Archived: Revised Sexual Harassment Guidance

REVISED SEXUAL HARASSMENT GUIDANCE:
HARASSMENT OF STUDENTS
BY SCHOOL EMPLOYEES, OTHER STUDENTS, OR THIRD PARTIES

The Assistant Secretary for Civil Rights, U.S. Department of Education (Department), issues a new document (revised guidance) that replaces 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 revised the guidance in limited respects in light of subsequent Supreme Court cases relating to sexual harassment in schools.

The revised guidance reaffirms the compliance standards that OCR applies in investigations and administrative enforcement of Title IX of the Education Amendments of 1972 (Title IX) regarding sexual harassment.? The revised guidance re-grounds these standards in the Title IX regulations, distinguishing them from the standards applicable to private litigation for money damages and clarifying their regulatory basis as distinct from Title VII of the Civil Rights Act of 1964 (Title VII) agency law.? In most other respects the revised guidance is identical to the 1997 guidance.? Thus, we intend the revised guidance to serve the same purpose as the 1997 guidance.? It continues to provide the principles that a school[1] should use to recognize and effectively respond to sexual harassment of students in its program as a condition of receiving Federal financial assistance.

Purpose and Scope of the Revised Guidance

In March 1997, we published in the Federal Register ?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 covered by Title IX.? The guidance was the product of extensive consultation with interested parties, including students, teachers, school administrators, and researchers.? We also made the document available for public comment.

Since the issuance of the 1997 guidance, the Supreme Court (Court) has issued several important decisions in sexual harassment cases, including two decisions specifically addressing sexual harassment of students under Title IX:? 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). 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 school?s program and the conditions of Gebser are met.

The Court was explicit in Gebser and Davis that the liability standards established in those 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.

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 a school?s obligations to take reasonable steps under Title IX and the regulations to prevent and eliminate sexual harassment as a condition of its receipt of Federal funding.? The Department also determined that, although in most important respects the substance of the 1997 guidance was reaffirmed in Gebser and Davis, certain areas of the 1997 guidance could be strengthened by further clarification and explanation of the Title IX regulatory basis for the guidance.

On November 2, 2000, we published in the Federal Register a notice requesting comments on the proposed revised guidance (62 FR 66092).? A detailed explanation of the Gebser and Davis decisions, and an explanation of the proposed changes in the guidance, can be found in the preamble to the proposed revised guidance.? In those decisions and a third opinion, Oncale v. Sundowner Offshore Services, Inc. (Oncale), 523 U.S. 75 (1998) (a sexual harassment case decided under Title VII), the Supreme Court confirmed several fundamental principles we articulated in the 1997 guidance.? In these areas, no changes in the guidance were necessary.?

A notice regarding the availability of this final document appeared in the Federal Register on January 19, 2001.

It continues to be the case that 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 ensuring a safe environment in which students can learn.? As with the 1997 guidance, the revised guidance applies to students at every level of education.? School personnel who understand their obligations under Title IX, e.g., understand that sexual harassment can be sex discrimination in violation of Title IX, are in the best position to prevent harassment and to lessen the harm to students if, despite their best efforts, harassment occurs.

One of the fundamental aims of both the 1997 guidance and the revised guidance has been to emphasize 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.?

A critical issue under Title IX is whether the school recognized that sexual harassment has occurred and took prompt and effective action calculated to end the harassment, prevent its recurrence, and, as appropriate, remedy its effects.? 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 to hesitate to respond to sexual harassment in the same reasonable, commonsense manner as they would to other types of serious misconduct.

It is also important that schools not overreact to behavior that does not rise to the level of sexual harassment.? As the Department stated in the 1997 guidance, a kiss on the cheek by a first grader does not constitute sexual harassment.? School personnel should consider the age and maturity of students in responding to allegations of sexual harassment.

Finally, we reiterate the importance of having well- publicized and effective grievance procedures in place to handle complaints of sex discrimination, including sexual harassment complaints.? Nondiscrimination policies and procedures are required by the Title IX regulations.? In fact, the Supreme Court in Gebser 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 to let students and employees know that sexual harassment will not be tolerated and to ensure that they know how to report it.

