Guidance: Harassment of Students by School Employees

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 __K[email protected]

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.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.2 Sexual harassment of

students by a school employee is a form of prohibited sex

discrimination in the following circumstances: 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.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 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.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.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.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,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.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.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); 12 or (2) was aided in

carrying out the sexual harassment of students by his or her position

of authority with the institution.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.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 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.16

Determining when a school has notice of sexual harassment is discussed

in the Peer Harassment Guidance.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.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.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,20 as well

as those in which there has been no violation of Federal law.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; 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.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.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.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.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.27

As in the case of students accused of harassment, a school's

employees may have certain due process rights.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.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).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.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.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.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.2 Peer sexual harassment is a form of

prohibited sex discrimination where the harassing conduct creates a

hostile environment.3 Thus, unwelcome sexual advances, requests

for sexual favors, and other verbal or physical conduct of a sexual

nature 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.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.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.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.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.9 For example, one student's

demonstration of a sports maneuver requiring contact with another

student will not be considered sexual harassment.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.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.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.13 One example would be a campaign of sexually explicit

graffiti directed at a particular girl by other girls.14 Title IX

does not, however, apply to discrimination on the basis of sexual

orientation,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.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.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.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.'' 19 Mere acquiescence in the conduct or the failure to

complain does not always mean that the conduct was welcome.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.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.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 23 and

objective 24 perspective. In making this determination, all

relevant circumstances should be considered: 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.26

--Many hostile environment cases involve tangible or obvious

injuries.27 For example

[[Page 52177]]

a student's grades may go down or the student may be forced to

withdraw from school.28 A student may also suffer physical

injuries and mental or emotional distress.29

--However, a hostile environment may exist even where there is no

tangible injury to the student.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.31 A student may be able to remain on a sports team, despite

feeling humiliated or angered by harassment that creates a hostile

environment.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.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.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.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.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,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.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.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.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.41

Such incidents, combined with incidents of sexual harassment, could

create a hostile environment, even if each by itself would not be

sufficient.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.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.'' 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).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.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.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.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.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.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.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.52 In some cases, it may be

appropriate to separate the harassed student and the harasser, e.g., by

changing housing arrangements 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.54

Finally, a school should take steps to prevent any further

harassment.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.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.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.58 The school must notify all of its students and

employees of the name, office address and telephone number of the

employee(s) designated.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.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.61

Grievance procedures may include informal mechanisms for resolving

sexual harassment complaints, to be used where the parties agree to do

so.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.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.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 65 where doing so is

consistent with a school's obligations under the Family Educational

Rights and Privacy Act (FERPA) and its regulations.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).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.68

FERPA provides that the complainant may learn of actions taken

against

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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.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.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) 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 72;

and student newspapers, journals and other publications 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.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.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.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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