[Federal Register: November 2, 2000 (Volume 65, Number 213)]
[Notices]
[Page 66091-66114]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02no00-155]
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Part III
Department of Education
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Revised Sexual Harassment Guidance: Harassment of Students by School
Employees, Other Students, or Third Parties; Notice
[[Page 66092]]
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DEPARTMENT OF EDUCATION
Revised Sexual Harassment Guidance: Harassment of Students by
School Employees, Other Students, or Third Parties
AGENCY: Office for Civil Rights, Department of Education.
ACTION: Request for comments.
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SUMMARY: The Assistant Secretary for Civil Rights, U.S. Department of
Education (Department), is proposing to issue a new document that would
replace the 1997 document entitled ``Sexual Harassment Guidance:
Harassment of Students by School Employees, Other Students, or Third
Parties,'' issued by the Office for Civil Rights (OCR) on March 13,
1997 (1997 guidance). We are revising the guidance in limited respects
in light of recent Supreme Court cases relating to sexual harassment in
schools.
We intend the proposed revised guidance to serve the same purpose
as the 1997 guidance. It continues to provide educational institutions
with guidance about the standards under Title IX of the Education
Amendments of 1972 (Title IX) that we use, and that institutions should
use, to investigate and resolve allegations of sexual harassment of
students.
We request from all interested parties written comments on the
portions of the guidance revised to address the Supreme Court
decisions.
DATES: We must receive your comments on or before December 4, 2000.
ADDRESSES: Address all comments regarding the revised guidance to
Jeanette J. Lim, U.S. Department of Education, Office for Civil Rights,
400 Maryland Avenue, SW., room 5036 Switzer Building, Washington, DC
20202-1100. For all comments submitted by letter, you must include the
term ``Sexual Harassment Guidance Comments.'' If you prefer to send
your comments through the Internet, use the following address:
ocr@ed.gov.
You must include the term ``Sexual Harassment Guidance Comments''
in the subject line of your electronic message.
FOR FURTHER INFORMATION CONTACT: Jeanette J. Lim. Telephone: (202) 205-
5557 or 1-800-421-3481. If you use a telecommunications device for the
deaf (TDD), you may call the TDD number at (202) 260-0471.
For additional copies of this document, individuals may call OCR's
Customer Service Team at (202) 205-5557 or toll-free at 1-800-421-3481.
Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) on request to OCR's Customer Service Team listed in the
preceding paragraph.
SUPPLEMENTARY INFORMATION:
Invitation To Comment
We invite you to submit comments regarding the proposed revised
guidance in Appendix A that relates to the revisions made to address
recent Supreme Court decisions.
During and after the comment period, you may inspect all public
comments about this proposed revised guidance in room 5036, 330 C
Street, SW., Washington, DC, between the hours of 9:30 a.m. and 5:00
p.m., Eastern time, Monday through Friday of each week except Federal
holidays.
Assistance to Individuals With Disabilities in Reviewing the Public
Record
On request, we will supply an appropriate aid, such as a reader or
print magnifier, to an individual with a disability who needs
assistance to review the comments or other documents in the public
record for this proposed guidance. If you want to schedule an
appointment for this type of aid, you may call (202) 205-8113 or (202)
260-9895. If you use a TDD, you may call the Federal Information Relay
Service at 1-800-877-8339.
Purpose and Scope of the Revised Guidance
In March 1997, we published ``Sexual Harassment Guidance:
Harassment of Students by School Employees, Other Students, or Third
Parties'' (62 FR 12034). We issued the guidance pursuant to our
authority under Title IX, and our Title IX implementing regulations, to
eliminate discrimination based on sex in education programs and
activities receiving Federal financial assistance. It was grounded in
longstanding legal authority establishing that sexual harassment of
students can be a form of sex discrimination and is covered by Title
IX. It was the product of extensive consultation with interested
parties, including students, teachers, school administrators, and
researchers regarding the realities of sexual harassment and best
practices for responding to and preventing sexual harassment. We also
made the document available for public comment.
Since the issuance of the guidance, the Supreme Court (Court) has
issued several important decisions in sexual harassment cases,
including two decisions specifically addressing sexual harassment of
students: Gebser v. Lago Vista Independent School District (Gebser),
524 U.S. 274 (1998), and Davis v. Monroe County Board of Education
(Davis), 526 U.S. 629 (1999). In an August 1998 letter to school
superintendents and a January 1999 letter to college and university
presidents, the Secretary of Education informed school officials that
the Gebser decision did not change schools' obligations to take
reasonable steps to prevent and eliminate sexual harassment as a
condition of their receipt of Federal funding. In most important
respects, the substance of the 1997 guidance was reaffirmed in the
Court's opinions in Gebser and Davis, but we have determined that in
certain areas the 1997 guidance could be strengthened by further
clarification and explanation of the regulatory basis for the guidance.
We are, therefore, issuing this proposed revised guidance. The
scope of the revisions is limited. They are intended to reaffirm our
standards regarding sexual harassment, to clarify the regulatory basis
for the 1997 guidance, and to illustrate how and why the administrative
enforcement of Title IX's nondiscrimination requirements differs from
private lawsuits for money damages. In making clarifications to the
guidance flowing from the Supreme Court decisions, we also have taken
the opportunity to make a few additional clarifications that we believe
will be helpful to schools, including clarifying some examples from the
1997 guidance and adding some additional examples to illustrate the
Title IX standards discussed in the guidance. It is important to note
that these are just examples. Neither they nor the proposed revised
guidance create new Title IX standards.
Title IX Compliance Standard
In Gebser and Davis, the Supreme Court addressed for the first time
the appropriate standards for determining when a school district is
liable under Title IX for money damages in a private lawsuit brought by
a student who has been sexually harassed.
The Court held in Gebser that a school can be liable for
monetary damages if a teacher sexually harasses a student, an official
who has authority to address the harassment has actual knowledge of the
harassment, and that official is deliberately indifferent in responding
to the harassment.
In Davis, the Court announced that a school also may be
liable for monetary damages if one student sexually harasses another
student in the recipient's program and the conditions of Gebser are
met, i.e., an official who has authority to address the harassment
[[Page 66093]]
has actual knowledge of the harassment and is deliberately indifferent
in responding to the harassment. The Court also clarified that
deliberate indifference means that ``the recipient's response to the
harassment or lack thereof is clearly unreasonable in light of the
known circumstances.'' Davis, 526 U.S. at 648.
The Court was explicit in Gebser and Davis that the liability
standards established in these cases are limited to private actions for
monetary damages. See, e.g., Gebser, 524 U.S. 283, and Davis, 526 U.S.
at 639. The Court acknowledged, by contrast, the power of Federal
agencies such as the Department to ``promulgate and enforce
requirements that effectuate [Title IX's] nondiscrimination mandate,''
even in circumstances that would not give rise to a claim for money
damages. See Gebser, 524 U.S. at 292.
The Gebser Court further explained that the standard for obtaining
damages in private actions was grounded in its ``central concern''
arising out of the contractual nature of Title IX--that by accepting
Federal funds, a recipient does not unintentionally expose itself to a
large monetary damage award for discrimination of which it was unaware
and which it would have been willing to correct (524 U.S. at 287).
Under the Court's rulings, liability for money damages arising out of
sexual harassment of students, either by employees or by other
students, cannot arise unless the school has actual notice of the
harassing conduct and is deliberately indifferent in response.
The Gebser Court recognized and contrasted lawsuits for money
damages with the incremental nature of administrative enforcement of
Title IX by Federal agencies, such as the Department's Office for Civil
Rights (OCR). Under our Title IX regulations, we must first investigate
complaints and determine whether our investigation ``indicates a
failure to comply'' with the statute or regulations. If it does, we
must attempt to secure compliance by voluntary means. This may include
requiring the school to take remedial action necessary to overcome the
effects of the discrimination (Gebser, 524 U.S. at 288 (citing the
Department's regulations in 34 CFR 106.3)). Only if that fails, and the
recipient is provided both an opportunity for a hearing and express
findings of its failure to comply, will the recipient face the
possibility of the loss of continued Federal funding. See 34 CFR
106.71, 100.8, 100.9. In contrast to the Court's concerns in Gebser
about the possibility of an award of money damages in a private lawsuit
for harassment the recipient had not known about, fund termination
under administrative enforcement comes only after the recipient has
notice of a violation and an opportunity to correct it (Gebser, 524
U.S. at 289). In addition, the financial sanction under administrative
enforcement is limited to termination of, or refusal to grant or
continue, Federal assistance (Gebser, 524 U.S. at 290). As recognized
by the Court in Gebser, 524 U.S. at 287-292, our enforcement actions,
therefore, do not raise the Court's concern that a school district not
be held liable for large damage awards for past acts of which it was
unaware.\1\ Moreover, the Court's discussion makes clear that under
this incremental administrative enforcement scheme, we identify a
violation of Title IX or the Title IX regulations, and a school is
obligated to take corrective action in response to this violation, at a
point before either the statutorily required conditions applicable to
termination of funds or the Court-mandated conditions applicable to
obtaining money damages in private litigation have necessarily been
satisfied. See Gebser, 524 U.S. at 287-292.
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\1\ It is the position of the United States Government that the
standards set out in OCR's guidance for finding a violation and
seeking voluntary corrective action also would apply to private
actions for injunctive and other equitable relief. See brief of the
United States as Amicus Curiae in Davis v. Monroe County.
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Accordingly, our proposed revised guidance does not change the
standards that we use, and that a school district should use, to
determine the school district's responsibility for sexual harassment of
students. Rather, the proposed revised guidance clarifies that these
standards apply to our ability to find a violation and seek corrective
action in administrative enforcement of Title IX.
Because the focus of the guidance is on a school's administrative
responsibilities under the nondiscrimination requirements of the Title
IX statute and regulations, rather than its liability to private
litigants, the proposed revised guidance no longer describes a school's
compliance obligations in terms of ``liability'' or ``Title VII agency
law.'' Instead, the proposed revised guidance explains the regulatory
basis for a school's Title IX responsibilities to take effective action
to prevent, eliminate, and remedy sexual harassment occurring in its
program.
The Court Confirmed Important Principles From the 1997 Guidance
In Davis, Gebser, and a third opinion, Oncale v. Sundowner Offshore
Services, Inc. (Oncale), 523 U.S. 75 (1998) (a sexual harassment case
decided under Title VII of the Civil Rights Act of 1964 (Title VII)),
the Supreme Court confirmed several fundamental principles articulated
by the Department in the 1997 guidance. In these areas, no changes in
the guidance are necessary. The Court--
Endorsed the Department's power to set regulatory
requirements under Title IX. The Court held that, for example, a school
district's failure to promulgate a grievance procedure, as required by
the Title IX regulations, does not constitute unlawful discrimination,
but, nevertheless, such a regulatory requirement can be
administratively enforced by the Department (Gebser, 524 U.S. at 292).
Affirmed the Department's interpretation that student-on-
student (peer) harassment is covered by Title IX and resolved a circuit
court split on this issue (Davis, 526 U.S. at 633).
Described the type of conduct that rises to the level of
peer sexual harassment in a manner consistent with our guidance. The
Court explained that conduct had to adversely affect the student's
educational benefits or opportunities, such that the victim is
effectively denied equal access to these benefits and opportunities
(Davis, 526 U.S. at 648-651).
Held that not all conduct of a sexual nature rises to the
level of sexual harassment, Davis, 526 U.S. at 648-651, thus affirming
our guidance to schools that teachers and school administrators need to
use common sense and good judgment in responding appropriately to
allegations of sexual harassment. See also Oncale, 523 U.S. at 79-82.
Affirmed our position that the context of the behavior at
issue is crucial in determining whether sexual harassment has occurred.
See, e.g., Davis, 526 U.S. at 650 (citing our 1997 sexual harassment
guidance); Oncale, 523 U.S. at 81.
Held that sexual harassment may constitute discrimination
under Title VII even if the harasser and victim of harassment are of
the same sex (Oncale, 523 U.S. at 79-82). This is consistent with the
Department's position in the 1997 guidance that same-sex sexual
harassment can constitute discrimination under Title IX.