Analysis of Comments Received Concerning the Proposed Revised Guidance and the Resulting Changes

In response to the Assistant Secretary?s invitation to comment, OCR received approximately 11 comments representing approximately 15 organizations and individuals.? Commenters provided specific suggestions regarding how the revised guidance could be clarified.? Many of these suggested changes have been incorporated.? Significant and recurring issues are grouped by subject and discussed in the following sections:?

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 or on behalf of a student who has been sexually harassed.? As explained in the preamble to the proposed revised guidance, 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. At 283, and Davis, 526 U.S. At 639.? The Gebser Court recognized and contrasted lawsuits for money damages with the incremental nature of administrative enforcement of Title IX.? In Gebser, the Court was concerned with the possibility of a money damages award against a school for harassment about which it had not known.? In contrast, the process of administrative enforcement requires enforcement agencies such as OCR to make schools aware of potential Title IX violations and to seek voluntary corrective action before pursuing fund termination or other enforcement mechanisms.

Commenters uniformly agreed with OCR that the Court limited the liability standards established in Gebser and Davis to private actions for monetary damages. See, e.g., Gebser, 524 U.S. 283, and Davis, 526 U.S. At 639.? Commenters also agreed that the administrative enforcement standards reflected in the 1997 guidance remain valid in OCR enforcement actions.[2]? Finally, commenters agreed that the proposed revisions provided important clarification to schools regarding the standards that OCR will use and that schools should use to determine compliance with Title IX as a condition of the receipt of Federal financial assistance in light of Gebser and Davis.

Most commenters agreed with OCR?s interpretation of its regulations regarding a school?s responsibility for harassment of students by teachers and other school employees.? These commenters agreed that Title IX?s prohibitions against discrimination are not limited to official policies and practices governing school programs and activities.? A school also engages in sex-based discrimination if its employees, in the context of carrying out their day-to-day job responsibilities for providing aid, benefits, or services to students (such as teaching, counseling, supervising, and advising students) deny or limit a student?s ability to participate in or benefit from the schools program on the basis of sex.? Under the Title IX regulations, the school is responsible for discrimination in these cases, whether or not it knew or should have known about it, because the discrimination occurred as part of the school?s undertaking to provide nondiscriminatory aid, benefits, and services to students.? The revised guidance distinguishes these cases from employee harassment that, although taking place in a school?s program, occurs outside of the context of the employee?s provision of aid, benefits, and services to students.? In these latter cases, the school?s responsibilities are not triggered until the school knew or should have known about the harassment.

One commenter expressed concern that it was inappropriate ever to find a school out of compliance for harassment about which it knew nothing.? We reiterate that, although a school may in some cases be responsible for harassment caused by an employee that occurred before other responsible employees of the school knew or should have known about it, OCR always provides the school with actual notice and the opportunity to take appropriate corrective action before issuing a finding of violation.? This is consistent with the Court?s underlying concern in Gebser and Davis.

Most commenters acknowledged that OCR has provided useful factors to determine whether harassing conduct took place ?in the context of providing aid, benefits, or services.?? However, some commenters stated that additional clarity and examples regarding the issue were needed. Commenters also suggested clarifying references to quid pro quo and hostile environment harassment as these two concepts, though useful, do not determine the issue of whether the school itself is considered responsible for the harassment.? We agree with these concerns and have made significant revisions to the sections ?Harassment that Denies or Limits a Student?s Ability to Participate in or Benefit from the Education Program? and ?Harassment by Teachers and Other Employees? to clarify the guidance in these respects.?

Several commenters requested that we expand the discussion and include examples of gender-based harassment predicated on sex stereotyping.? Some commenters also argued that gender-based harassment should be considered sexual harassment, and that we have ?artificially? restricted the guidance only to harassment in the form of conduct of a sexual nature, thus, implying that gender-based harassment is of less concern and should be evaluated differently.

We have not further expanded this section because, while we are also concerned with the important issue of gender-based harassment, we believe that harassment of a sexual nature raises unique and sufficiently important issues that distinguish it from other types of gender-based harassment and warrants its own guidance.?

