**Rescinded: This document has been formally rescinded by the Department and remains available on the web for historical purposes only.**

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

# **TITLE IX**

 

###  January 19, 2001 

Preamble

Guidance

PDF

**PREAMBLE**

**Summary**

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 schools 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. 

**Enduring Principles from the 1997 Guidance**

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: 

**Distinction Between Administrative Enforcement and Private Litigation    for Monetary Damages**

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. 

**Harassment by Teachers and Other School Personnel**

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. 

**Gender-based Harassment, Including Harassment Predicated on Sex-stereotyping**

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. 

**Definition of Harassment**

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. 

**Effective Response**

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. 

**The Relationship Between FERPA and Title IX**

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. 

**Footnotes**

[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**

**Outline of Contents**

I. Introduction 

II. Sexual Harassment 

III. Applicability of Title IX 

IV. Title IX Regulatory Compliance Responsibilities 

V. Determining a School's Responsibilities 

A. Harassment that Denies or Limits a Student's Ability  to Participate in or Benefit from the Education Program 

1. Factors Used to Evaluate Hostile Environment Sexual  Harassment 

2. Welcomeness 

B. Nature of a School's Responsibility to Address Sexual  Harassment 

1. Harassment by Teachers and Other Employees 

2. Harassment by Other Students or Third Parties 

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

D. The Role of Grievance Procedures 

VI. OCR Case Resolution 

VII. Recipient's Response 

A. Response to Student or Parent Reports of Harassment;  Response to Direct Observation of Harassment by a Responsible Employee 

B. Confidentiality 

C. Response to Other Types of Notice 

VIII. Prevention 

IX. Prompt and Equitable Grievance Procedures 

X. Due Process Rights of the Accused 

XI. First Amendment 

**I. Introduction**

Title IX of the Education Amendments of 1972 (Title IX) and the Department  of Educations (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]

[Contents]

**II. Sexual Harassment**

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. 

[Contents] 

**III. 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. [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]

[Contents] 

**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]
- Provide different aid, benefits, or services or provide aid, benefits,    or services in a different manner; [24] 
- Deny any student any such aid, benefit, or service; [25] 
- Subject students to separate or different rules of behavior, sanctions,    or other treatment; [26] 
- 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 aid, benefit, or service to students; [27] and 
- Otherwise limit any student in the enjoyment of any right, privilege, advantage,    or opportunity.  [28]

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. 

[Contents] 

**V. Determining a School's Responsibilities**

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. 

**A. Harassment that Denies or Limits a Student's    Ability to Participate in or Benefit from the Education Program**

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. 

**1. Factors Used to Evaluate Hostile Environment    Sexual 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: 
- The degree to which the conduct affected one or more students education.     OCR assesses the effect of the harassment on the student to determine whether   it has denied or limited the student's ability to participate in or benefit   from the school's program. For example, a student's grades may go down or   the student may be forced to withdraw from school because of the harassing   behavior.  [41]  A    student may also suffer physical injuries or mental or emotional distress.  [42]     In another situation, 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. [43]          For example, if a student, group of students, or a teacher regularly          directs sexual comments toward a 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. [44]    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. [45]    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. [46]    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. [47] 
- 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, [48] 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. [49] 
- 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. [50]    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. [51] 
- 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.  [52]

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. 

**2. Welcomeness**

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: 
- 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 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?

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

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. 

**1. Harassment by Teachers and Other Employees**

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: 
- The type and degree of responsibility given to the employee, including    both formal and informal authority, to provide aids, 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 circumstances in which the harassment took place; 
- where and when the harassment occurred; 
- the age and educational level of the student involved; and 
- as applicable, whether, in light of the student's age and educational level    and the way the school is run, it would be reasonable for the 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. 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.") 

**2. 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 [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. 

**C. 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  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. 

**D. The Role of 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. [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. 

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**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. 

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**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. 

**A. 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), [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]

**B. 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 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. 

**C. 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. 

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**VIII. 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. 

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**IX. 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. [98]  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. [99]

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. [100]  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. [101]

OCR has identified a number of elements in evaluating whether a school's grievance  procedures are prompt and equitable, 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; [102] 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.  [103]

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. [104]  The school must notify all of its students and employees of the name, office  address, and telephone number of the employee or employees designated. [105]  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. [106]  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. [107]  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. [108]

Grievance procedures may include informal mechanisms for resolving sexual  harassment complaints to be used if the parties agree to do so. [109]  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 and effectively. [110]  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. [111]

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**X. Due Process Rights of the Accused**

A public school's employees 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 consistent with any  federally guaranteed due process rights involved in a complaint proceeding.  Furthermore, the Family Educational Rights and Privacy Act (FERPA) does not  override federally protected due process rights of persons accused of sexual  harassment. 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. Of course, 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. 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 individuals accused  of harassment. 

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**XI. First Amendment**

In cases of alleged harassment, the protections of the First Amendment must  be considered if issues of speech or expression are involved. [112]  Free speech rights apply in the classroom (e.g., classroom lectures and discussions) [113] 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 [114]; and  student newspapers, journals, and other publications [115]).  In addition, First Amendment rights apply to the speech of students and teachers. [116]

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. [117]  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. [118]

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. [119]  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 professor's required  reading list includes excerpts from literary classics that contain descriptions  of explicit sexual conduct, including scenes that depict women in submissive  and demeaning roles. The professor also assigns students to write their own  materials, which are read in class. Some of the student essays contain sexually  derogatory themes about women. Several female students complain to the Dean  of Students that the materials and related classroom discussion have created  a sexually hostile environment for women in the class. What must the school  do in response? 

Answer:  Academic discourse in this example is protected by the First Amendment  even if it is offensive to individuals. Thus, Title IX would not require the  school to discipline the professor or to censor the reading list or related  class discussion. 