Made clear that, although the applicability of Title VII
agency principles in private Title IX lawsuits for money damages is
limited, it is still appropriate to look to Title VII principles in
determining what constitutes sexual harassment (Davis, 526 U.S. at 651,
citing Meritor Savings
[[Page 66094]]
Bank, FSB v. Vinson (Meritor), 477 U.S. 57, 67 (1986) (Title VII
case)).
Discussion of Important Clarifications
I. Liability Section Deleted and Guidance Refocused: Basis for
School's Responsibility Is the Title IX Regulations, Not Title VII
Agency Law
The 1997 guidance contained a section titled ``Liability of a
School for Sexual Harassment.'' To the extent this section could be
interpreted as being applicable to a school's liability in a private
lawsuit for monetary damages, the proposed revised guidance clarifies
that the guidance addresses the Department's administrative enforcement
of Title IX; it does not address standards applicable to private
litigation for monetary damages. Accordingly, the proposed guidance
replaces this section with a new section that focuses on a school's
responsibilities to prevent and eliminate sexual harassment
discrimination in its programs as a condition of its receipt of Federal
financial assistance, as summarized in the following section.
A. Sexual Harassment by Employees
The 1997 guidance indicated that when teachers or other employees,
when providing aid, benefits, or services to students, abuse or take
advantage of their status as a person of authority to engage in sexual
harassment, a school is responsible for that harassment even if other
school officials did not find out until later that the harassment
occurred.\2\ The 1997 guidance described determinations about a
school's responsibility in these cases, in part, in terms of the Title
VII agency-derived concept that if a teacher or other employee abuses
the authority given him or her by the school, it is as if the school
itself harassed the student (62 FR 12039). The Gebser Court rejected
Title VII's agency principles for the purpose of determining a school's
liability for monetary damages under Title IX.\3\ However, the concept
that in some cases a school must take action to remedy the effects of
an employee's discrimination exists in the longstanding Title IX
regulations without reliance on Title VII agency law.\4\
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\2\ This did not mean that, when the school only became aware of
this type of harassment after it occurred, the school was at risk of
losing its Federal funding solely because the harassing conduct had
occurred. As required by the statute, OCR always provides schools
with the opportunity to take reasonable steps to end the harassment,
prevent its recurrence, and remedy the effects of the harassment
once the school learns about the harassment--either through a
student complaint, notice from OCR, or other means discussed in the
guidance under ``Notice of Employee, Peer, or Third Party
Harassment.'' This issue is discussed further in the section of the
proposed revised guidance entitled ``OCR Case Resolution.''
\3\ As discussed in part II of this notice regarding the
definition of harassment, the Supreme Court's distinction between
Title IX and Title VII is limited to liability standards. The Title
VII law continues to be useful in determining what conduct
constitutes discrimination on the basis of sex under Title IX.
\4\ 34 CFR 106.3. Several days after the Gebser decision, the
Court handed down two decisions in Title VII sexual harassment
cases: Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998),
and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). These cases
affirmed that under Title VII agency principles, employers are
liable in monetary damages for the acts of their supervisors who
sexually harass subordinate employees. The Court also held that if
the victim does not suffer a tangible, adverse employment action as
a result of the harassment, the employer can assert an affirmative
defense if it can show both--(1) that the employer exercised
reasonable care to prevent and promptly correct any sexually
harassing behavior; and (2) that the employee unreasonably failed to
take advantage of these preventative or corrective opportunities
provided by the employer or to avoid harm otherwise. These decisions
do not affect OCR standards for several reasons. The Court in Gebser
was clear that its liability analysis under Title VII agency law
does not apply to Title IX, nor, more generally, do standards for
private monetary relief apply to OCR's administrative enforcement of
the civil rights laws. Moreover, whether or not the victim of
harassment uses available grievance procedures is different in the
school context where the degree of influence of the employee
harasser and the age of the student may prevent effective use of
grievance procedures. Finally, the administrative enforcement
process itself makes this type of affirmative defense inapplicable.
As is discussed in more detail in the section of the guidance
entitled ``OCR Case Resolution,'' if an OCR investigation reveals
that a school has taken all appropriate, timely corrective action in
response to information about sexual harassment by its employees--
whether it learned about the harassment from the victim, from OCR,
or some other way--OCR will consider the case resolved and will take
no further action against the school.
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The Department's Title IX implementing regulations prohibit sex-
based discrimination in the operation of the recipient's programs and
activities.\5\ Among other things, a recipient cannot, on the basis of
sex, treat students differently; provide different aid, benefits, or
services to students; deny or limit aid, benefits, or services to
students; or otherwise limit a student's enjoyment of a right,
privilege, or opportunity (34 CFR 106.31). (For brevity and clarity,
the regulatory requirements are generally summarized as a school's
obligation to ensure that a student is not denied or limited in his or
her ability to participate in or benefit from the school's program on
the basis of sex.) The Department has historically interpreted the
regulatory requirements to reflect Congress' understanding that Title
IX's prohibitions against discrimination are not limited to official
policies and practices established by the school district or high-level
officials to govern school programs, activities, benefits, and
services. Sex-based discrimination against individual students can also
occur if employees, as they are carrying out their day-to-day job
responsibilities for providing aid, benefits, or services to students,
(1) condition these benefits on the student's submission to sexual
advances, or (2) otherwise take advantage of their position of
responsibility to engage in actions that deny or limit a student's
ability to participate in or benefit from the school's program on the
basis of sex. (For brevity and clarity, the proposed revised guidance
generally refers to these types of employee harassment as harassment
that occurs in the context of providing aid, benefits, or services to
students and causes a denial or limitation of a benefit.)
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\5\ Title IX covers all of the operations of federally assisted
educational institutions and entities (20 U.S.C. 1687). The guidance
addresses harassment that occurs in education programs and
activities covered by Title IX and, thus, assumes in all cases that
the harassment occurs in connection with the academic, educational,
extracurricular, athletic, and other programs of the school. For
more information about the scope of coverage, see 65 FR 26426 (May
5, 2000).
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Thus, the regulations do not distinguish discrimination by the
recipient directly, e.g., actions by the school board or high-level
school officials, from discrimination that occurs if an employee is
acting in the context of providing aid, benefits, or services to
students and the employee engages in actions that deny or limit a
student's ability to participate in or benefit from the school's
program on the basis of sex. This is because a school, in large part,
can only operate its programs and activities through the
responsibilities it gives its teachers and other employees. The key
under the Title IX regulations is that the recipient cannot
discriminate in providing aid, benefits, or services to students. See
34 CFR 106.31(b). If the recipient provides aid, benefits, or services
to students through its employees, and an employee, in the context of
providing these to students, engages in actions that deny or limit a
student's ability to participate in or benefit from the school's
program on the basis of sex, the recipient is responsible for the
discrimination.
What does it mean to be responsible for the discrimination? The
Title IX regulations require a written assurance from every recipient
stating that all of its education programs and activities will be
operated in compliance with Title IX and the regulations, including
committing itself to take whatever remedial action is necessary to
eliminate discrimination in its programs (34 CFR 106.4(a) (citing the
remedial requirements of 106.3(a))). Section 106.3(a) of the
regulations requires that
[[Page 66095]]
if a recipient discriminates on the basis of sex, it must take action
necessary to overcome the effects of the discrimination. The Gebser
Court expressly affirmed this type of remedial action required under
our regulations, including remedying the effects of the harassment on
the victim (524 U.S. at 288). Thus, under the regulations, if the
recipient discriminates against a student, the recipient must remedy
the effects of that discrimination on the victim. As previously
discussed, this includes situations in which discrimination occurred
because an employee of the recipient, in the context of providing aid,
benefits, or services to students, took action that denied or limited a
student's ability to participate in or benefit from the school's
program.
It has been our longstanding interpretation of the civil rights
statutes and our regulations that the school's responsibility to take
reasonable steps to remedy the effects of its discrimination is
triggered when the violation occurs (e.g., a school employee, in the
context of providing aid, benefits, or services to students, engages in
action that denies or limits the student's ability to participate in or
benefit from the school's program), regardless of how or at what point
other school authorities learned of the discrimination. For instance,
if we investigated a complaint and found that a teacher of an advanced
placement math class routinely and without an educational basis gave
female students lower grades than their male counterparts, we would
find that the school has discriminated against students on the basis of
sex and that corrective action is required. In order to resolve the
discrimination in providing aid, benefits, or services, of which other
school officials subsequently became aware through our investigation,
we would not only require a recipient to take proactive steps to end
the discrimination and prevent its recurrence, but would also require
the recipient to remedy the effects of the discrimination, including
effects on the victims.
Thus, the proposed revised guidance clarifies that the school
discriminates if a teacher or other employee, in the context of
providing aid, benefits, or services to students, engages in harassing
conduct that causes a denial or limitation of a student's ability to
participate in or benefit from the school's program on the basis of
sex. The proposed revised guidance also clarifies that, because the
school is responsible for this discrimination, the school is
responsible both for taking reasonable proactive steps to end the
harassment and prevent its recurrence and for remedying any effects of
the sexual harassment on the victim.
If, on the other hand, an employee harassed a student outside of
this context, i.e., the harassment occurred in the school's program,
but not in the context of providing aid, benefits, or services to
students, the school is responsible for the sexual harassment under the
same standards that apply to peer and third party sexual harassment.
These have not changed from the 1997 guidance. In these instances, if
the harassment was sufficiently serious to effectively limit or deny a
benefit, but the school took prompt, effective steps once it learned or
should have learned of the harassment to end it and prevent its
recurrence, the school has avoided violating Title IX.
In determining whether an employee's harassing conduct occurs in
the context of providing aid, benefits, or services to students, it is
important to consider all the circumstances related to the harassment,
including the position of the harasser and the age and level of
education of the students involved. The Court recognized in Davis that
school officials and employees have a great degree of supervision,
control, and disciplinary authority over all aspects of elementary and
secondary school-age children's conduct (526 U.S. at 646). Moreover,
school-age children are generally expected and required to obey adults
as part of their participation in school programs and activities.
Thus, the proposed revised guidance outlines factors that we will
consider in determining whether the harassing conduct occurred within
the context of the employee's provision of aid, benefits, or services
to students. These factors include the age of the student, the
authority generally given to the harassing employee, the actual degree
of influence of the harassing employee over the student, as well as the
place, time, and nature of the harassing conduct. These determinations
regarding the context of the harassment need to be made on a case-by-
case basis.
B. Peer and Third Party Sexual Harassment
The standards described in the 1997 guidance applicable to peer and
third party harassment are the same in the proposed revised guidance.
C. Effect of Grievance Procedures
The discussion of liability in the 1997 guidance contained a
section on the effect of grievance procedures. To the extent this
section could be interpreted to guide courts regarding liability for
monetary damages, this section was affected by Gebser and Davis. This
proposed revised guidance clarifies that its focus is on the effect of
grievance procedures in our enforcement actions.
Schools are required by the Title IX regulations to disseminate a
policy against sex discrimination and to adopt and publish grievance
procedures providing for prompt and equitable resolution of sex
discrimination complaints, including complaints of sexual harassment.
The Gebser Court specifically affirmed the Department's authority to
enforce this requirement administratively in order to carry out Title
IX's nondiscrimination mandate (524 U.S. at 292). Strong policies and
effective grievance procedures are essential in order to let students
and employees know that sexual harassment will not be tolerated, to
ensure that they know how to report it, and to let students and
employees know that students can report harassment without fear of
adverse consequences.
If a school does not have effective policies and procedures, as
required by the Title IX regulations, its own inaction may hamper early
notification and intervention and may permit a sexually hostile
environment to exist in its program and activities. In this case, we
would require the school to take corrective action, including remedying
the effects of the harassment on the victim.
D. OCR Case Resolution
The 1997 guidance discussion of liability contained a subsection
titled ``OCR Case Resolution.'' Because the focus of the proposed
revised guidance is specifically OCR enforcement, this section has been
retained and clarified. This section lets schools know that, even if
the school discriminates, the school does not immediately lose Federal
funds on that basis alone. Consistent with the Title IX statute, we
provide recipients with the opportunity to take timely and effective
corrective action before issuing a formal finding of violation.