Nevertheless, we have clarified this section of the guidance in several ways.? The guidance clarifies that gender-based harassment, including that predicated on sex-stereotyping, is covered by Title IX if it is sufficiently serious to deny or limit a student?s ability to participate in or benefit from the program.? Thus, it can be discrimination on the basis of sex to harass a student on the basis of the victim?s failure to conform to stereotyped notions of masculinity and femininity. Although this type of harassment is not covered by the guidance, if it is sufficiently serious, gender-based harassment is a school?s responsibility, and the same standards generally will apply. We have also added an endnote regarding Supreme Court precedent for the proposition that sex stereotyping can constitute sex discrimination.?

Several commenters also suggested that we state that sexual and non-sexual (but gender-based) harassment should not be evaluated separately in determining whether a hostile environment exists.? We note that both the proposed revised guidance and the final revised guidance indicate in several places that incidents of sexual harassment and non-sexual, gender-based harassment can be combined to determine whether a hostile environment has been created.? We also note that sufficiently serious harassment of a sexual nature remains covered by Title IX, as explained in the guidance, even though the hostile environment may also include taunts based on sexual orientation.

One commenter urged OCR to provide distinct definitions of sexual harassment to be used in administrative enforcement as distinguished from criteria used to maintain private actions for monetary damages.? We disagree.? First, as discussed in the preamble to the proposed revised guidance, the definition of hostile environment sexual harassment used by the Court in Davis is consistent with the definition found in the proposed guidance. 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.? ?Both the Court?s and the Department?s definitions are contextual descriptions 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.? In determining whether harassment is actionable, both Davis and the Department tell schools to look at the ?constellation of surrounding circumstances, expectations, and relationships? (526 U.S. At 651 (citing Oncale)), and the Davis Court cited approvingly to the underlying core factors described in the 1997 guidance for evaluating the context of the harassment. Second, schools benefit from consistency and simplicity in understanding what is sexual harassment for which the school must take responsive action.? A multiplicity of definitions would not serve this purpose.

Several commenters suggested that we develop a unique Title IX definition of harassment that does not rely on Title VII and that takes into account the special relationship of schools to students.? Other commenters, by contrast, commended OCR for recognizing that Gebser and Davis did not alter the definition of hostile environment sexual harassment found in OCR?s 1997 guidance, which derives from Title VII caselaw, and asked us to strengthen the point.? While Gebser and Davis made clear that Title VII agency principles do not apply in determining liability for money damages under Title IX, the Davis Court also indicated, through its specific references to Title VII caselaw, that Title VII remains relevant in determining what constitutes hostile environment sexual harassment under Title IX. We also believe that the factors described in both the 1997 guidance and the revised guidance to determine whether sexual harassment has occurred provide the necessary flexibility for taking into consideration the age and maturity of the students involved and the nature of the school environment.

One commenter suggested that the change in the guidance from ?appropriate response? to ?effective response? implies a change in OCR policy that requires omniscience of schools.? We disagree.? Effectiveness has always been the measure of an adequate response under Title IX.? This does not mean a school must overreact out of fear of being judged inadequate.? Effectiveness is measured based on a reasonableness standard.? Schools do not have to know beforehand that their response will be effective.? However, if their initial steps are ineffective in stopping the harassment, reasonableness may require a series of escalating steps.

In the development of both the 1997 guidance and the current revisions to the guidance, commenters raised concerns about the interrelation of the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g, and Title IX.? The concerns relate to two issues: (1) the harassed student?s right to information about the outcome of a sexual harassment complaint against another student, including information about sanctions imposed on a student found guilty of harassment; and (2) the due process rights of individuals, including teachers, accused of sexual harassment by a student, to obtain information about the identity of the complainant and the nature of the allegations.

FERPA generally forbids disclosure of information from a student?s ?education record? without the consent of the student (or the student?s parent).? Thus, FERPA may be relevant when the person found to have engaged in harassment is another student, because written information about the complaint, investigation, and outcome is part of the harassing student?s education record.? Title IX is also relevant because it is an important part of taking effective responsive action for the school to inform the harassed student of the results of its investigation and whether it counseled, disciplined, or otherwise sanctioned the harasser.? This information can assure the harassed student that the school has taken the student?s complaint seriously and has taken steps to eliminate the hostile environment and prevent the harassment from recurring.