Example 2:  A group of male students repeatedly targets a female student  for harassment during the bus ride home from school, including making explicit  sexual comments about her body, passing around drawings that depict her engaging  in sexual conduct, and, on several occasions, attempting to follow her home  off the bus. The female student and her parents complain to the principal  that the male students conduct has created a hostile environment for girls  on the bus and that they fear for their daughter's safety. What must a school  do in response?

Answer:  Threatening and intimidating actions targeted at a particular student  or group of students, even though they contain elements of speech, are not  protected by the First Amendment. The school must take prompt and effective  actions, including disciplinary action if necessary, to stop the harassment  and prevent future harassment. 

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**Endnotes**

[1] This guidance does not  address sexual harassment of employees, although that conduct may be prohibited  by Title IX. 20 U.S.C. 1681 et seq.; 34 CFR part 106, subpart E. If employees  file Title IX sexual harassment complaints with OCR, the complaints will be  processed pursuant to the Procedures for Complaints of Employment Discrimination  Filed Against Recipients of Federal Financial Assistance. 28 CFR 42.604.  Employees are also protected from discrimination on the basis of sex, including  sexual harassment, by Title VII of the Civil Rights Act of 1964. For information  about Title VII and sexual harassment, see the Equal Employment Opportunity  Commission's (EEOC's) Guidelines on Sexual Harassment, 29 CFR 1604.11, for  information about filing a Title VII charge with the EEOC, see 29 CFR 1601.71607.13,  or see the EEOC's website at www.eeoc.gov. 

[2] 20 U.S.C. 1681; 34 CFR  part 106. 

[3] See, e.g.,  Davis v.  Monroe County Bd. of Educ., 526 U.S. 629, 649-50 (1999); Gebser v. Lago Vista  Ind. Sch. Dist., 524 U.S. 274, 281 (1998); Franklin v. Gwinnett County Pub.  Sch., 503 U.S. 60, 75 (1992); S. REP. NO. 100-64, 100 th Cong., 1 st Sess.  14 (1987); Sexual Harassment Guidance: Harassment of Students by School Employees,  Other Students, or Third Parties (1997 guidance), 62 FR 12034 (1997). 

[4] As described in the section  on "Applicability," this guidance applies to all levels of education. 

[5] For practical information  about steps that schools can take to prevent and remedy all types of harassment,  including sexual harassment, see "Protecting Students from Harassment  and Hate Crime, A Guide for Schools," which we issued jointly with the  National Association of Attorneys General. This Guide is available at our  web site at: www.ed.gov/pubs/Harassment. 

[6] See, e.g., Davis, 526  U.S. at 653 (alleged conduct of a sexual nature that would support a sexual  harassment claim included verbal harassment and "numerous acts of objectively  offensive touching;" Franklin, 503 U.S. at 63 (conduct of a sexual nature  found to support a sexual harassment claim under Title IX included kissing,  sexual intercourse); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 60-61  (1986) (demands for sexual favors, sexual advances, fondling, indecent exposure,  sexual intercourse, rape, sufficient to raise hostile environment claim under  Title VII); Ellison v. Brady, 924 F.2d 872, 873-74, 880 (9 th Cir. 1991) (allegations  sufficient to state sexual harassment claim under Title VII included repeated  requests for dates, letters making explicit references to sex and describing  the harasser's feelings for plaintiff); Lipsett v. University of Puerto Rico, 864 F.2d 881, 904-5 (1st Cir. 1988) (sexually derogatory comments, posting  of sexually explicit drawing of plaintiff, sexual advances may support sexual  harassment claim); Kadiki v. Virginia Commonwealth University, 892 F.Supp.  746, 751 (E.D. Va. 1995) (professor's spanking of university student may constitute  sexual conduct under Title IX); Doe v. Petaluma, 830 F.Supp. 1560, 1564-65  (N.D. Cal. 1996) (sexually derogatory taunts and innuendo can be the basis  of a harassment claim); Denver School Dist. #2, OCR Case No. 08-92-1007 (same  to allegations of vulgar language and obscenities, pictures of nude women on  office walls and desks, unwelcome touching, sexually offensive jokes, bribery  to perform sexual acts, indecent exposure); Nashoba Regional High School,  OCR Case No. 01-92-1377 (same as to year-long campaign of derogatory, sexually  explicit graffiti and remarks directed at one student. 

[7] See also Shoreline School  Dist., OCR Case No. 10-92-1002 (a teacher's patting a student on the arm,  shoulder, and back, and restraining the student when he was out of control,  not conduct of a sexual nature); Dartmouth Public Schools, OCR Case No. 01-90-1058  (same as to contact between high school coach and students); San Francisco  State University, OCR Case No. 09-94-2038 (same as to faculty advisor placing  her arm around a graduate student's shoulder in posing for a picture); Analy  Union High School Dist., OCR Case No. 09-92-1249 (same as to drama instructor  who put his arms around both male and female students who confided in him). 

[8] 20 U.S.C. 1687 (codification  of the amendment to Title IX regarding scope of jurisdiction, enacted by the  Civil Rights Restoration Act of 1987). See 65 FR 68049 (November 13, 2000)  (Department's amendment of the Title IX regulations to incorporate the statutory  definition of "program or activity"). 

[9] If a school contracts  with persons or organizations to provide benefits, services, or opportunities  to students as part of the school's program, and those persons or employees  of those organizations sexually harass students, OCR will consider the harassing  individual in the same manner that it considers the school's employees, as  described in this guidance. (See section on "Harassment by Teachers and  Other Employees.") See Brown v. Hot, Sexy, and Safer Products, Inc.,  68 F.3d 525, 529 (1st Cir. 1995) (Title IX sexual harassment claim brought  for school's role in permitting contract consultant hired by it to create allegedly  hostile environment). 