E. Notice of Harassment
The ``notice'' section has been moved up in the proposed revised
guidance to reflect its connection to the discussion of a school's
responsibility for remedying sexual harassment. For the reasons
discussed in the following paragraphs, although additional
clarification has been provided, this section has not been
substantively revised.
[[Page 66096]]
i. In Cases in Which Notice is Required To Trigger a School's
Responsibility, a School Will Be Responsible if It Knew or Should Have
Known About the Harassment
The 1997 guidance stated that a school has ``notice'' of sexual
harassment if it ``knew, or in the exercise of reasonable care should
have known,'' about the harassment. The proposed revised guidance
retains this notice standard. The type of constructive notice described
in the 1997 guidance has historically been the way we hold recipients
responsible for complying with the civil rights laws, and it is a
reasonable basis for holding a school responsible for taking
appropriate action in response to sexual harassment. It does not
require a school to predict future behavior or to be aware that
harassment is occurring or has occurred if there is no reasonable basis
for the school to know about it. Instead, the guidance describes a
reasonable duty to fully investigate if there are obvious problems,
such as the report of some incidents of harassment or a widespread
graffiti campaign in public areas.
The Gebser Court rejected a constructive notice, or ``should have
known'' standard, as the basis for imposing monetary damages because of
its central concern that a recipient should not be exposed to large
damage awards for discrimination of which it was unaware. This aspect
of the Gebser opinion, however, is not relevant in our enforcement
actions in which recipients voluntarily take corrective action as a
condition of continued receipt of Federal funds. Moreover, as stated
previously in the section entitled ``Title IX Compliance Standard,''
under our administrative enforcement, recipients are always given
actual notice and an opportunity to take appropriate corrective action
before facing the possible loss of Federal funds.
ii. Notice Can Be Provided to Any Responsible School Employee
Under Gebser, in order to receive monetary damages, notice of
sexual harassment must be given ``at a minimum, [to] an official of the
recipient entity with authority to take corrective action to end the
discrimination'' (524 U.S. at 290). The 1997 guidance, however,
specifically rejected the position suggested by some parties that
notice must be given to managerial or designated employees. In fact,
the 1997 guidance made clear that an employee who receives notice of
the harassment, if he or she does not have the authority to address the
harassment, may still be required to report the harassment to the
appropriate school official with authority to take corrective action.
The proposed revised guidance retains and clarifies this position
as a condition for continued receipt of Federal funds. For purposes of
our administrative enforcement of Title IX, the Department will
consider a school to have notice of harassment and a duty to respond if
a responsible school employee has notice of the harassment. A
responsible school employee would include any employee who either has
the authority to take action to address harassment or has the duty to
report sexual harassment or other misconduct by students or employees
to appropriate school authorities, as well as an individual who a
student could reasonably believe has the authority to either address
the harassment or the responsibility to report it to someone with the
authority to address it. This interpretation of the regulations is
fully consistent with Gebser and Davis. As previously discussed, the
Gebser Court recognized that Title IX responsibilities to respond to
harassment can be triggered before all statutorily required conditions
for fund termination have been satisfied, including the condition
requiring formal notice of violation to appropriate school officials.
In addition, this requirement is based on a reasonable expectation
of what steps a school can and should take to fulfill its
responsibilities under the regulations to respond to and prevent
discrimination in its education program. As the 1997 guidance
recognized, it is reasonable to expect that teachers and other
employees will see, or be told, that sexual harassment is occurring,
and, thus, schools should make sure that their employees at least
report what they see or what is told to them. Moreover, young children
may not understand the formal status of, or lines of authority of,
school employees and may reasonably believe that an adult, such as a
teacher or school nurse, is a person that they can and should tell
about incidents of sexual harassment.
II. Definition of Sexual Harassment
The section from the 1997 guidance titled ``Severe, Persistent, or
Pervasive'' has been re-titled ``Factors Used to Evaluate Sexual
Harassment.'' It now contains four subsections:
A. Types of Harassment
In the 1997 guidance, we described two different types of sexual
harassment: quid pro quo and hostile environment (62 FR 12038). As
discussed in the following paragraphs, our description of these terms
in the 1997 guidance is consistent with our regulations and with
applicable case law, and, therefore, these terms have been retained for
their usefulness in determining whether conduct is sexual harassment.
We have modified the proposed revised guidance to better represent
these concepts, and the discussion of quid pro quo and hostile
environment harassment has been moved from the introduction to this
section.
In Burlington Industries, Inc. v. Ellerth (Ellerth), 524 U.S. 742
(1998)--a Title VII sexual harassment case--the Court discussed the
usefulness of the distinction between quid pro quo and hostile
environment harassment. The Court held that this distinction continues
to be relevant in determining whether conduct rises to the level of
discrimination. The Court found that quid pro quo harassment requires a
tangible employment action to result from the harassment. If this is
not the case, e.g., a harasser threatens but does not take action if
the victim refuses to succumb to the harasser's sexual advances, the
conduct is considered hostile environment harassment. The conduct must
then be sufficiently serious to alter the conditions of the victim's
employment. Our description of these terms in the 1997 guidance is
consistent with our regulations and with the Court's holdings in
Ellerth, and, therefore, these terms have been retained for their
usefulness in determining whether conduct is sexual harassment. The
proposed revised guidance has modified the discussion of the basis of a
school's responsibility for harassment by teachers and other employees,
including both quid pro quo and hostile environment harassment, to
clarify the regulatory basis for that responsibility.
B. Quid Pro Quo Harassment
In addition to the clarifications previously outlined, the section
from the 1997 guidance titled ``Recipient's Response'' has been
modified slightly to eliminate references to quid pro quo harassment
because, in determining an appropriate response, the proposed revised
guidance focuses instead on whether or not the harassment by a teacher
or other employee occurred in the context of the employee's provision
of aid, benefits, or services to students.
C. Hostile Environment Harassment
As explained in the following paragraphs, in the proposed revised
guidance the definition of conduct that creates a hostile environment
is substantively the same as in the 1997
[[Page 66097]]
guidance, but the discussion contains several revisions to clarify that
the Davis definition and the guidance definition are consistent.
The Davis Court concluded that student-on-student sexual harassment
``if sufficiently severe can likewise rise to the level of
discrimination actionable under the statute'' (526 U.S. at 650). The
Court held that to support a claim for damages, student-on-student
sexual harassment must be ``so severe, pervasive, and objectively
offensive that it can be said to deprive the victims of access to the
educational opportunities or benefits'' (Davis, 526 U.S. at 650).
However, physical exclusion is not necessary; it is enough if the
student victims of sexual harassment can show that the harassment ``so
undermined and detracts from the victims'' educational experience, that
the victim-students are effectively denied equal access to an
institution's resources and opportunities.'' Id. (citing Meritor, 477
U.S. at 67).
Although the terms used by the Court in Davis are in some ways
different from the words used to define hostile environment harassment
in the 1997 guidance (see, e.g., 62 FR 12041, ``conduct of a sexual
nature is sufficiently severe, persistent, or pervasive to limit a
student's ability to participate in or benefit from the education
program, or to create a hostile or abusive educational environment''),
the definitions are consistent. The Court's definition, like the
Department's 1997 guidance, is a contextual description intended to
capture the same concept--that under Title IX the conduct must be
sufficiently serious that it adversely affects a student's ability to
participate in or benefit from the school's program. See 62 FR 12045
(the conduct must have limited the student's ability to participate or
altered the conditions of the student's educational environment); 34
CFR 106.31(b) (prohibiting recipients from denying or limiting a
student's ability to participate in or benefit from the school's
program).
This requirement is consistent with Meritor, a Title VII case cited
approvingly by the Davis Court, which requires sexual harassment to be
``sufficiently severe or pervasive to `alter the conditions of [the
victim's] employment and create an abusive working environment' '' (477
U.S. at 67). \6\ See also Harris v. Forklift Systems, Inc., 510 U.S.
17, 22 (1993) (which applied Meritor to hold that a victim need not
show serious psychological injury as long as she can show the conduct
created an abusive or hostile environment). The proposed revised
guidance clarifies some examples given in the 1997 guidance to make
clear that peer-on-peer acts are not sexual harassment under Title IX
if they merely make the student victim feel upset. As the discussion in
62 FR 12041 makes clear, our definition reflects a continuum of
severity. The ``or'' merely indicated that a particularly severe
incident may not need to be persistent to be a problem under Title IX.
---------------------------------------------------------------------------
\6\ In fact, the cites to Title VII cases by the Davis Court
throughout its discussion of actionable harassment under Title IX
indicate that the Court did not intend to change the definition of
sexual harassment but that the Court did intend that Title VII law
continue to be relevant in determining what constitutes sexual
harassment under title IX.
---------------------------------------------------------------------------
Under Davis, determining whether harassment is actionable ``depends
on a constellation of surrounding circumstances, expectations, and
relationships'' (526 U.S. at 651 (citing Oncale, a Title VII case)).
Similarly, the core of the 1997 guidance's definition of harassment is
the detailed discussion of these underlying factors (for example, the
age, relationship, and numbers of people involved), and the Davis Court
cites the factors in the 1997 guidance approvingly (526 U.S. at 651).
In addition, like the Court in Davis, we require schools to respond
to conduct that, from an objective perspective, is sufficiently serious
to deny or limit a student's ability to participate in or benefit from
the school's program (62 FR 12041). In Oncale, 523 U.S. at 82, the
Court emphasized that the objective severity of harassment is to be
based on the perspective of a reasonable person in the victim's
position `` `considering all the circumstances' '' (citing Harris, 510
U.S. at 23, in which the Court used a ``reasonable person'' standard to
determine whether sexual conduct constituted sexual harassment).
Finally, even looking only at the words the Court used in Davis,
this would not change our compliance standard for administrative
enforcement in cases of peer harassment. That is, we will always
determine whether the conduct is objectively offensive, and some level
of severity is always required in order to limit or deny a student's
ability to participate in or benefit from a school's program. In
addition, a recipient's obligation, upon notice of peer harassment, to
stop the harassment and prevent its recurrence is related to the
pervasiveness of the harassment.
Thus, although the Court referred to the conduct as being ``severe,
pervasive, and objectively offensive'' and the 1997 guidance referred
to the conduct as being ``severe, persistent, or pervasive . . . from
both a subjective and objective perspective,'' both inform a contextual
description intended to identify elements to evaluate whether the
conduct is sufficiently serious that it can affect a student's rights
under Title IX.
D. Welcomeness
This section from the 1997 guidance has been moved, but remains the
same in substance.
III. FERPA
The Department administers the Family Educational Rights and
Privacy Act (FERPA), which establishes requirements pertaining to
disclosure of information from a student's ``education records''
without the consent of the student. Thus, the requirements of FERPA are
involved if there are questions about disclosure of information from a
student's ``education records'' in cases of student-on-student
harassment. As noted in the 1997 guidance, the Department interprets
FERPA generally to prevent a school from disclosing to a student who
complained of harassment information about the sanction or discipline
imposed upon a student who was found to have engaged in that
harassment. There are exceptions in the case of a sanction that
directly relates to the person who was harassed, such as an order that
the harasser stay away from the victim, or sanctions related to
offenses for which there is a statutory exception, such as crimes of
violence or certain sex offenses in postsecondary institutions.
Furthermore, if we are conducting a civil rights investigation, FERPA
does not prohibit schools from disclosing to us information from a
student's ``education records,'' including information about applicable
sanctions or discipline (20 U.S.C. 1232g(b)(1)(C)).
The 1997 guidance promised additional guidance in this area.
Accordingly, the revised guidance clarifies that the Department
interprets FERPA to permit a student who filed a harassment complaint
to learn the outcome of his or her complaint, i.e., to learn whether
the complaint was investigated and whether harassment was found--
because this information directly relates to the victim. However, it
remains the Department's position that FERPA prevents a school from
disclosing to a victim the sanction or discipline imposed upon the
student found to have harassed the victim (unless, as previously
described, the sanction is directly related to the victim or there is a
statutory exception). The
[[Page 66098]]
Department recognizes that information about the sanctions is important
to the victim's remedy because this information enables the victim to
determine whether the school responded appropriately to the complaint.