The Department currently interprets FERPA as not conflicting with the Title IX requirement that the school notify the harassed student of the outcome of its investigation, i.e., whether or not harassment was found to have occurred, because this information directly relates to the victim.? It has been the Department?s position that there is a potential conflict between FERPA and Title IX regarding disclosure of sanctions, and that FERPA generally prevents 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.[3]

There is, however, an additional statutory provision that may apply to this situation.? In 1994, as part of the Improving America?s Schools Act, Congress amended the General Education Provisions Act (GEPA) ‑? of which FERPA is a part ‑? to state that nothing in GEPA ?shall be construed to affect the applicability of ... title IX of the Education Amendments of 1972....?[4]? The Department interprets this provision to mean that FERPA continues to apply in the context of Title IX enforcement, but if there is a direct conflict between requirements of FERPA and requirements of Title IX, such that enforcement of FERPA would interfere with the primary purpose of Title IX to eliminate sex-based discrimination in schools, the requirements of Title IX override any conflicting FERPA provisions.? The Department is in the process of developing a consistent approach and specific factors for implementing this provision.? OCR and the Department?s Family Policy Compliance Office (FPCO) intend to issue joint guidance, discussing specific areas of potential conflict between FERPA and Title IX.

FERPA is also relevant when a student accuses a teacher or other employee of sexual harassment, because written information about the allegations is contained in the student?s education record.? The potential conflict arises because, while FERPA protects the privacy of the student accuser, the accused individual may need the name of the accuser and information regarding the nature of the allegations in order to defend against the charges.? The 1997 guidance made clear that neither FERPA nor Title IX override any federally protected due process rights of a school employee accused of sexual harassment.

Several commenters urged the Department to expand and strengthen this discussion.? They argue that in many instances a school?s failure to provide information about the name of the student accuser and the nature of the allegations seriously undermines the fairness of the investigative and adjudicative process.? They also urge the Department to include a discussion of the need for confidentiality as to the identity of the individual accused of harassment because of the significant harm that can be caused by false accusations.? We have made several changes to the guidance, including an additional discussion regarding the confidentiality of a person accused of harassment and a new heading entitled ?Due Process Rights of the Accused,? to address these concerns.?

[1] As in the 1997 guidance, the revised guidance uses the term ?school? to refer to all schools, colleges, universities, and other educational institutions that receive Federal funds from the Department.

[2] It is the position of the United States 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.

[3] Exceptions include the case of a sanction that directly relates to the person who was harassed (e.g., an order that the harasser stay away from the harassed student), or sanctions related to offenses for which there is a statutory exception, such as crimes of violence or certain sex offenses in postsecondary institutions.

[4] 20 U.S.C. 1221(d).? A similar amendment was originally passed in 1974 but applied only to Title VI of the Civil Rights Act of 1964 (prohibiting race discrimination by recipients).? The 1994 amendments also extended 20 U.S.C. 1221(d) to Section 504 of the Rehabilitation Act of 1973 (prohibiting disability-based discrimination by recipients) and to the Age Discrimination Act.

REVISED SEXUAL HARASSMENT GUIDANCE: HARASSMENT OF STUDENTS[1]
BY SCHOOL EMPLOYEES, OTHER STUDENTS, OR THIRD PARTIES

Title IX of the Education Amendments of 1972 (Title IX) and the Department of Education?s (Department) implementing regulations prohibit discrimination on the basis of sex in federally assisted education programs and activities.[2]? The Supreme Court, Congress, and Federal executive departments and agencies, including the Department, have recognized that sexual harassment of students can constitute discrimination prohibited by Title IX.[3]? This guidance focuses on a school?s[4] 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.? It 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 address it effectively if it does occur.[5]

Sexual harassment is unwelcome conduct of a sexual nature.? Sexual harassment can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.[6]? Sexual harassment of a student 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.? Sexual harassment of students is, therefore, a form of sex discrimination prohibited by Title IX under the circumstances described in this guidance.

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.[7]? 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.

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.[8]? 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.