In addition, if a student engages in sexual harassment as an employee of the  school, OCR will consider the harassment under the standards described for  employees. (See section on "Harassment by Teachers and Other Employees.")  For example, OCR would consider it harassment by an employee if a student teaching  assistant who is responsible for assigning grades in a course, i.e., for providing  aid, benefits, or services to students under the recipient's program, required  a student in his or her class to submit to sexual advances in order to obtain  a certain grade in the class. 

[10]Cf.John Does 1  v. Covington County Sch. Bd., 884 F.Supp. 462, 464-65 (M.D. Ala. 1995) (male  students alleging that a teacher sexually harassed and abused them stated cause  of action under Title IX). 

[11] Title IX and the  regulations implementing it prohibit discrimination "on the basis of sex;" they  do not restrict protection from sexual harassment to those circumstances in  which the harasser only harasses members of the opposite sex.' See 34 CFR 106.31.  In Oncale v. Sundowner Offshore Services, Inc. the Supreme Court held unanimously  that sex discrimination consisting of same-sex sexual harassment can violate  Title VII's prohibition against discrimination because of sex.' 523 U.S. 75,  82 (1998). The Supreme Court's holding in Oncale is consistent with OCR policy,  originally stated in its 1997 guidance, that Title IX prohibits sexual harassment  regardless of whether the harasser and the person being harassed are members  of the same sex.' 62 FR 12039. See also Kinman v. Omaha Public School Dist., 94 F.3d 463, 468 (8 th Cir. 1996), rev'd on other grounds, 171 F.3d 607  (1999) (female student's allegation of sexual harassment by female teacher  sufficient to raise a claim under Title IX); Doe v. Petaluma, 830 F.Supp.  1560, 1564-65, 1575 (N.D. Cal. 1996) (female junior high student alleging sexual  harassment by other students, including both boys and girls, sufficient to  raise a claim under Title IX); John Does 1, 884 F.Supp. at 465 (same as to  male students allegations of sexual harassment and abuse by a male teacher.)  It can also occur in certain situations if the harassment is directed at students  of both sexes. Chiapuzo v. BLT Operating Corp., 826 F.Supp. 1334, 1337 (D.Wyo.  1993) (court found that if males and females were subject to harassment, but  harassment was based on sex, it could violate Title VII); but see Holman v.  Indiana, 211 F.3d 399, 405 (7th Cir. 2000) (if male and female both subjected  to requests for sex, court found it could not violate Title VII). 

In many circumstances, harassing conduct will be on the basis of sex because  the student would not have been subjected to it at all had he or she been a  member of the opposite sex; e.g., if a female student is repeatedly propositioned  by a male student or employee (or, for that matter, if a male student is repeatedly  propositioned by a male student or employee.) In other circumstances, harassing  conduct will be on the basis of sex if the student would not have been affected  by it in the same way or to the same extent had he or she been a member of  the opposite sex; e.g., pornography and sexually explicit jokes in a mostly  male shop class are likely to affect the few girls in the class more than it  will most of the boys. 

In yet other circumstances, the conduct will be on the basis of sex in that  the student's sex was a factor in or affected the nature of the harasser's  conduct or both. Thus, in Chiapuzo, a supervisor made demeaning remarks to  both partners of a married couple working for him, e.g., as to sexual acts  he wanted to engage in with the wife and how he would be a better lover than  the husband. In both cases, according to the court, the remarks were based  on sex in that they were made with an intent to demean each member of the couple  because of his or her respective sex.' 826 F.Supp. at 1337. See also Steiner  v. Showboat Operating Co., 25 F.3d 1459, 1463-64 (9 th Cir. 1994), cert. denied, 115 S.Ct. 733 (1995); but see Holman, 211 F.3d at 405 (finding that if male  and female both subjected to requests for sex, Title VII could not be violated). 

[12]Nashoba Regional High  School, OCR Case No. 01-92-1397. In Conejo Valley School Dist., OCR Case  No. 09-93-1305, female students allegedly taunted another female student about  engaging in sexual activity; OCR found that the alleged comments were sexually  explicit and, if true, would be sufficiently severe, persistent, and pervasive  to create a hostile environment. 

[13] See Williamson v.  A.G. Edwards & Sons, Inc., 876 F2d 69, 70 (8 th Cir. 1989, cert. denied  493 U.S. 1089 (1990); DeSantis v. Pacific Tel. & Tel. Co., Inc., 608 F.2d  327, 329-30 (9th Cir. 1979)(same); Blum v. Gulf Oil Corp., 597 F.2d 936,  938 (5th Cir. 1979)(same). 

[14] It should be noted  that some State and local laws may prohibit discrimination on the basis of  sexual orientation. Also, under certain circumstances, courts may permit redress  for harassment on the basis of sexual orientation under other Federal legal  authority. See Nabozny v. Podlesny, 92 F.3d 446, 460 (7th Cir. 1996) (holding  that a gay student could maintain claims alleging discrimination based on both  gender and sexual orientation under the Equal Protection Clause of the United  States Constitution in a case in which a school district failed to protect  the student to the same extent that other students were protected from harassment  and harm by other students due to the student's gender and sexual orientation). 

[15] However, sufficiently  serious sexual harassment is covered by Title IX even if the hostile environment  also includes taunts based on sexual orientation. 

[16] See also, Price Waterhouse  v. Hopkins, 490 U.S. 228, 251 (1989) (plurality opinion) (where an accounting  firm denied partnership to a female candidate, the Supreme Court found Title  VII prohibits an employer from evaluating employees by assuming or insisting  that they match the stereotype associated with their sex). 