Thus, the Department has proposed and supported a statutory amendment
to FERPA to permit this disclosure.
Reiteration of Important Aspects of the 1997 Guidance
A. Importance of Common Sense and Judgment
As with the 1997 guidance, the proposed revised guidance focuses on
the school's responsibility, and important role, in taking reasonable
steps to eliminate and prevent sexual harassment. A significant number
of students, both male and female, have experienced sexual harassment,
which can interfere with a student's academic performance and emotional
and physical well-being. Preventing and remedying sexual harassment in
schools is essential to ensure nondiscriminatory, safe environments in
which students can learn. The proposed revised guidance is important
because school personnel who understand their obligations under Title
IX are in the best position to prevent harassment and to lessen the
harm to students if, despite their best efforts, harassment occurs.
Several sexual harassment issues involving young students that were
widely reported in the press at the time the 1997 guidance was being
developed were discussed in the preamble to the guidance. The preamble
noted that these incidents provide a good example of how the guidance
can assist schools in understanding what is sexual harassment and in
formulating appropriate responses. As the Department stated then, a
kiss on the cheek by a first grader does not constitute sexual
harassment.
Since the 1997 guidance was published, we have heard from
educators, parents, and other interested parties that some schools
continue to overreact to incidents of childish behavior or immature
conduct that do not rise to the level of sexual harassment.
Accordingly, the proposed revised guidance, like the 1997 guidance,
illustrates that in addressing allegations of sexual harassment, the
good judgment and common sense of teachers and school administrators
are important elements of a response that meets the requirements of
Title IX. School personnel should consider the age and maturity of
students in responding to allegations of sexual harassment. For
example, age is relevant to determining whether a student welcomed the
conduct and to determining whether the conduct is serious enough to
rise to the level of sexual harassment. Age is a factor to be
considered by school personnel when determining how best to inform
students about a school's policies and procedures in order to prevent
sexual harassment from occurring.
However, we have also learned that some schools, perhaps out of
confusion regarding the legal standards for liability for money damages
for sexual harassment, or perhaps out of a misplaced notion that ``kids
will be kids,'' continue to avoid responding to serious incidents of
sexual harassment. If harassment has occurred, the critical issue under
Title IX is whether the school recognized that sexual harassment can
constitute sex discrimination and whether the school took prompt and
effective action calculated to end the harassment, prevent its
recurrence, and, as appropriate, address the effects of the harassment.
As the proposed revised guidance makes clear, if harassment has
occurred, doing nothing is always the wrong response. However,
depending on the circumstances, there may be more than one right way to
respond. The important thing is for school employees or officials to
pay attention to the school environment and not be afraid to act in a
reasonable, commonsense manner in response to sexual harassment, often
responding as they would to other types of serious misconduct.
Accordingly, important discussions from the 1997 guidance regarding the
recipient's response, requests for confidentiality, prevention
strategies, and effective grievance procedures remain intact in the
proposed guidance.
In addition, in describing the obligation of the school to take
action when harassment occurs, in the proposed revised guidance the
term ``effective'' has generally been substituted for the term
``appropriate.'' This is a clarification intended to underscore the
need for action to be effective and does not represent a change from
the 1997 guidance. This clarification should be read consistently with
the need to use common sense and good judgment. It does not mean that
there is any need for schools to overreact and impose the most severe
sanctions, e.g., suspension or expulsion of students who have engaged
in harassment, if other sanctions are consistent with the nature of the
misconduct and can reasonably be expected to be effective. As
recognized in the guidance, if a school's initial steps are
ineffective, a series of escalating steps may be necessary in order for
the action to be effective in responding to the harassment.
B. Applicability of Guidance to Same-Sex Harassment
The 1997 guidance explained that Title IX protects any ``person''
from sex discrimination. Thus, Title IX protects both male and female
students from sexual harassment, and schools have an obligation to deal
with complaints of sexual harassment equally whether the complainant is
male or female. Additionally, the guidance explained that Title IX
prohibits sexual harassment regardless of whether the harasser and the
person being harassed are members of the same sex, a position
subsequently supported by the Supreme Court's 1998 decision under Title
VII in Oncale. The 1997 guidance explained that all students,
regardless of their sexual orientation, are protected from sexual
harassment under Title IX, and this remains our position in the
proposed revised guidance. By promptly and effectively addressing
sexual harassment discrimination occurring in education programs or
activities, school personnel are in the best position to ensure a safe
and nondiscriminatory learning environment for every student. The focus
of the proposed revised guidance, like the 1997 guidance, is harassment
involving conduct of a sexual nature; thus, both explain that gender-
based harassment is beyond their scope. Of course, gender-based
harassment, including harassment based on sex-stereotyping, can also be
a violation of Title IX.
The harassment of students on the basis of sexual orientation is a
serious problem. As noted in the 1997 guidance and in the proposed
revised guidance, some State and local laws may prohibit discrimination
on the basis of sexual orientation, and, under certain circumstances,
courts may permit redress for harassment on the basis of sexual
orientation under other Federal legal authority. In January 1999 we
joined with the National Association of Attorneys General in issuing
the publication ``Protecting Students from Harassment and Hate Crime, A
Guide for Schools'' (Guide). The Guide provides educators with
practical guidance for protecting students from all forms of
harassment, including harassment on the basis of sexual orientation. As
the Secretary of Education, Richard Riley, stated in the introduction
to the Guide: ``Our schools owe students a safe environment that is
conducive to learning and that affords
[[Page 66099]]
all students an equal opportunity to achieve high educational
standards. Harassment and hate crimes undermine these purposes and may
cause serious harm to the development of students who are victimized by
this behavior.'' The Guide is a useful resource that school officials
may use to ensure that all students attend schools in a safe
environment free from all forms of harassment. The Guide is available
on our web page at:
http://www.ed.gov/pubs/Harassment.
C. Additional Information on the Development of the 1997 Guidance
Because the substance of the revised guidance has not changed
significantly, many of the comments that we received from interested
parties in response to a draft of the 1997 guidance, and our responses
to those comments, remain relevant and unchanged. We, therefore, are
attaching that portion of the 1997 Federal Register notice as Appendix
B to this document.
Electronic Access to This Document
You may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or Adobe
Portable Document Format (PDF), on the Internet at either of the
following sites:
http://ocfo.ed.gov/fedreg.htm
http://www.ed.gov/news.html
To use PDF, you must have Adobe Acrobat Reader, which is available free
at either of the previous sites. If you have questions about using PDF,
call the U.S. Government Printing Office (GPO), toll free, at 1-888-
293-6498; or in the Washington, DC, area at (202) 512-1530.
Note: The official version of this notice is the document
published in the Federal Register. Free Internet access to the
official edition of the Federal Register and the Code of Federal
Regulations is available on GPO Access at: http://www.acess.gpo.gov/
nara/index.html.
Dated: October 26, 2000.
Norma V. Cantu,
Assistant Secretary for Civil Rights.
Appendix A--Sexual Harassment Guidance: Harassment of Students \1\ by
School Employees, Other Students, or Third Parties Summary of Contents
Introduction
Applicability of Title IX
Title IX Regulatory Compliance Responsibilities
Harassment by Teachers and Other Employees
Harassment by Other Students or Third Parties
Notice of Employee, Peer, or Third Party Harassment
Grievance Procedures
OCR Case Resolution
Factors Used to Evaluate Sexual Harassment
Types of Harassment: Quid Pro Quo Harassment and Hostile Environment
Harassment
Quid Pro Quo Harassment
Hostile Environment Harassment
Welcomeness
Recipient's Response
Response to Student or Parent Reports of Harassment;
Response to Direct Observation of Harassment by a Responsible
Employee
Requests by the Harassed Student for Confidentiality
Response to Other Types of Notice
Prevention
Prompt and Equitable Grievance Procedures
First Amendment
Introduction. Title IX of the Education Amendments of 1972
(Title IX) and the Department of Education's implementing
regulations prohibit discrimination on the basis of sex in federally
assisted education programs and activities.\2\ The Supreme Court,
the Congress, and Federal executive departments and agencies,
including the Department of Education, have recognized that sexual
harassment of students can constitute discrimination prohibited by
Title IX.\3\ This guidance focuses on a school's fundamental
compliance responsibilities under Title IX and the Title IX
regulations to address sexual harassment of students as a condition
of continued receipt of Federal funding.
Sexual harassment can include unwelcome verbal, nonverbal, or
physical conduct of a sexual nature. If a student is sexually
harassed, the harassing conduct can deny or limit, on the basis of
sex, the student's ability to participate in or to receive benefits,
services, or opportunities in the school's program. This guidance
describes the regulatory basis for a school's compliance
responsibilities under Title IX, outlines the circumstances under
which sexual harassment may constitute discrimination prohibited by
the statute and regulations, and provides information about actions
that schools should take to prevent sexual harassment or to remedy
it effectively if it does occur.
Applicability of Title IX. Title IX applies to all public and
private educational institutions that receive Federal funds, i.e.,
recipients, including, but not limited to, elementary and secondary
schools, school districts, proprietary schools, colleges, and
universities. The guidance uses the terms ``recipients'' and
``schools'' interchangeably to refer to all of those institutions.
The ``education program or activity'' of a school includes all of
the school's operations.\4\ 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.
It is important to recognize that Title IX's prohibition against
sexual harassment does not extend to legitimate nonsexual touching
or other nonsexual conduct. For example, a high school athletic
coach hugging a student who made a goal or a kindergarten teacher's
consoling hug for a child with a skinned knee will not be considered
sexual harassment.\5\ Similarly, one student's demonstration of a
sports maneuver or technique requiring contact with another student
will not be considered sexual harassment. However, in some
circumstances, nonsexual conduct may take on sexual connotations and
rise to the level of sexual harassment. For example, a teacher's
repeatedly hugging and putting his or her arms around students under
inappropriate circumstances could create a hostile environment.
A student may be sexually harassed by a school employee,\6\
another student, or a non-employee third party (e.g., a visiting
speaker or visiting athletes). Title IX protects any ``person'' from
sex discrimination. Accordingly, both male and female students are
protected from sexual harassment \7\ engaged in by a school's
employees, other students, or third parties. Moreover, Title IX
prohibits sexual harassment regardless of the sex of the harasser,
i.e., even if the harasser and the person being harassed are members
of the same sex.\8\ An example would be a campaign of sexually
explicit graffiti directed at a particular girl by other girls.\9\
Although Title IX does not prohibit discrimination on the basis
of sexual orientation,10 11 sexual harassment directed at
gay or lesbian students may constitute sexual harassment prohibited
by Title IX. For example, if students heckle another student with
comments based on the student's sexual orientation (e.g., ``gay
students are not welcome at this table in the cafeteria''), but
their actions do not involve sexual conduct, their actions would not
be sexual harassment covered by Title IX. On the other hand,
harassing conduct of a sexual nature directed toward gay or lesbian
students (e.g., if a male student or a group of male students target
a gay student for physical sexual advances) may create a sexually
hostile environment and, therefore, may be prohibited by Title IX.