A student may be sexually harassed by a school employee,[9] 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[10] 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.[11]? An example would be a campaign of sexually explicit graffiti directed at a particular girl by other girls.[12]

Although Title IX does not prohibit discrimination on the basis of sexual orientation,[13] sexual harassment directed at gay or lesbian students that is sufficiently serious to limit or deny a student?s ability to participate in or benefit from the school?s program constitutes sexual harassment prohibited by Title IX under the circumstances described in this guidance.[14]? For example, if a male student or a group of male students target a gay student for physical sexual advances, serious enough to deny or limit the victim?s ability to participate in or benefit from the school?s program, the school would need to respond promptly and effectively, as described in this guidance, just as it would if the victim were heterosexual.? On the other hand, 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 conduct of a sexual nature, their actions would not be sexual harassment covered by Title IX.[15]

Though beyond the scope of this guidance, gender-based harassment, which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping,[16] but not involving conduct of a sexual nature, is also a form of sex discrimination to which a school must respond, if it rises to a level that denies or limits a student?s ability to participate in or benefit from the educational program.[17]? 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. A school must respond to such harassment in accordance with the standards and procedures described in this guidance.[18] 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 harassment alone would be sufficient to do so.[19]

IV. 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.[20]

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.[21]

The regulations set out the basic Title IX responsibilities a recipient undertakes when it accepts Federal financial assistance, including the following specific obligations.[22]? 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;[23]

For the purposes of brevity and clarity, this 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.[29]

In addition, the regulations establish procedural requirements that are important for the prevention or correction of sex discrimination, including sexual harassment.? These requirements include issuance of a policy against sex discrimination[30] and adoption and publication of grievance procedures providing for prompt and equitable resolution of complaints of sex discrimination.[31]? 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.[32]

To comply with 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.

In assessing sexually harassing conduct, it is important for schools to recognize that two distinct issues are considered.? The first issue is whether, considering the types of harassment discussed in the following section, the conduct denies or limits a student?s ability to participate in or benefit from the program based on sex.? If it does, the second issue is the nature of the school?s responsibility to address that conduct.? As discussed in a following section, this issue depends in part on the identity of the harasser and the context in which the harassment occurred.

This guidance moves away from specific labels for types of sexual harassment.[33]? In each case, the issue is whether the harassment rises to a level that it denies or limits a student?s ability to participate in or benefit from the school?s program based on sex. However, an understanding of the different types of sexual harassment can help schools determine whether or not harassment has occurred that triggers a school?s responsibilities under, or violates, Title IX or its regulations.?

The type of harassment traditionally referred to as quid pro quo harassment occurs if a teacher or other employee conditions an educational decision or benefit on the student?s submission to unwelcome sexual conduct.[34]? Whether the student resists and suffers the threatened harm or submits and 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, on the basis of sex in violation of the Title IX regulations.[35]

By contrast, sexual harassment can occur that does not explicitly or implicitly condition a decision or benefit on submission to sexual conduct.? Harassment of this type is generally referred to as hostile environment harassment.[36]? This type of harassing conduct requires a further assessment of whether or not the conduct is sufficiently serious to deny or limit a student?s ability to participate in or benefit from the school?s program based on sex.[37]?

Teachers and other employees can engage in either type of harassment.? Students and third parties are not generally given responsibility over other students and, thus, generally can only engage in hostile environment harassment.

As outlined in the following paragraphs, OCR considers a variety of related factors to determine if a hostile environment has been created, i.e., if sexually harassing conduct by an employee, another student, or 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.? OCR considers the conduct from both a subjective[38] and objective[39] 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.?[40]? 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:

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.

The section entitled ?Sexual Harassment? explains that 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.?[53]? Acquiescence in the conduct or the failure to complain does not always mean that the conduct was welcome.[54]? 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.[55]? 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.[56]

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,[57] OCR will consider a number of factors in determining whether a school employee?s sexual advances or other sexual conduct could be considered welcome.[58]? In addition, OCR will consider these factors in all cases involving postsecondary students in making those determinations.[59]? The factors include the following:

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:

A school has a responsibility to respond promptly and effectively to sexual harassment. In the case of harassment by teachers or other employees, the nature of this responsibility depends in part on whether the harassment occurred in the context of the employee?s provision of aid, benefits, or services to students.