[17] See generally Gebser; Davis; See also Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65-66  (1986); Harris v. Forklift Systems Inc., 510 U.S. 14, 22 (1993); see alsoHicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10 th Cir. 1987) (concluding  that harassment based on sex may be discrimination whether or not it is sexual  in nature); McKinney v. Dole, 765 F.2d 1129, 1138 (D.C. Cir. 1985) (physical,  but nonsexual, assault could be sex-based harassment if shown to be unequal  treatment that would not have taken place but for the employee's sex); Cline  v. General Electric Capital Auto Lease, Inc., 757 F.Supp. 923, 932-33 (N.D.  Ill. 1991). 

[18] See, e.g., sections  on "Harassment by Teachers and Other Employees," "Harassment  by Other Students or Third Parties," "Notice of Employee, Peer, or  Third Party Harassment," Factors Used to Evaluate a Hostile Environment," Recipient's  Response," and "Prompt and Equitable Grievance Procedures." 

[19] See Lipsett, 864  F.2d at 903-905 (general antagonism toward women, including stated goal of  eliminating women from surgical program, statements that women shouldn't be  in the program, and assignment of menial tasks, combined with overt sexual  harassment); Harris, 510 U.S. at 23; Andrews v. City of Philadelphia, 895  F.2d 1469, 1485-86 (3rd Cir. 1990) (court directed trial court to consider  sexual conduct as well as theft of female employees files and work, destruction  of property, and anonymous phone calls in determining if there had been sex  discrimination); see also Hall v. Gus Construction Co., 842 F.2d 1010, 1014  (8th Cir. 1988) (affirming that harassment due to the employee's sex may be  actionable even if the harassment is not sexual in nature); Hicks, 833 F.2d  at 1415; Eden Prairie Schools, Dist. #272, OCR Case No. 05-92-1174 (the boys  made lewd comments about male anatomy and tormented the girls by pretending  to stab them with rubber knives; while the stabbing was not sexual conduct,  it was directed at them because of their sex, i.e., because they were girls). 

[20]Davis, 526 U.S. at  650 ("Having previously determined that 'sexual harassment' is 'discrimination'  in the school context under Title IX, we are constrained to conclude that student-on-student  sexual harassment, if sufficiently severe, can likewise rise to the level of  discrimination actionable under the statute."); Franklin, 503 U.S. at  75 ("Unquestionably, Title IX placed on the [school] the duty not to discriminate  on the basis of sex, and 'when a supervisor sexually harasses a subordinate  because of the subordinate's sex, that supervisor "discriminate[s]" on  the basis of sex.' ... We believe the same rule should apply when a teacher  sexually harasses and abuses a student." (citation omitted)). 

OCR's longstanding interpretation of its regulations is that sexual harassment  may constitute a violation. 34 CFR 106.31; See Sexual Harassment Guidance,  62 FR 12034 (1997). When Congress enacted the Civil Rights Restoration Act  of 1987 to amend Title IX to restore institution-wide coverage over federally  assisted education programs and activities, the legislative history indicated  not only that Congress was aware that OCR interpreted its Title IX regulations  to prohibit sexual harassment, but also that one of the reasons for passing  the Restoration Act was to enable OCR to investigate and resolve cases involving  allegations of sexual harassment. S. REP. NO. 64, 100th Cong., 1st Sess.  at 12 (1987). The examples of discrimination that Congress intended to be  remedied by its statutory change included sexual harassment of students by  professors, id. at 14, and these examples demonstrate congressional recognition  that discrimination in violation of Title IX can be carried out by school employees  who are providing aid, benefits, or services to students. Congress also intended  that if discrimination occurred, recipients needed to implement effective remedies.  S. REP. NO. 64 at 5. 

[21] 34 CFR 106.4. 

[22] These are the basic  regulatory requirements. 34 CFR 106.31(a)(b). Depending upon the facts, sexual  harassment may also be prohibited by more specific regulatory prohibitions.  For example, if a college financial aid director told a student that she would  not get the student financial assistance for which she qualified unless she  slept with him, that also would be covered by the regulatory provision prohibiting  discrimination on the basis of sex in financial assistance, 34 CFR 106.37(a). 

[23] 34 CFR 106.31(b)(1). 

[24] 34 CFR 106.31(b)(2). 

[25] 34 CFR 106.31(b)(3). 

[26] 34 CFR 106.31(b)(4). 

[27] 34 CFR 106.31(b)(6). 

[28] 34 CFR 106.31(b)(7). 

[29] 34 CFR 106.3(a). 

[30] 34 CFR 106.9. 

[31] 34 CFR 106.8(b). 

[32] 34 CFR 106.8(a). 

[33] The 1997 guidance  referred to quid pro quo harassment and hostile environment harassment. 62  FR 1203840. 

[34] See Alexander v.  Yale University, 459 F.Supp. 1, 4 (D.Conn. 1977), aff'd, 631 F.2d 178 (2nd Cir. 1980)(stating that a claim "that academic advancement was conditioned  upon submission to sexual demands constitutes [a claim of] sex discrimination  in education..."); Crandell v. New York College, Osteopathic Medicine, 87 F.Supp.2d 304, 318 (S.D.N.Y. 2000) (finding that allegations that a supervisory  physician demanded that a student physician spend time with him and have lunch  with him or receive a poor evaluation, in light of the totality of his alleged  sexual comments and other inappropriate behavior, constituted a claim of quid  pro quo harassment); Kadiki, 892 F.Supp. at 752 (reexamination in a course  conditioned on college student's agreeing to be spanked should she not attain  a certain grade may constitute quid pro quo harassment). 

[35] 34 CFR 106.31(b). 