Although a comprehensive discussion of gender-based harassment
is beyond the scope of this guidance, it is also important to
recognize that gender-based harassment, which may include acts of
verbal, nonverbal, or physical aggression, intimidation, or
hostility based on sex or sex-stereotyping, but not involving
conduct of a sexual nature, may be a form of sex discrimination that
violates Title IX and the Title IX regulations if it rises to a
level that denies or interferes with benefits, services, or
opportunities and is directed at individuals because of their
sex.12 For example, the repeated sabotaging of female
graduate students' laboratory experiments by male students in the
class could be the basis of a violation of Title IX. In assessing
all related circumstances to determine whether a hostile environment
exists, incidents of gender-based harassment combined with incidents
of sexual harassment could create a hostile environment, even if
neither the gender-based harassment alone nor the sexual
[[Page 66100]]
harassment alone would be sufficient to do so.13
Title IX Regulatory Compliance Responsibilities. As a condition
of receiving funds from the Department, a school is required to
comply with Title IX and the Department's Title IX regulations,
which spell out prohibitions against sex discrimination. The law is
clear that sexual harassment may constitute sex discrimination under
Title IX.14
Recipients specifically agree, as a condition for receiving
Federal financial assistance from the Department, to comply with
Title IX and the Department's Title IX regulations. The regulatory
provision requiring this agreement, known as an assurance of
compliance, specifies that recipients must agree that education
programs or activities operated by the recipient will be operated in
compliance with the Title IX regulations, including taking any
action necessary to remedy its discrimination or the effects of its
discrimination in its programs.15
The regulations set out the basic Title IX responsibilities a
recipient undertakes when it accepts Federal financial assistance,
including the following specific obligations.16 A
recipient agrees that, in providing any aid, benefit, or service to
students, it will not, on the basis of sex--
Treat one student differently from another in
determining whether the student satisfies any requirement or
condition for the provision of any aid, benefit, or service;
17
Provide different aid, benefits, or services or provide
aid, benefits, or services in a different manner; 18
Deny any student any such aid, benefit, or service;
19
Subject students to separate or different rules of
behavior, sanctions, or other treatment; 20
Aid or perpetuate discrimination against a student by
providing significant assistance to any agency, organization, or
person that discriminates on the basis of sex in providing any
benefit, service, or opportunity to students; 21 and
Otherwise limit any student in the enjoyment of any
right, privilege, advantage, or opportunity.22
For the purposes of brevity and clarity, this proposed revised
guidance generally summarizes this comprehensive list by referring
to a school's obligation to ensure that a student is not denied or
limited in the ability to participate in or benefit from the
school's program on the basis of sex.
The regulations also specify that, if a recipient discriminates
on the basis of sex, the school must take remedial action to
overcome the effects of the discrimination.23
In addition, the regulations establish procedural requirements
that are important for the prevention of, or correction of, sex
discrimination, including sexual harassment. These requirements
include issuance of a policy against sex discrimination
24 and adoption and publication of grievance procedures
providing for prompt and equitable resolution of complaints of sex
discrimination.25 The regulations also require that
recipients designate at least one employee to coordinate compliance
with the regulations, including coordination of investigations of
complaints alleging noncompliance.26
As explained in this guidance, based on these regulatory
requirements, schools need to recognize and respond to sexual
harassment of students by teachers and other employees, by other
students, and by third parties. This guidance explains how the
requirements of the Title IX regulations apply to situations
involving sexual harassment of a student and outlines measures that
schools should take to ensure compliance with these requirements.
Harassment by Teachers and Other Employees. Sexual harassment of
a student by a teacher or other school employee may be
discrimination in violation of Title IX.27 This guidance
outlines the circumstances under which an employee's actions can
cause discrimination and trigger the school's responsibility for
taking effective corrective action. In sum, a recipient's
responsibility for employee harassment is distinguishable based on
whether or not the harassment occurred in the context of the
employee's provision of aid, benefits, or services to students. If
the answer is yes, as described in the next paragraph, this triggers
the recipient's responsibilities. What this means for purposes of
OCR's administrative requirements is that the recipient must take
reasonable steps to eliminate the hostile environment caused by the
harassment, to prevent its recurrence, and to remedy its effects.
(Of course, under OCR's administrative enforcement, a recipient will
always have actual notice and an opportunity to take appropriate
corrective action before facing the loss of Federal funds.) By
contrast, if the harassment occurs in the school's program, but not
in the context of the employee's provision of aid, benefits, or
services to students, the recipient's responsibility is not
triggered until it has notice. Thus, if upon notice, it takes prompt
and effective steps to end the harassment and prevent its
recurrence, it has satisfied its obligations under the Title IX
regulations, and the recipient is not responsible for the effects of
the harassment on the victim that occurred prior to notice.
When is an employee acting in the context of providing aid,
benefits, or services to students? A recipient is responsible for
the nondiscriminatory provision of aid, benefits, or services to
students, and a recipient generally provides these to students
through the responsibilities it gives its employees. If an employee,
in the context of providing aid, benefits, or services to students,
takes advantage of his or her position of responsibility over
students and engages in actions that deny or limit a student's
ability to participate in or benefit from the school's program on
the basis of sex,28 the recipient is responsible for the
discrimination.29
For example, in some instances, an employee will condition the
provision of aid, benefits, or services to a student on submission
to sexual harassment. In other instances, an employee's conduct is
sufficiently serious that it creates a hostile environment in a
situation in which an employee takes advantage of the
responsibilities given to him or her by the school to provide aid,
benefits, or services to students to engage in harassment, or,
because of the way the school is run, the employee reasonably
appears to be taking advantage of this position of responsibility
when engaging in the harassment. (For more information see ``Types
of Harassment: Quid Pro Quo Harassment and Hostile Environment
Harassment,'' as well as the paragraphs that follow in this
section.) For brevity and clarity, this proposed revised guidance
generally refers to the types of employee harassment described in
this paragraph as causing a denial or limitation of a benefit that
occurred in the context of the employee's provision of aid,
benefits, or services to students. Factors to be considered in
determining whether an employee's harassing conduct occurred in the
context of providing aid, benefits, or services to students are
outlined in the following paragraphs of this section. In the
situations described in this paragraph, because the school is
responsible for the denial or limitation of the student's ability to
participate in or benefit from the school's program on the basis of
sex, the school is responsible for taking timely and effective
action to end the harassment, prevent its recurrence, and remedy its
effect on the victim.
On the other hand, if a teacher or other school employee engages
in harassment of a student outside of this context, i.e., if the
harassment occurs in the school's program, but not in the context of
the employee's provision of aid, benefits, or services to students,
and if the harassment is sufficiently serious to create a hostile
environment, the school is responsible, upon notice of the
harassment, for taking prompt and effective action to stop the
harassment and prevent its recurrence.\30\ (This is the same
standard applicable to peer and third party harassment, which is
discussed in the following section.) As explained in ``Notice of
Employee, Peer, or Third Party Harassment,'' for the purposes of
this guidance, a school has notice of harassment if a responsible
school employee actually knew, or in the exercise of reasonable care
should have known, about the harassment. If, upon notice, the school
takes immediate and effective action reasonably calculated to end
the harassment, eliminate the hostile environment, and prevent its
recurrence, it has avoided violating the Title IX regulations. If,
upon notice,\31\ the school fails to take prompt and effective
action, its own failure to act has allowed the student to continue
to be subjected to a hostile environment that denies or limits the
student's ability to participate in or benefit from the school's
program. If this occurs, the school is then responsible for taking
corrective action to remedy the effects of the harassment on the
victim that could have been prevented if the school had responded
promptly and effectively, as well as taking corrective action to
stop the harassment and prevent its recurrence. (See the sections on
``OCR Case Resolution'' and ``Recipient's Response.'')
In assessing a school's responsibility under the Title IX
regulations for an employee's sexual harassment of a student, OCR
considers whether or not the sexual
[[Page 66101]]
harassment occurred in the context of the employee's provision of
aid, benefits, or services to students. In determining this, OCR
will consider on a case-by-case basis the nature and circumstances
of the harassing conduct as it relates to the employee's provision
of aid, benefits, or services to students in the school's program.
If an employee engages in quid pro quo harassment, i.e., the
employee conditions an educational benefit or decision on a
student's submission to sexual conduct, the student clearly is being
denied or limited in his or her ability to participate in or benefit
from the school's program on the basis of sex. In addition, the
harassment is clearly occurring in the context of the employee's
provision of aid, benefits, or services to students. An example
would be a teacher who conditions a student's grade on submission to
sexual advances and then gives the student a poor grade for
rejecting the harassment. In situations that do not involve quid pro
quo harassment, but in which an employee's sexually harassing
conduct is sufficiently serious to create a hostile environment, OCR
will consider the following interrelated factors in determining
whether the harassment occurred in the context of the employee's
provision of aid, benefits, or services to students:
The degree of responsibility given to the employee,
including informal and formal authority to provide aid, benefits, or
services to students, to direct and control student conduct, or to
discipline students generally;
The degree of influence the employee has over the
particular student involved, including in the context in which the
harassment took place;
Where and when the harassment occurred; and
The age and educational level of the student involved,
and, as applicable, whether, due to the student's age and
educational level and the way the school is run, it would be
reasonable for a student to believe that the employee was in a
position of responsibility over the student, even if the employee
was not.
These factors are applicable to all recipient educational
institutions, including elementary and secondary schools, colleges,
and universities.
In cases involving allegations of harassment of elementary and
secondary school-age students by a teacher or school administrator
during any school activity,\32\ consideration of these factors will
generally lead to a conclusion that the harassment occurred in the
context of the employee's provision of aid, benefits, or services.
This is because elementary and secondary schools are typically run
in a way that gives teachers, school officials, and certain other
school employees a substantial degree of supervision, control, and
disciplinary authority over the conduct of students.\33\ For
example, a teacher may sexually harass an eighth grade student in a
school hallway. Even if the student is not in any of the teacher's
classes and even if the teacher is not a designated hallway monitor,
given the age and educational level of the student and the status
and degree of influence of teachers in elementary and secondary
schools, it would be reasonable for the student to believe that the
teacher had at least informal disciplinary authority over students
in the hallways. Similarly, a high school coach may require an
athlete to come to his office for a post-game discussion of the
athlete's performance and then use this meeting to make sexual
advances. In these examples, all the factors (nature and
circumstances of the harassment, age and education level of the
student, employee's position of responsibility, employee's degree of
influence over the student, and where and when the harassment
occurred) would indicate that the harassment occurred in the context
of the employee's provision of aid, benefits, or services to
students. With respect to other types of employees, e.g., custodial
employees, these same factors would be considered to determine
whether or not it would be reasonable for the student to believe
that the employee had a position of responsibility over him or her
and, thus, was in a position to take advantage of that
responsibility to limit or deny aid, benefits, or services to the
student.
On the other hand, consider the case in which a university
custodian sexually harasses a graduate student in the hallway of a
university building. Based on the considerations set out in the
factors listed previously, even though the harassment occurred in
the hallway of a university building, due to the age and education
level of the student, taken together with the employee's lack of
authority or influence over that student, OCR would conclude that
the harassment did not occur in the context of the employee's
provision of aid, benefits, or services to students. Thus, as
previously described, the university's obligation to respond
promptly and effectively would be triggered when it knew or should
have known of the harassment.
Harassment by Other Students or Third Parties. If a student
sexually harasses another student and the harassing conduct is
sufficiently serious to deny or limit the student's ability to
participate in or benefit from the program, and if the school knows
or reasonably should know \34\ about the harassment, the school is
responsible for taking immediate effective action to eliminate the
hostile environment and prevent its recurrence.\35\ As long as the
school, upon notice of the harassment, responds by taking prompt and
effective action to end the harassment and prevent its recurrence,
the school has carried out its responsibility under the Title IX
regulations. On the other hand, if, upon notice, the school fails to
take prompt, effective action, the school's own action has permitted
the student to be subjected to a hostile environment that denies or
limits the student's ability to participate in or benefit from the
school's program on the basis of sex.\36\ In this case, the school
is responsible for taking effective corrective actions to stop the
harassment, prevent its recurrence, and remedy its effects on the
victim.
Similarly, sexually harassing conduct by third parties, who are
not themselves employees or students at the school (e.g., a visiting
speaker or members of a visiting athletic team), may also be of a
sufficiently serious nature as to interfere with a student's ability
to participate in or benefit from the education program. As
previously outlined in connection with peer harassment, if the
school knows or should know \37\ of the harassment, the school is
responsible for taking prompt and effective action to eliminate the
hostile environment and prevent its recurrence. The type of
appropriate steps that the school should take will differ depending
on the level of control that the school has over the third party
harasser.\38\ For example, if athletes from a visiting team harass
the home school's students, the home school may not be able to
discipline the athletes. However, it could encourage the other
school to take appropriate action to prevent further incidents; if
necessary, the home school may choose not to invite the other school
back. This issue is discussed more fully in ``Recipient's
Response.'' If, upon notice, the school fails to take prompt and
effective corrective action, its own failure has permitted the
student to be subjected to a hostile environment that limits the
student's ability to participate in or benefit from the education
program.\39\ In this case, the school is responsible for taking
corrective actions to stop the harassment, prevent its recurrence,
and remedy its effects on the victim.