Sexual harassment of a student by a teacher or other school employee can be discrimination in violation of Title IX.[60]? Schools are responsible for taking prompt and effective action to stop the harassment and prevent its recurrence.? A school also may be responsible for remedying the effects of the harassment on the student who was harassed.? The extent of a recipient?s responsibilities if an employee sexually harasses a student is determined by whether or not the harassment occurred in the context of the employee?s provision of aid, benefits, or services to students.

A recipient is responsible under the Title IX regulations for the nondiscriminatory provision of aid, benefits, and services to students.? Recipients generally provide aid, benefits, and services to students through the responsibilities they give to employees.? If an employee who is acting (or who reasonably appears to be acting) in the context of carrying out these responsibilities over students engages in sexual harassment ? generally this means harassment that is carried out during an employee?s performance of his or her responsibilities in relation to students, including teaching, counseling, supervising, advising, and transporting students ? and the harassment denies or limits a student?s ability to participate in or benefit from a school program on the basis of sex,[61] the recipient is responsible for the discriminatory conduct.[62]? The recipient is, therefore, also responsible for remedying any effects of the harassment on the victim, as well as for ending the harassment and preventing its recurrence.? This is true whether or not the recipient has ?notice? of the harassment.? (As explained in the section on ?Notice of Employee, Peer, or Third Party Harassment,? for 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.)? Of course, under OCR?s administrative enforcement, recipients always receive actual notice and the opportunity to take appropriate corrective action before any finding of violation or possible loss of federal funds.

Whether or not sexual harassment of a student occurred within the context of an employee?s responsibilities for providing aid, benefits, or services is determined on a case-by-case basis, taking into account a variety of factors.? If an employee conditions the provision of an aid, benefit, or service that the employee is responsible for providing on a student?s submission to sexual conduct, i.e., conduct traditionally referred to as quid pro quo harassment, the harassment is clearly taking place in the context of the employee?s responsibilities to provide aid, benefits, or services.? In other situations, i.e., when an employee has created a hostile environment, OCR will consider the following factors in determining whether or not the harassment has taken place in this context, including:

These factors are applicable to all recipient educational institutions, including elementary and secondary schools, colleges, and universities.? Elementary and secondary schools, however, are typically run in a way that gives teachers, school officials, and other school employees a substantial degree of supervision, control, and disciplinary authority over the conduct of students.[63]? Therefore, in cases involving allegations of harassment of? elementary and secondary school-age students by a teacher or school administrator during any school activity,[64] 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.

For example, a teacher sexually harasses 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 designated as a hall 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.? Thus, OCR would consider this an example of conduct that is occurring in the context of the employee?s responsibilities to provide aid, benefits, or services.

Other examples of sexual harassment of a student occurring in the context of an employee?s responsibilities for providing aid, benefits, or services include, but are not limited to -- a faculty member at a university?s medical school conditions an intern?s evaluation on submission to his sexual advances and then gives her a poor evaluation for rejecting the advances; a high school drama instructor does not give a student a part in a play because she has not responded to sexual overtures from the instructor; a faculty member withdraws approval of research funds for her assistant because he has rebuffed her advances; a journalism professor who supervises a college newspaper continually and inappropriately touches a student editor in a sexual manner, causing the student to resign from the newspaper staff; and a teacher repeatedly asks a ninth grade student to stay after class and attempts to engage her in discussions about sex and her personal experiences while they are alone in the classroom, causing the student to stop coming to class.? In each of these cases, the school is responsible for the discriminatory conduct, including taking prompt and effective action to end the harassment, prevent it from recurring, and remedy the effects of the harassment on the victim.

Sometimes harassment of a student by an employee in the school?s program does not take place in the context of the employee?s provision of aid, benefits, or services, but nevertheless is sufficiently serious to create a hostile educational environment.? An example of this conduct might occur if a faculty member in the history department at a university, over the course of several weeks, repeatedly touches and makes sexually suggestive remarks to a graduate engineering student while waiting at a stop for the university shuttle bus, riding on the bus, and upon exiting the bus.? As a result, the student stops using the campus shuttle and walks the very long distances between her classes.? In this case, the school is not directly responsible for the harassing conduct because it did not occur in the context of the employee?s responsibilities for the provision of aid, benefits, or services to students.? However, the conduct is sufficiently serious to deny or limit the student in her ability to participate in or benefit from the recipient?s program.? Thus, the school has a duty, upon notice of the harassment,[65] to take prompt and effective action to stop the harassment and prevent its recurrence.?