[36]Davis, 526 U.S. at  651 (confirming, by citing approvingly both to Title VII cases ( Meritor Savings  Bank, FSB v. Vinson, 477 U.S. 57,67 (1986) (finding that hostile environment  claims are cognizable under Title VII), and Oncale v. Sundowner Offshore Services,  Inc., 523 U.S. 75, 82 (1998)) and OCR's 1997 guidance, 62 FR at 12041-42,  that determinations under Title IX as to what conduct constitutes hostile environment  sexual harassment may continue to rely on Title VII caselaw). 

[37] 34 CFR 106.31(b).  See Davis, 526 U.S. at 650 (concluding that allegations of student-on-student  sexual harassment that is "so severe, pervasive, and objectively offensive  that it can be said to deprive the victims of access to the educational opportunities  or benefits" supports a claim for money damages in an implied right of  action). 

[38] In Harris, the Supreme  Court explained the requirement for considering the "subjective perspective" when  determining the existence of a hostile environment. The Court stated--"...  if the victim does not subjectively perceive the environment to be abusive,  the conduct has not actually altered the conditions of the victim's employment,  and there is no Title VII violation." 510 U.S. at 21-22. 

[39] See Davis, 526 U.S.  at 650 (conduct must be "objectively offensive" to trigger liability  for money damages); Elgamil v. Syracuse University, 2000 U.S. Dist. LEXIS  12598 at 17 (N.D.N.Y. 2000) (citing Harris); Booher v. Board of Regents,  1998 U.S. Dist. LEXIS 11404 at 25 (E.D. Ky. 1998) (same). See Oncale, 523  U.S. at 81, in which the Court "emphasized ... that the objective severity  of harassment should be judged from the perspective of a reasonable person  in the [victim's] position, considering 'all the circumstances,''' and citing  Harris, 510 U.S. at 20, in which the Court indicated that a "reasonable  person" standard should be used to determine whether sexual conduct constituted  harassment. This standard has been applied under Title VII to take into account  the sex of the subject of the harassment, see, e.g., Ellison, 924 F.2d at  878-79 (applying a "reasonable woman" standard to sexual harassment),  and has been adapted to sexual harassment in education under Title IX, Patricia  H. v. Berkeley Unified School Dist., 830 F.Supp. 1288, 1296 (N.D. Cal. 1993)  (adopting a "reasonable victim" standard and referring to OCR's use  of it). 

[40] See Davis, 526 U.S.  at 651, citing both Oncale, 523 U.S. at 82, and OCR's 1997 guidance (62 FR  12041-12042). 

[41] See, e.g., Davis, 526 U.S. at 634 (as a result of the harassment, student's grades dropped  and she wrote a suicide note); Doe v. Petaluma, 830 F. Supp. at 1566 (student  so upset about harassment by other students that she was forced to transfer  several times, including finally to a private school); Modesto City Schools, OCR Case No. 09-93-1391 (evidence showed that one girl's grades dropped while  the harassment was occurring); Weaverville Elementary School, OCR Case No.  09-91-1116 (students left school due to the harassment). Compare with College  of Alameda, OCR Case No. 09-90-2104 (student not in instructor's class and  no evidence of any effect on student's educational benefits or service, so  no hostile environment). 

[42]Doe v. Petaluma,  830 F.Supp. at 1566. 

[43] See Waltman v. Int'l  Paper Co., 875 F.2d 468, 477 (5th Cir. 1989) (holding that although not specifically  directed at the plaintiff, sexually explicit graffiti on the walls was "relevant  to her claim"); Monteiro v. Tempe Union High School, 158 F.3d 1022, 1033-34  (9th Cir. 1998) (Title VI racial harassment case, citing Waltman; see alsoHall, 842 F. 2d at 1015 (evidence of sexual harassment directed at others  is relevant to show hostile environment under Title VII). 

[44] See, e.g., Elgmil  2000 U.S. Dist. LEXIS at 19 ("in order to be actionable, the incidents  of harassment must occur in concert or with a regularity that can reasonably  be termed pervasive"); Andrews, 895 F.2d at 1484 ("Harassment is  pervasive when 'incidents of harassment occur either in concert or with regularity''');  Moylan v. Maries County, 792 F.2d 746, 749 (8th Cir. 1986). 

[45] 34 CFR 106.31(b).  See Vance v. Spencer County Public School District, 231 F.3d 253 (6th Cir.  2000); Doe v. School Admin. Dist. No. 19, 66 F.Supp.2d 57, 62 (D. Me. 1999).  See also statement of the U.S. Equal Employment Opportunity Commission (EEOC): "The  Commission will presume that the unwelcome, intentional touching of [an employee's]  intimate body areas is sufficiently offensive to alter the conditions of her  working environment and constitute a violation of Title VII. More so than  in the case of verbal advances or remarks, a single unwelcome physical advance  can seriously poison the victim's working environment." EEOC Policy Guidance  on Current Issues of Sexual Harassment, 17. Barrett v. Omaha National Bank, 584 F. Supp. 22, 30 (D. Neb. 1983), aff'd, 726 F. 2d 424 (8th Cir. 1984)  (finding that hostile environment was created under Title VII by isolated events,  i.e., occurring while traveling to and during a two-day conference, including  the co-worker's talking to plaintiff about sexual activities and touching her  in an offensive manner while they were inside a vehicle from which she could  not escape). 

[46] See also Ursuline  College, OCR Case No. 05-91-2068 (a single incident of comments on a male  student's muscles arguably not sexual; however, assuming they were, not severe  enough to create a hostile environment). 