Notice of Employee, Peer, or Third Party Harassment. As
described in the section on ``Harassment by Teachers and Other
Employees,'' schools may be responsible for certain types of
employee harassment that occurred before other school officials had
notice of harassment, as described in this section. On the other
hand, as described in that section and the section on ``Harassment
by Other Students or Third Parties,'' in situations involving
certain other types of employee harassment or harassment by peers or
third parties, a school will be in violation of the Title IX
regulations if the school ``has notice'' of a sexually hostile
environment and fails to take immediate and effective corrective
action.\40\ A school has notice if a responsible employee ``knew, or
in the exercise of reasonable care should have known,'' about the
harassment.\41\ A responsible employee would include any employee
who has the authority to take action to redress the harassment, who
has the duty to report to appropriate school officials sexual
harassment or any other misconduct by students or employees, or an
individual who a student could reasonably believe has this authority
or responsibility.\42\ Accordingly, schools need to ensure that
employees are trained so that employees with authority to address
harassment know how to respond appropriately, and other responsible
employees know that they are obligated to report harassment to
appropriate school officials. Training for employees should include
practical information about how to identify harassment and, as
applicable, the person to whom it should be reported.
A school can receive notice of harassment in many different
ways. A student may have filed a grievance with the Title IX
coordinator \43\ or complained to a teacher or other responsible
employee about fellow students harassing him or her. A student,
parent, or other individual may have
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contacted other appropriate personnel, such as a principal, campus
security, bus driver, teacher, affirmative action officer, or staff
in the office of student affairs. A teacher or other responsible
employee of the school may have witnessed the harassment. The school
may receive notice about harassment in an indirect manner, from
sources such as a member of the school staff, a member of the
educational or local community, or the media. The school also may
have learned about the harassment from flyers about the incident
distributed at the school or posted around the school. For the
purposes of compliance with the Title IX regulations, a school has a
duty to respond to harassment that it reasonably should have known
about, i.e., if it would have learned of the harassment if it had
exercised reasonable care or made a ``reasonably diligent inquiry.''
\44\ For example, in some situations if the school knows of
incidents of harassment, the exercise of reasonable care should
trigger an investigation that would lead to a discovery of
additional incidents.\45\ In other cases, the pervasiveness of the
harassment may be enough to conclude that the school should have
known of the hostile environment--if the harassment is widespread,
openly practiced, or well-known to students and staff (such as
sexual harassment occurring in the hallways, graffiti in public
areas, or harassment occurring during recess under a teacher's
supervision.) \46\
If a school otherwise knows or reasonably should know of a
hostile environment and fails to take immediate and effective
corrective action, a school has violated Title IX even if the
student has failed to use the school's existing grievance procedures
or otherwise inform the school of the harassment.
Grievance Procedures. Schools are required by the Title IX
regulations to adopt and publish grievance procedures providing for
prompt and equitable resolution of sex discrimination complaints,
including complaints of sexual harassment, and to disseminate a
policy against sex discrimination.\47\ (These issues are discussed
in the section on ``Prompt and Equitable Grievance Procedures.'')
These procedures provide a school with a mechanism for discovering
sexual harassment as early as possible and for effectively
correcting problems, as required by the Title IX regulations. By
having a strong policy against sex discrimination and accessible,
effective, and fairly applied grievance procedures, a school is
telling its students that it does not tolerate sexual harassment and
that students can report it without fear of adverse consequences.
Without a policy and procedure, a student does not know either
of the school's obligation to address this form of discrimination or
how to report harassment so that it can be remedied. If the alleged
harassment is sufficiently serious to create a hostile environment
and it is the school's failure to comply with the procedural
requirements of the Title IX regulations that hampers early
notification and intervention and permits sexual harassment to deny
or limit a student's ability to participate in or benefit from the
school's program on the basis of sex,\48\ the school will be
responsible under the Title IX regulations, once informed of the
harassment, to take corrective action, including stopping the
harassment, preventing its recurrence, and remedying the effects of
the harassment on the victim.
OCR Case Resolution. If OCR is asked to investigate or otherwise
resolve incidents of sexual harassment of students, including
incidents caused by employees, other students, or third parties, OCR
will consider whether--(1) The school has a policy prohibiting sex
discrimination under Title IX \49\ and effective grievance
procedures; \50\ (2) the school appropriately investigated or
otherwise responded to allegations of sexual harassment; \51\ and
(3) the school has taken immediate and effective corrective action
responsive to the harassment, including effective actions to end the
harassment, prevent its recurrence, and, as appropriate, remedy its
effects.\52\ (Issues related to appropriate investigative and
corrective actions are discussed in detail in the section on
``Recipient's Response.'')
If the school has taken each of these steps, OCR will consider
the case against the school resolved and will take no further
action, other than monitoring compliance with an agreement, if any,
between the school and OCR. This is true in cases in which the
school was in violation of the Title IX regulations (e.g., a teacher
sexually harassed a student in the context of providing aid,
benefits, or services to students), as well as those in which there
has been no violation of the regulations (e.g., in a peer sexual
harassment situation in which the school took immediate, reasonable
steps to end the harassment and prevent its recurrence). This is
because, even if OCR identifies a violation, Title IX requires OCR
to attempt to secure voluntary compliance.\53\ Thus, because a
school will have the opportunity to take reasonable corrective
action before OCR issues a formal finding of violation, a school
does not risk losing its Federal funding solely because
discrimination occurred.
Factors Used To Evaluate Sexual Harassment
Types of Harassment: Quid Pro Quo Harassment and Hostile
Environment Harassment. Sexual harassment may constitute sex
discrimination prohibited by Title IX and the Title IX regulations.
As outlined in the following paragraphs, sexual harassment may be
categorized as either quid pro quo harassment or hostile environment
harassment.\54\ Sexually harassing conduct can include unwelcome
sexual advances, requests for sexual favors, and other physical,
verbal, or nonverbal conduct of a sexual nature.\55\
It is important to recognize that the line between quid pro quo
and hostile environment sexual harassment is often blurred, and the
prohibited conduct may involve elements of both. What is important
is determining whether sexual harassment has denied or limited a
student's ability to participate in or benefit from the school's
programs or activities based on sex, regardless of whether it is
labeled quid pro quo or hostile environment harassment.
Quid Pro Quo Harassment. Quid pro quo harassment occurs whenever
a school employee \56\ explicitly or implicitly conditions a
student's participation in an education program or bases an
educational decision on the student's submission to unwelcome sexual
advances, requests for sexual favors, or other physical, verbal, or
nonverbal conduct of a sexual nature. When quid pro quo harassment
occurs, whether the student resists and suffers the threatened harm
or submits and thus avoids the threatened harm, the student has been
treated differently or the student's ability to participate in or
benefit from the school's program has been denied or limited based
on sex.\57\
Hostile Environment Harassment. A sexually hostile environment
is created if sexually harassing conduct by an employee, by another
student, or by a third party is sufficiently serious that it denies
or limits a student's ability to participate in or benefit from the
school's program based on sex.\58\
As outlined in the following paragraphs, OCR considers a variety
of related factors to evaluate the severity and pervasiveness of the
conduct. OCR considers the conduct from both a subjective \59\ and
objective \60\ perspective. In evaluating the severity and
pervasiveness of the conduct, OCR considers all relevant
circumstances, i.e., ``the constellation of surrounding
circumstances, expectations, and relationships.'' \61\ Schools
should also use these factors to evaluate conduct in order to draw
commonsense distinctions between conduct that constitutes sexual
harassment and conduct that does not rise to that level. Relevant
factors include the following:
The degree to which the conduct affected one or more
students' education. In considering the effect of the harassment on
the student in terms of whether it has denied or limited the
student's ability to participate in or benefit from the school's
program, OCR assesses both tangible and intangible effects. Many
hostile environment cases involve tangible or obvious injuries.\62\
For example, a student's grades may go down or the student may be
forced to withdraw from school because of the harassing
behavior.\63\ A student may also suffer physical injuries or mental
or emotional distress.\64\ In other cases a hostile environment may
exist even if there is no tangible injury to the student.\65\ For
example, a student may have been able to keep up his or her grades
and continue to attend school even though it was very difficult for
him or her to do so because of the teacher's repeated sexual
advances. Similarly, a student may be able to remain on a sports
team, despite experiencing great difficulty performing at practices
and games from the humiliation and anger caused by repeated sexual
advances and intimidation by several team members that create a
hostile environment. Harassing conduct in these examples would alter
a reasonable student's educational environment and adversely affect
the student's ability to participate in or benefit from the school's
program on the basis of sex.
A hostile environment can occur even if the harassment is not
targeted specifically at the individual complainant.\66\ For
example, if a student, group of students, or a teacher regularly
directs sexual comments toward a
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particular student, a hostile environment may be created not only
for the targeted student, but also for others who witness the
conduct.
The type, frequency, and duration of the conduct. In
most cases, a hostile environment will exist if there is a pattern
or practice of harassment, or if the harassment is sustained and
nontrivial.\67\ For instance, if a young woman is taunted by one or
more young men about her breasts or genital area or both, OCR may
find that a hostile environment has been created, particularly if
the conduct has gone on for some time, or takes place throughout the
school, or if the taunts are made by a number of students. The more
severe the conduct, the less the need to show a repetitive series of
incidents; this is particularly true if the harassment is physical.
For instance, if the conduct is more severe, e.g., attempts to grab
a female student's breasts or attempts to grab any student's genital
area or buttocks, it need not be as persistent to create a hostile
environment. Indeed, a single or isolated incident of sexual
harassment may, if sufficiently severe, create a hostile
environment.\68\ On the other hand, conduct that is not severe will
not create a hostile environment; e.g., a comment by one student to
another student that she has a nice figure. Indeed, depending on the
circumstances, this may not even be conduct of a sexual nature.\69\
Similarly, because students date one another, a request for a date
or a gift of flowers, even if unwelcome, would not create a hostile
environment. However, there may be circumstances in which repeated,
unwelcome requests for dates or similar conduct could create a
hostile environment. For example, a person, who has been refused
previously, may request dates in an intimidating or threatening
manner.
The identity of and relationship between the alleged
harasser and the subject or subjects of the harassment. A factor to
be considered, especially in cases involving allegations of sexual
harassment of a student by a school employee, is the identity of and
relationship between the alleged harasser and the subject or
subjects of the harassment. For example, due to the power a
professor or teacher has over a student, sexually based conduct by
that person toward a student is more likely to create a hostile
environment than similar conduct by another student.\70\
The number of individuals involved. Sexual harassment
may be committed by an individual or a group. In some cases, verbal
comments or other conduct from one person might not be sufficient to
create a hostile environment, but could be if done by a group.
Similarly, while harassment can be directed toward an individual or
a group,\71\ the effect of the conduct toward a group may vary,
depending on the type of conduct and the context. For certain types
of conduct, there may be ``safety in numbers.'' For example,
following an individual student and making sexual taunts to him or
her may be very intimidating to that student, but, in certain
circumstances, less so to a group of students. On the other hand,
persistent unwelcome sexual conduct still may create a hostile
environment if directed toward a group.
The age and sex of the alleged harasser and the subject
or subjects of the harassment. For example, in the case of younger
students, sexually harassing conduct is more likely to be
intimidating if coming from an older student.\72\
The size of the school, location of the incidents, and
context in which they occurred. Depending on the circumstances of a
particular case, fewer incidents may have a greater effect at a
small college than at a large university campus. Harassing conduct
occurring on a school bus may be more intimidating than similar
conduct on a school playground because the restricted area makes it
impossible for students to avoid their harassers.\73\ Harassing
conduct in a personal or secluded area, such as a dormitory room or
residence hall, can have a greater effect (e.g., be seen as more
threatening) than would similar conduct in a more public area. On
the other hand, harassing conduct in a public place may be more
humiliating. Each incident must be judged individually.