If the school takes these steps, it has avoided violating Title IX.? If the school fails to take the necessary steps, however, its 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.? The school, therefore, has engaged in its own discrimination.? It then becomes responsible, not just for stopping the conduct and preventing it from happening again, but for remedying the effects of the harassment on the student that could reasonably have been prevented if the school had responded promptly and effectively.? (For related issues, see the sections on ?OCR Case Resolution? and ?Recipient?s Response.?)

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[66] about the harassment, the school is responsible for taking immediate effective action to eliminate the hostile environment and prevent its recurrence.[67]? 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 inaction 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.[68]? In this case, the school is responsible for taking effective corrective actions to stop the harassment, prevent its recurrence, and remedy the effects on the victim that could reasonably have been prevented had it responded promptly and effectively.

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 to deny or limit 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[69] 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.[70]? 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 the section on ?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.[71]? In this case, the school is responsible for taking corrective actions to stop the harassment, prevent its recurrence, and remedy the effects on the victim that could reasonably have been prevented had the school responded promptly and effectively.

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 the school otherwise had notice of the harassment.? 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.[72]

A school has notice if a responsible employee ?knew, or in the exercise of reasonable care should have known,? about the harassment.[73]? 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.[74]? Accordingly, schools need to ensure that employees are trained so that those 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[75] or complained to a teacher or other responsible employee about fellow students harassing him or her.? A student, parent, or other individual may have contacted other appropriate personnel, such as a principal, campus security, bus driver, teacher, 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 about which it reasonably should have known, i.e., if it would have learned of the harassment if it had exercised reasonable care or made a ?reasonably diligent inquiry.?[76]

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.[77]? 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.)[78]

If a school otherwise knows or reasonably should know of a hostile environment and fails to take prompt 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.

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.[79]? (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 disseminated policy and procedure, a student does not know either of the school?s policy against and 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,[80] 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 that could reasonably have been prevented if the school?s failure to comply with the procedural requirements had not hampered early notification.

VI. 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 disseminated policy prohibiting sex discrimination under Title IX[81] and effective grievance procedures;[82] (2) the school appropriately investigated or otherwise responded to allegations of sexual harassment;[83] 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.[84]? (Issues related to appropriate investigative and corrective actions are discussed in detail in the section on ?Recipient?s Response.?)

If the school has taken, or agrees to take, 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.[85]? 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.

VII. 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 prompt and effective 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.[86]? 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.

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),[87] 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 -? the complainant, the witnesses, and the accused -- 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.[88]? 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.[89]? A series of escalating consequences may be necessary if the initial steps are ineffective in stopping the harassment.[90]? In some cases, it may be appropriate to further separate the harassed student and the harasser, e.g., by changing housing arrangements[91] 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.[92]

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.[93]? For example, if an instructor gives a student a low grade because the student failed to respond to his sexual advances, 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[94] and to 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.[95]? 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.[96]

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 a confidentiality 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 the student?s request as long as doing so does not prevent the school from responding effectively to the harassment and preventing harassment of other students.

OCR enforces Title IX consistent with the federally protected due process rights of public school students and employees.? Thus, for example, 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, in evaluating the school?s response, OCR would not expect disciplinary action against an alleged harasser.

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.[97]

Similarly, a school should be aware of the confidentiality concerns of an accused employee or student.? Publicized accusations of sexual harassment, if ultimately found to be false, may nevertheless irreparably damage the reputation of the accused.? The accused individual?s need for confidentiality must, of course, also be evaluated based on the factors discussed in the preceding paragraph in the context of the school?s responsibility to ensure a safe environment for students.

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.

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

Purpose and Scope of the Revised Guidance

IV. Title IX Regulatory Compliance Responsibilities

B. Nature of the School?s Responsibility to Address Sexual Harassment

C. Notice of Employee, Peer, or Third Party Harassment

VI. OCR Case Resolution

VII. Recipient?s Response