[47]Davis, 526 U.S. at  653 ("The relationship between the harasser and the victim necessarily  affects the extent to which the misconduct can be said to breach Title IX's  guarantee of equal access to educational benefits and to have a systemic effect  on a program or activity. Peer harassment, in particular, is less likely to  satisfy these requirements than is teacher student harassment."); Patricia  H., 830 F. Supp. at 1297 (stating that the "grave disparity in age and  power" between teacher and student contributed to the creation of a hostile  environment); Summerfield Schools, OCR Case No. 15-92-1929 ("impact of  the ... remarks was heightened by the fact that the coach is an adult in a  position of authority"); cf.Doe v. Taylor I.S.D., 15 F.3d 443, 460 (5th Cir. 1994) (Sec. 1983 case; taking into consideration the influence that  the teacher had over the student by virtue of his position of authority to  find that a sexual relationship between a high school teacher and a student  was unlawful). 

[48]  See, e.g., McKinney, 765 F.2d at 1138-49; Robinson v. Jacksonville Shipyards, 760 F. Supp. 1486,  1522 (M.D. Fla. 1991). 

[49]Cf.Patricia H.,  830 F. Supp. at 1297. 

[50] See, e.g., Barrett, 584 F. Supp. at 30 (finding harassment occurring in a car from which the  victim could not escape particularly severe). 

[51] See Hall, 842 F.  2d at 1015 (stating that "evidence of sexual harassment directed at employees  other than the plaintiff is relevant to show a hostile environment") (citing  Hicks, 833 F. 2d, 1415-16). Cf.Midwest City-Del City Public Schools, OCR  Case No. 06-92-1012 (finding of racially hostile environment based in part  on several racial incidents at school shortly before incidents in complaint,  a number of which involved the same student involved in the complaint). 

[52] In addition, incidents  of racial or national origin harassment directed at a particular individual  may also be aggregated with incidents of sexual or gender harassment directed  at that individual in determining the existence of a hostile environment. Hicks, 833 F.2d at 1416; Jefferies v. Harris County Community Action Ass'n, 615  F.2d 1025, 1032 (5th Cir. 1980). 

[53]Does v. Covington  Sch. Bd. of Educ., 930 F.Supp. 554, 569 (M.D. Ala. 1996); Henson v. City of  Dundee, 682 F.2d 897, 903 (11th Cir. 1982). 

[54] See Meritor Savings  Bank, 477 U.S. at 68. "[T]he fact that sex-related conduct was 'voluntary,'  in the sense that the complainant was not forced to participate against her  will, is not a defense to a sexual harassment suit brought under Title VII....  The correct inquiry is whether [the subject of the harassment] by her conduct  indicated that the alleged sexual advances were unwelcome, not whether her  actual participation in sexual intercourse was voluntary."

[55]Lipsett, 864 F.2d  at 898 (while, in some instances, a person may have the responsibility for  telling the harasser "directly" that the conduct is unwelcome, in  other cases a "consistent failure to respond to suggestive comments or  gestures may be sufficient...."); Danna v. New York Tel. Co., 752 F.Supp.  594, 612 (despite a female employee's own foul language and participation in  graffiti writing, her complaints to management indicated that the harassment  was not welcome); see also Carr v. Allison Gas Turbine Div. GMC., 32 F.3d  1007, 1011 (7 th Cir. 1994) (finding that cursing and dirty jokes by a female  employee did not show that she welcomed the sexual harassment, given her frequent  complaints about it: "Even if ... [the employee's] testimony that she  talked and acted as she did [only] in an effort to be one of the boys is ...  discounted, her words and conduct cannot be compared to those of the men and  used to justify their conduct.... The asymmetry of positions must be considered.  She was one woman; they were many men. Her use of [vulgar] terms ... could  not be deeply threatening...."). 

[56] See Reed v. Shepard, 939 F.2d 484, 486-87, 491-92 (7th Cir. 1991) (no harassment found under  Title VII in a case in which a female employee not only tolerated, but also  instigated the suggestive joking activities about which she was now complaining);  Weinsheimer v. Rockwell Int'l Corp., 754 F.Supp. 1559, 1563-64 (M.D. Fla.  1990) (same, in case in which general shop banter was full of vulgarity and  sexual innuendo by men and women alike, and plaintiff contributed her share  to this atmosphere.) However, even if a student participates in the sexual  banter, OCR may in certain circumstances find that the conduct was nevertheless  unwelcome if, for example, a teacher took an active role in the sexual banter  and a student reasonably perceived that the teacher expected him or her to  participate. 

[57] The school bears  the burden of rebutting the presumption. 

[58] Of course, nothing  in Title IX would prohibit a school from implementing policies prohibiting  sexual conduct or sexual relationships between students and adult employees. 

[59] See note 58. 

[60]Gebser, 524 U.S.  at 281 ("Franklin ... establishes that a school district can be held liable  in damages [in an implied action under Title IX] in cases involving a teacher's  sexual harassment of a student...."; 34 CFR 106.31; See 1997 Sexual Harassment  Guidance, 62 FR 12034. 

[61] See Davis, 526 U.S.  at 653 (stating that harassment of a student by a teacher is more likely than  harassment by a fellow student to constitute the type of effective denial of  equal access to educational benefits that can breach the requirements of Title  IX). 

[62] 34 CFR 106.31(b).  Cf.Gebser, 524 U.S. at 283-84 (Court recognized in an implied right of action  for money damages for teacher sexual harassment of a student that the question  of whether a violation of Title IX occurred is a separate question from the  scope of appropriate remedies for a violation). 

[63]Davis, 526 U.S. at  646. 

[64] See section on "Applicability  of Title IX" for scope of coverage. 

[65] See section on "Notice  of Employee, Peer, or Third Party Harassment." 

[66] See section on "Notice  of Employee, Peer, or Third Party Harassment." 

[67] 34 CFR 106.31(b). 

[68] 34 CFR 106.31(b). 