Other incidents at the school. A series of incidents at
the school, not involving the same students, could--taken together--
create a hostile environment, even if each by itself would not be
sufficient.\74\
Incidents of gender-based, but nonsexual harassment.
Acts of verbal, nonverbal or physical aggression, intimidation or
hostility based on sex, but not involving sexual activity or
language, can be combined with incidents of sexual harassment to
determine if the incidents of sexual harassment are sufficiently
serious to create a sexually hostile environment.\75\
It is the totality of the circumstances in which the behavior
occurs that is critical in determining whether a hostile environment
exists. Consequently, in using the factors discussed previously to
evaluate incidents of alleged harassment, it is always important to
use common sense and reasonable judgement in determining whether a
sexually hostile environment has been created.
Welcomeness. In order for conduct of a sexual nature to be
sexual harassment, it must be unwelcome. Conduct is unwelcome if the
student did not request or invite it and ``regarded the conduct as
undesirable or offensive.'' \76\ Acquiescence in the conduct or the
failure to complain does not always mean that the conduct was
welcome.\77\ For example, a student may decide not to resist sexual
advances of another student or may not file a complaint out of fear.
In addition, a student may not object to a pattern of demeaning
comments directed at him or her by a group of students out of a
concern that objections might cause the harassers to make more
comments. The fact that a student may have accepted the conduct does
not mean that he or she welcomed it.\78\ Also, the fact that a
student willingly participated in conduct on one occasion does not
prevent him or her from indicating that the same conduct has become
unwelcome on a subsequent occasion. On the other hand, if a student
actively participates in sexual banter and discussions and gives no
indication that he or she objects, then the evidence generally will
not support a conclusion that the conduct was unwelcome.\79\
If younger children are involved, it may be necessary to
determine the degree to which they are able to recognize that
certain sexual conduct is conduct to which they can or should
reasonably object and the degree to which they can articulate an
objection. Accordingly, OCR will consider the age of the student,
the nature of the conduct involved, and other relevant factors in
determining whether a student had the capacity to welcome sexual
conduct.
Schools should be particularly concerned about the issue of
welcomeness if the harasser is in a position of authority. For
instance, because students may be encouraged to believe that a
teacher has absolute authority over the operation of his or her
classroom, a student may not object to a teacher's sexually
harassing comments during class; however, this does not necessarily
mean that the conduct was welcome. Instead, the student may believe
that any objections would be ineffective in stopping the harassment
or may fear that by making objections he or she will be singled out
for harassing comments or other retaliation.
In addition, OCR must consider particular issues of welcomeness
if the alleged harassment relates to alleged ``consensual'' sexual
relationships between a school's adult employees and its students.
If elementary students are involved, welcomeness will not be an
issue: OCR will never view sexual conduct between an adult school
employee and an elementary school student as consensual. In cases
involving secondary students, there will be a strong presumption
that sexual conduct between an adult school employee and a student
is not consensual. In cases involving older secondary students,
subject to the presumption,\80\ OCR will consider a number of
factors in determining whether a school employee's sexual advances
or other sexual conduct could be considered welcome.\81\ In
addition, OCR will consider these factors in all cases involving
postsecondary students in making those determinations.\82\ The
factors include the following:
The nature of the conduct and the relationship of the
school employee to the student, including the degree of influence
(which could, at least in part, be affected by the student's age),
authority, or control the employee has over the student.
Whether the student was legally or practically unable
to consent to the sexual conduct in question. For example, a
student's age could affect his or her ability to do so. Similarly,
certain types of disabilities could affect a student's ability to do
so.
If there is a dispute about whether harassment occurred or
whether it was welcome--in a case in which it is appropriate to
consider whether the conduct would be welcome--determinations should
be made based on the totality of the circumstances. The following
types of information may be helpful in resolving the dispute:
Statements by any witnesses to the alleged incident.
Evidence about the relative credibility of the
allegedly harassed student and the alleged harasser. For example,
the level of
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detail and consistency of each person's account should be compared
in an attempt to determine who is telling the truth. Another way to
assess credibility is to see if corroborative evidence is lacking
where it should logically exist. However, the absence of witnesses
may indicate only the unwillingness of others to step forward,
perhaps due to fear of the harasser or a desire not to get involved.
Evidence that the alleged harasser has been found to
have harassed others may support the credibility of the student
claiming the harassment; conversely, the student's claim will be
weakened if he or she has been found to have made false allegations
against other individuals.
Evidence of the allegedly harassed student's reaction
or behavior after the alleged harassment. For example, were there
witnesses who saw the student immediately after the alleged incident
who say that the student appeared to be upset? However, it is
important to note that some students may respond to harassment in
ways that do not manifest themselves right away, but may surface
several days or weeks after the harassment. For example, a student
may initially show no signs of having been harassed, but several
weeks after the harassment, there may be significant changes in the
student's behavior, including difficulty concentrating on academic
work, symptoms of depression, and a desire to avoid certain
individuals and places at school.
Evidence about whether the student claiming harassment
filed a complaint or took other action to protest the conduct soon
after the alleged incident occurred. However, failure to immediately
complain may merely reflect a fear of retaliation or a fear that the
complainant may not be believed rather than that the alleged
harassment did not occur.
Other contemporaneous evidence. For example, did the
student claiming harassment write about the conduct and his or her
reaction to it soon after it occurred (e.g., in a diary or letter)?
Did the student tell others (friends, parents) about the conduct
(and his or her reaction to it) soon after it occurred?
Recipient's Response. Once a school has notice of possible
sexual harassment of students--whether carried out by employees,
other students, or third parties--it should take immediate and
appropriate steps to investigate or otherwise determine what
occurred and take steps reasonably calculated to end any harassment,
eliminate a hostile environment if one has been created, and prevent
harassment from occurring again. These steps are the school's
responsibility whether or not the student who was harassed makes a
complaint or otherwise asks the school to take action.\83\ As
described in the next section, in appropriate circumstances the
school will also be responsible for taking steps to remedy the
effects of the harassment on the individual student or students who
were harassed. What constitutes a reasonable response to information
about possible sexual harassment will differ depending upon the
circumstances.
Response to Student or Parent Reports of Harassment; Response to
Direct Observation of Harassment by a Responsible Employee. If a
student or the parent of an elementary or secondary student provides
information or complains about sexual harassment of the student, the
school should initially discuss what actions the student or parent
is seeking in response to the harassment. The school should explain
the avenues for informal and formal action, including a description
of the grievance procedure that is available for sexual harassment
complaints and an explanation of how the procedure works. If a
responsible school employee has directly observed sexual harassment
of a student, the school should contact the student who was harassed
(or the parent, depending upon the age of the student),\84\ explain
that the school is responsible for taking steps to correct the
harassment, and provide the same information described in the
previous sentence.
Regardless of whether the student who was harassed, or his or
her parent, decides to file a formal complaint or otherwise request
action on the student's behalf (including in cases involving direct
observation by a responsible employee), the school must promptly
investigate to determine what occurred and then take appropriate
steps to resolve the situation. The specific steps in an
investigation will vary depending upon the nature of the
allegations, the source of the complaint, the age of the student or
students involved, the size and administrative structure of the
school, and other factors. However, in all cases the inquiry must be
prompt, thorough, and impartial. (Requests by the student who was
harassed for confidentiality or for no action to be taken,
responding to notice of harassment from other sources, and the
components of a prompt and equitable grievance procedure are
discussed in subsequent sections of this guidance.)
It may be appropriate for a school to take interim measures
during the investigation of a complaint. For instance, if a student
alleges that he or she has been sexually assaulted by another
student, the school may decide to place the students immediately in
separate classes or in different housing arrangements on a campus,
pending the results of the school's investigation. Similarly, if the
alleged harasser is a teacher, allowing the student to transfer to a
different class may be appropriate. In cases involving potential
criminal conduct, school personnel should determine whether
appropriate law enforcement authorities should be notified. In all
cases, schools should make every effort to prevent disclosure of the
names of all parties involved, except to the extent necessary to
carry out an investigation.
If a school determines that sexual harassment has occurred, it
should take reasonable, timely, age-appropriate, and effective
corrective action, including steps tailored to the specific
situation.\85\ Appropriate steps should be taken to end the
harassment. For example, school personnel may need to counsel, warn,
or take disciplinary action against the harasser, based on the
severity of the harassment or any record of prior incidents or
both.\86\ A series of escalating consequences may be necessary if
the initial steps are ineffective in stopping the harassment.\87\ In
some cases, it may be appropriate to further separate the harassed
student and the harasser, e.g., by changing housing arrangements
\88\ or directing the harasser to have no further contact with the
harassed student. Responsive measures of this type should be
designed to minimize, as much as possible, the burden on the student
who was harassed. If the alleged harasser is not a student or
employee of the recipient, OCR will consider the level of control
the school has over the harasser in determining what response would
be appropriate.\89\
Steps should also be taken to eliminate any hostile environment
that has been created. For example, if a female student has been
subjected to harassment by a group of other students in a class, the
school may need to deliver special training or other interventions
for that class to repair the educational environment. If the school
offers the student the option of withdrawing from a class in which a
hostile environment occurred, the school should assist the student
in making program or schedule changes and ensure that none of the
changes adversely affect the student's academic record. Other
measures may include, if appropriate, directing a harasser to
apologize to the harassed student. If a hostile environment has
affected an entire school or campus, an effective response may need
to include dissemination of information, the issuance of new policy
statements, or other steps that are designed to clearly communicate
the message that the school does not tolerate harassment and will be
responsive to any student who reports that conduct.
In some situations, a school may be required to provide other
services to the student who was harassed if necessary to address the
effects of the harassment on that student.\90\ For example, if an
instructor gives a student a low grade because the student failed to
respond to his sexual advances, as discussed in the section on
``Harassment by Teachers and Other Employees,'' the employee engaged
in the harassment in the context of providing aid, benefits, or
services to students. Because the school is responsible for the
discriminatory denial or limitation of a benefit to the student, the
school is responsible for taking appropriate corrective action,
including remedying the effects of the harassment on the victim.
Thus, the school may be required to make arrangements for an
independent reassessment of the student's work, if feasible, and
change the grade accordingly; make arrangements for the student to
take the course again with a different instructor; provide tutoring;
make tuition adjustments; offer reimbursement for professional
counseling; or take other measures that are appropriate to the
circumstances. As another example, if a school delays responding or
responds inappropriately to information about harassment, such as a
case in which the school ignores complaints by a student that he or
she is being sexually harassed by a classmate, the school will be
required to remedy the effects of the harassment that could have
been prevented had the school responded promptly and effectively.
Finally, a school should take steps to prevent any further
harassment \91\ and to
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prevent any retaliation against the student who made the complaint
(or was the subject of the harassment), against the person who filed
a complaint on behalf of a student, or against those who provided
information as witnesses.\92\ At a minimum, this includes making
sure that the harassed students and their parents know how to report
any subsequent problems and making follow-up inquiries to see if
there have been any new incidents or any retaliation. To prevent
recurrences, counseling for the harasser may be appropriate to
ensure that he or she understands what constitutes harassment and
the effects it can have. In addition, depending on how widespread
the harassment was and whether there have been any prior incidents,
the school may need to provide training for the larger school
community to ensure that students, parents, and teachers can
recognize harassment if it recurs and know how to respond.\93\
Requests by the Harassed Student for Confidentiality. The scope
of a reasonable response also may depend upon whether a student, or
parent of a minor student, reporting harassment asks that the
student's name not be disclosed to the harasser or that nothing be
done about the alleged harassment. In all cases, a school should
discuss confidentiality standards and concerns with the complainant
initially. The school should inform the student that the request may
limit the school's ability to respond. The school also should tell
the student that Title IX prohibits retaliation and that, if he or
she is afraid of reprisals from the alleged harasser, the school
will take steps to prevent retaliation and will take strong
responsive actions if retaliation occurs. If the student continues
to ask that his or her name not be revealed, the school should take
all reasonable steps to investigate and respond to the complaint
consistent with that request as long as doing so does not preclude
the school from responding effectively to the harassment and
preventing harassment of other students. Thus, for example, a
reasonable response would not require disciplinary action against an
alleged harasser if a student, who was the only student harassed,
insists that his or her name not be revealed, and the alleged
harasser could not respond to the charges of sexual harassment
without that information.
At the same time, a school should evaluate the confidentiality
request in the context of its responsibility to provide a safe and
nondiscriminatory environment for all students. The factors that a
school may consider in this regard include the seriousness of the
alleged harassment, the age of the student harassed, whether there
have been other complaints or reports of harassment against the
alleged harasser, and the rights of the accused individual to
receive information about the accuser and the allegations if a
formal proceeding with sanctions may result.\94\
Although a student's request to have his or her name withheld
may limit the school's ability to respond fully to an individual
complaint of harassment, other means may be available to address the
harassment. There are steps a recipient can take to limit the
effects of the alleged harassment and prevent its recurrence without
initiating formal action against the alleged harasser or revealing
the identity of the complainant. Examples include conducting sexual
harassment training for the school site or academic department where
the problem occurred, taking a student survey concerning any
problems with harassment, or implementing other systemic measures at
the site or department where the alleged harassment has occurred.
In addition, by investigating the complaint to the extent
possible--including by reporting it to the Title IX coordinator or
other responsible school employee designated pursuant to Title IX--
the school may learn about or be able to confirm a pattern of
harassment based on claims by different students that they were
harassed by the same individual. In some situations there may be
prior reports by former students who now might be willing to come
forward and be identified, thus providing a basis for further
corrective action. In instances affecting a number of students (for
example, a report from a student that an instructor has repeatedly
made sexually explicit remarks about his or her personal life in
front of an entire class), an individual can be put on notice of
allegations of harassing behavior and counseled appropriately
without revealing, even indirectly, the identity of the student who
notified the school. Those steps can be very effective in preventing
further harassment.
Response to Other Types of Notice. The previous two sections
deal with situations in which a student or parent of a student who
was harassed reports or complains of harassment or in which a
responsible school employee directly observes sexual harassment of a
student. If a school learns of harassment through other means, for
example, if information about harassment is received from a third
party (such as from a witness to an incident or an anonymous letter
or telephone call), different factors will affect the school's
response. These factors include the source and nature of the
information; the seriousness of the alleged incident; the
specificity of the information; the objectivity and credibility of
the source of the report; whether any individuals can be identified
who were subjected to the alleged harassment; and whether those
individuals want to pursue the matter. If, based on these factors,
it is reasonable for the school to investigate and it can confirm
the allegations, the considerations described in the previous
sections concerning interim measures and appropriate responsive
action will apply.
For example, if a parent visiting a school observes a student
repeatedly harassing a group of female students and reports this to
school officials, school personnel can speak with the female
students to confirm whether that conduct has occurred and whether
they view it as unwelcome. If the school determines that the conduct
created a hostile environment, it can take reasonable, age-
appropriate steps to address the situation. If on the other hand,
the students in this example were to ask that their names not be
disclosed or indicate that they do not want to pursue the matter,
the considerations described in the previous section related to
requests for confidentiality will shape the school's response.
In a contrasting example, a student newspaper at a large
university may print an anonymous letter claiming that a professor
is sexually harassing students in class on a daily basis, but the
letter provides no clue as to the identity of the professor or the
department in which the conduct is allegedly taking place. Due to
the anonymous source and lack of specificity of the information, a
school would not reasonably be able to investigate and confirm these
allegations. However, in response to the anonymous letter, the
school could submit a letter or article to the newspaper reiterating
its policy against sexual harassment, encouraging persons who
believe that they have been sexually harassed to come forward, and
explaining how its grievance procedures work.
Prevention. A policy specifically prohibiting sexual harassment
and separate grievance procedures for violations of that policy can
help ensure that all students and employees understand the nature of
sexual harassment and that the school will not tolerate it. Indeed,
they might even bring conduct of a sexual nature to the school's
attention so that the school can address it before it becomes
sufficiently serious as to create a hostile environment. Further,
training for administrators, teachers, and staff and age-appropriate
classroom information for students can help to ensure that they
understand what types of conduct can cause sexual harassment and
that they know how to respond.
Prompt and Equitable Grievance Procedures. Schools are required
by the Title IX regulations to adopt and publish a policy against
sex discrimination and grievance procedures providing for prompt and
equitable resolution of complaints of discrimination on the basis of
sex.\95\ Accordingly, regardless of whether harassment occurred, a
school violates this requirement of the Title IX regulations if it
does not have those procedures and policy in place.\96\
A school's sex discrimination grievance procedures must apply to
complaints of sex discrimination in the school's education programs
and activities filed by students against school employees, other
students, or third parties.\97\ Title IX does not require a school
to adopt a policy specifically prohibiting sexual harassment or to
provide separate grievance procedures for sexual harassment
complaints. However, its nondiscrimination policy and grievance
procedures for handling discrimination complaints must provide
effective means for preventing and responding to sexual harassment.
Thus, if, because of the lack of a policy or procedure specifically
addressing sexual harassment, students are unaware of what kind of
conduct constitutes sexual harassment or that such conduct is
prohibited sex discrimination, a school's general policy and
procedures relating to sex discrimination complaints will not be
considered effective.\98\
OCR has identified a number of elements in evaluating whether a
school's grievance procedures are prompt and equitable,
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including whether the procedures provide for--
Notice to students, parents of elementary and secondary
students, and employees of the procedure, including where complaints
may be filed;
Application of the procedure to complaints alleging
harassment carried out by employees, other students, or third
parties;
Adequate, reliable, and impartial investigation of
complaints, including the opportunity to present witnesses and other
evidence;
Designated and reasonably prompt timeframes for the
major stages of the complaint process;
Notice to the parties of the outcome of the complaint;
\99\ and
An assurance that the school will take steps to prevent
recurrence of any harassment and to correct its discriminatory
effects on the complainant and others, if appropriate.\100\
Many schools also provide an opportunity to appeal the findings
or remedy or both. In addition, because retaliation is prohibited by
Title IX, schools may want to include a provision in their
procedures prohibiting retaliation against any individual who files
a complaint or participates in a harassment inquiry.
Procedures adopted by schools will vary considerably in detail,
specificity, and components, reflecting differences in audiences,
school sizes and administrative structures, State or local legal
requirements, and past experience. In addition, whether complaint
resolutions are timely will vary depending on the complexity of the
investigation and the severity and extent of the harassment. During
the investigation it is a good practice for schools to inform
students who have alleged harassment about the status of the
investigation on a periodic basis.
A grievance procedure applicable to sexual harassment complaints
cannot be prompt or equitable unless students know it exists, how it
works, and how to file a complaint. Thus, the procedures should be
written in language appropriate to the age of the school's students,
easily understood, and widely disseminated. Distributing the
procedures to administrators, or including them in the school's
administrative or policy manual, may not by itself be an effective
way of providing notice, as these publications are usually not
widely circulated to and understood by all members of the school
community. Many schools ensure adequate notice to students by having
copies of the procedures available at various locations throughout
the school or campus; publishing the procedures as a separate
document; including a summary of the procedures in major
publications issued by the school, such as handbooks and catalogs
for students, parents of elementary and secondary students, faculty,
and staff; and identifying individuals who can explain how the
procedures work.
A school must designate at least one employee to coordinate its
efforts to comply with and carry out its Title IX
responsibilities.\101\ The school must notify all of its students
and employees of the name, office address, and telephone number of
the employee or employees designated.\102\ Because it is possible
that an employee designated to handle Title IX complaints may
himself or herself engage in harassment, a school may want to
designate more than one employee to be responsible for handling
complaints in order to ensure that students have an effective means
of reporting harassment.\103\ While a school may choose to have a
number of employees responsible for Title IX matters, it is also
advisable to give one official responsibility for overall
coordination and oversight of all sexual harassment complaints to
ensure consistent practices and standards in handling complaints.
Coordination of recordkeeping (for instance, in a confidential log
maintained by the Title IX coordinator) will also ensure that the
school can and will resolve recurring problems and identify students
or employees who have multiple complaints filed against them.\104\
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.\105\
Grievance procedures may include informal mechanisms for
resolving sexual harassment complaints to be used if the parties
agree to do so.\106\ OCR has frequently advised schools, however,
that it is not appropriate for a student who is complaining of
harassment to be required to work out the problem directly with the
individual alleged to be harassing him or her, and certainly not
without appropriate involvement by the school (e.g., participation
by a counselor, trained mediator, or, if appropriate, a teacher or
administrator). In addition, the complainant must be notified of the
right to end the informal process at any time and begin the formal
stage of the complaint process. In some cases, such as alleged
sexual assaults, mediation will not be appropriate even on a
voluntary basis. Title IX also permits the use of a student
disciplinary procedure not designed specifically for Title IX
grievances to resolve sex discrimination complaints, as long as the
procedure meets the requirement of affording a complainant a
``prompt and equitable'' resolution of the complaint.
In some instances, a complainant may allege harassing conduct
that constitutes both sex discrimination and possible criminal
conduct. Police investigations or reports may be useful in terms of
fact-gathering. However, because legal standards for criminal
investigations are different, police investigations or reports may
not be determinative of whether harassment occurred under Title IX
and do not relieve the school of its duty to respond promptly.\107\
Similarly, schools are cautioned about using the results of
insurance company investigations of sexual harassment allegations.
The purpose of an insurance investigation is to assess liability
under the insurance policy, and the applicable standards may well be
different from those under Title IX. In addition, a school is not
relieved of its responsibility to respond to a sexual harassment
complaint filed under its grievance procedure by the fact that a
complaint has been filed with OCR.\108\
Finally, a public school's employees may have certain due
process rights under the United States Constitution. The
Constitution also guarantees due process to students in public and
State-supported schools who are accused of certain types of
infractions. The rights established under Title IX must be
interpreted consistently with any federally guaranteed rights
involved in a complaint proceeding. In both public and private
schools, additional or separate rights may be created for employees
or students by State law, institutional regulations and policies,
such as faculty or student handbooks, and collective bargaining
agreements. Schools should be aware of these rights and their legal
responsibilities to those accused of harassment. Indeed, procedures
that ensure the Title IX rights of the complainant, while at the
same time according due process to both parties involved, will lead
to sound and supportable decisions. Schools should ensure that steps
to accord due process rights do not restrict or unnecessarily delay
the protections provided by Title IX to the complainant.
First Amendment. In cases of alleged harassment, the protections
of the First Amendment must be considered if issues of speech or
expression are involved.\109\ Free speech rights apply in the
classroom (e.g., classroom lectures and discussions)\110\ 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 \111\; and student newspapers, journals,
and other publications \112\). In addition, First Amendment rights
apply to the speech of students and teachers.\113\
Title IX is intended to protect students from sex
discrimination, not to regulate the content of speech. OCR
recognizes that the offensiveness of a particular expression as
perceived by some students, standing alone, is not a legally
sufficient basis to establish a sexually hostile environment under
Title IX.\114\ In order to establish a violation of Title IX, the
harassment must be sufficiently serious to deny or limit a student's
ability to participate in or benefit from the education
program.\115\
Moreover, in regulating the conduct of its students and its
faculty to prevent or redress discrimination prohibited by Title IX
(e.g., in responding to harassment that is sufficiently serious as
to create a hostile environment), a school must formulate,
interpret, and apply its rules so as to protect academic freedom and
free speech rights. For instance, while the First Amendment may
prohibit a school from restricting the right of students to express
opinions about one sex that may be considered derogatory, the school
can take steps to denounce those opinions and ensure that competing
views are heard. The age of the students involved and the location
or forum may affect how the school can respond consistently with the
First Amendment.\116\ As an example of the application of free
speech rights to allegations of sexual harassment, consider the
following:
Example 1: In a college level creative writing class, a