[69] See section on "Notice  of Employee, Peer, or Third Party Harassment." 

[70]Cf.Davis, 526 U.S.  at 646. 

[71] 34 CFR 106.31(b). 

[72] 34 CFR 106.31(b). 

[73] Consistent with its  obligation under Title IX to protect students, cf.Gebser, 524 U.S. at 287,  OCR interprets its regulations to ensure that recipients take reasonable action  to address, rather than neglect, reasonably obvious discrimination. Cf.Gebser, 524 U.S. at 287-88; Davis, 526 U.S. at 650 (actual notice standard for obtaining  money damages in private lawsuit). 

[74] Whether an employee  is a responsible employee or whether it would be reasonable for a student to  believe the employee is, even if the employee is not, will vary depending on  factors such as the age and education level of the student, the type of position  held by the employee, and school practices and procedures, both formal and  informal. The Supreme Court held that a school will only be liable for money damages  in a private lawsuit where there is actual notice to a school official with  the authority to address the alleged discrimination and take corrective action.  Gebser, 524 U.S. at 290, and Davis, 526 U.S. at 642. The concept of a "responsible  employee" under our guidance is broader. That is, even if a responsible  employee does not have the authority to address the discrimination and take  corrective action, he or she does have the obligation to report it to appropriate  school officials. 

[75] The Title IX regulations  require that recipients designate at least one employee to coordinate its efforts  to comply with and carry out its responsibilities under the regulations, including  complaint investigations. 34 CFR 106.8(a). 

[76] 34 CFR 106.31. See  Yates v. Avco Corp., 819 F.2d 630, 636 (6 th Cir. 1987); Katz v. Dole, 709  F.2d 251, 256 (4 th Cir. 1983). 

[77] For example, a substantiated  report indicating that a high school coach has engaged in inappropriate physical  conduct of a sexual nature in several instances with different students may  suggest a pattern of conduct that should trigger an inquiry as to whether other  students have been sexually harassed by that coach. See also Doe v. School  Administrative Dist. No. 19, 66 F.Supp.2d 57, 63-64 and n.6 (D.Me. 1999) (in  a private lawsuit for money damages under Title IX in which a high school principal  had notice that a teacher may be engaging in a sexual relationship with one  underage student and did not investigate, and then the same teacher allegedly  engaged in sexual intercourse with another student, who did not report the  incident, the court indicated that the school's knowledge of the first relationship  may be sufficient to serve as actual notice of the second incident). 

[78]Cf.Katz, 709 F.2d  at 256 (finding that the employer "should have been aware of the problem  both because of its pervasive character and because of [the employee's] specific  complaints ..."); Smolsky v. Consolidated Rail Corp., 780 F.Supp. 283,  293 (E.D. Pa. 1991), reconsideration denied, 785 F.Supp. 71 (E.D. Pa. 1992) "where  the harassment is apparent to all others in the work place, supervisors and  coworkers, this may be sufficient to put the employer on notice of the sexual  harassment" under Title VII); Jensen v. Eveleth Taconite Co., 824 F.Supp.  847, 887 (D.Minn. 1993); "[s]exual harassment ... was so pervasive that  an inference of knowledge arises .... The acts of sexual harassment detailed  herein were too common and continuous to have escaped Eveleth Mines had its  management been reasonably alert."); Cummings v. Walsh Construction Co., 561 F.Supp. 872, 878 (S.D. Ga. 1983) ("... allegations not only of the  [employee] registering her complaints with her foreman ... but also that sexual  harassment was so widespread that defendant had constructive notice of it" under  Title VII); but see Murray v. New York Univ. College of Dentistry, 57 F.3d  243, 250-51 (2 nd Cir. 1995) (concluding that other students knowledge of  the conduct was not enough to charge the school with notice, particularly because  these students may not have been aware that the conduct was offensive or abusive). 

[79] 34 CFR 106.9 and  106.8(b). 

[80] 34 CFR 106.8(b) and  106.31(b). 

[81] 34 CFR 106.9. 

[82] 34 CFR 106.8(b). 

[83] 34 CFR 106.31. 

[84] 34 CFR 106.31 and  106.3. Gebser, 524 U.S. at 288 ("In the event of a violation, [under  OCR's administrative enforcement scheme] a funding recipient may be required  to take 'such remedial action as [is] deem[ed] necessary to overcome the effects  of [the] discrimination.' §106.3."). 

[85] 20 U.S.C. 1682.  In the event that OCR determines that voluntary compliance cannot be secured,  OCR may take steps that may result in termination of Federal funding through  administrative enforcement, or, alternatively, OCR may refer the case to the  Department of Justice for judicial enforcement. 

[86] Schools have an obligation  to ensure that the educational environment is free of discrimination and cannot  fulfill this obligation without determining if sexual harassment complaints  have merit. 

[87] In some situations,  for example, if a playground supervisor observes a young student repeatedly  engaging in conduct toward other students that is clearly unacceptable under  the school's policies, it may be appropriate for the school to intervene without  contacting the other students. It still may be necessary for the school to  talk with the students (and parents of elementary and secondary students) afterwards,  e.g., to determine the extent of the harassment and how it affected them. 

[88]Gebser, 524 U.S.  at 288; Bundy v. Jackson, 641 F.2d 934, 947 (D.C. Cir. 1981) (employers should  take corrective and preventive measures under Title VII); accord, Jones v.  Flagship Int'l, 793 F.2d 714, 719-720 (5 th Cir. 1986) (employer should take  prompt remedial action under Title VII). 

[89] See Doe ex rel. Doe  v. Dallas Indep. Sch. Dist., 220 F.3d 380 (5th Cir. 2000) (citing Waltman); Waltman, 875 F.2d at 479 (appropriateness of employers remedial action  under Title VII will depend on the "severity and persistence of the harassment  and the effectiveness of any initial remedial steps"); Dornhecker v. Malibu  Grand Prix Corp., 828 F.2d 307, 309-10 (5th Cir. 1987); holding that a company's  quick decision to remove the harasser from the victim was adequate remedial  action). 

[90] See Intlekofer v.  Turnage, 973 F.2d 773, 779-780 (9th Cir. 1992)(holding that the employers  response was insufficient and that more severe disciplinary action was necessary  in situations in which counseling, separating the parties, and warnings of  possible discipline were ineffective in ending the harassing behavior). 

[91] Offering assistance  in changing living arrangements is one of the actions required of colleges  and universities by the Campus Security Act in cases of rape and sexual assault.  See 20 U.S.C. 1092(f). 

[92] See section on "Harassment  by Other Students or Third Parties." 

[93]University of California  at Santa Cruz, OCR Case No. 09-93-2141 (extensive individual and group counseling);  Eden Prairie Schools, Dist. #272, OCR Case No. 05-92-1174 (counseling). 

[94] Even if the harassment  stops without the school's involvement, the school may still need to take steps  to prevent or deter any future harassment  -- to inform the school community  that harassment will not be tolerated. Wills v. Brown University, 184 F.3d  20, 28 (1st Cir. 1999) (difficult problems are posed in balancing a student's  request for anonymity or limited disclosure against the need to prevent future  harassment); Fuller v. City of Oakland, 47 F.3d 1522, 1528-29 (9th Cir. 1995)  (Title VII case). 

[95] 34 CFR 106.8(b) and  106.71, incorporating by reference 34 CFR 100.7(e). The Title IX regulations  prohibit intimidation, threats, coercion, or discrimination against any individual  for the purpose of interfering with any right or privilege secured by Title  IX. 

[96]Tacoma School Dist.  No. 10, OCR Case No. 10-94-1079 (due to the large number of students harassed  by an employee, the extended period of time over which the harassment occurred,  and the failure of several of the students to report the harassment, the school  committed as part of corrective action plan to providing training for students);  Los Medanos College, OCR Case No. 09-84-2092 (as part of corrective action  plan, school committed to providing sexual harassment seminar for campus employees);  Sacramento City Unified School Dist., OCR Case No. 09-83-1063 (same as to  workshops for management and administrative personnel and in-service training  for non-management personnel). 

[97] In addition, if information  about the incident is contained in an "education record" of the student  alleging the harassment, as defined in the Family Educational Rights and Privacy  Act (FERPA), 20 U.S.C. 1232g, the school should consider whether FERPA would  prohibit the school from disclosing information without the student's consent.  Id. In evaluating whether FERPA would limit disclosure, the Department does  not interpret FERPA to override any federally protected due process rights  of a school employee accused of harassment. 

[98] 34 CFR 106.8(b).  This requirement has been part of the Title IX regulations since their inception  in 1975. Thus, schools have been required to have these procedures in place  since that time. At the elementary and secondary level, this responsibility  generally lies with the school district. At the postsecondary level, there  may be a procedure for a particular campus or college or for an entire university  system. 

[99]Fenton Community High  School Dist. #100, OCR Case 05-92-1104. 

[100] While a school  is required to have a grievance procedure under which complaints of sex discrimination  (including sexual harassment) can be filed, the same procedure may also be  used to address other forms of discrimination. 

[101] See generally  Meritor, 477 U.S. at 72-73 (holding that "mere existence of a grievance  procedure" for discrimination does not shield an employer from a sexual  harassment claim). 

[102] The Family Educational  Rights and Privacy Act (FERPA) does not prohibit a student from learning the  outcome of her complaint, i.e., whether the complaint was found to be credible  and whether harassment was found to have occurred. It is the Department's  current position under FERPA that a school cannot release information to a  complainant regarding disciplinary action imposed on a student found guilty  of harassment if that information is contained in a student's education record  unless — (1) the information directly relates to the complainant (e.g., an  order requiring the student harasser not to have contact with the complainant);  or (2) the harassment involves a crime of violence or a sex offense in a postsecondary  institution. See note 97. If the alleged harasser is a teacher, administrator,  or other non-student employee, FERPA would not limit the school's ability to  inform the complainant of any disciplinary action taken. 

[103] The section in  the guidance on "Recipient's Response" provides examples of reasonable  and appropriate corrective action. 

[104] 34 CFR 106.8(a). 

[105]Id.

[106] See Meritor,  477 U.S. at 72-73. 

[107]University of  California, Santa Cruz, OCR Case No. 09-93-2131. This is true for formal  as well as informal complaints. SeeUniversity of Maine at Machias, OCR Case  No. 01-94-6001 (school's new procedures not found in violation of Title IX  in part because they require written records for informal as well as formal  resolutions). These records need not be kept in a student's or employee's  individual file, but instead may be kept in a central confidential location. 

[108] For example,  in Cape Cod Community College, OCR Case No. 01-93-2047, the College was found  to have violated Title IX in part because the person identified by the school  as the Title IX coordinator was unfamiliar with Title IX, had no training,  and did not even realize he was the coordinator. 

[109] Indeed, in University  of Maine at Machias, OCR Case No. 01-94-6001, OCR found the school's procedures  to be inadequate because only formal complaints were investigated. While a  school isn't required to have an established procedure for resolving informal  complaints, they nevertheless must be addressed in some way. However, if there  are indications that the same individual may be harassing others, then it may  not be appropriate to resolve an informal complaint without taking steps to  address the entire situation. 

[110]Academy School  Dist. No 20, OCR Case No. 08-93-1023 (school's response determined to be insufficient  in a case in which it stopped its investigation after complaint filed with  police); Mills Public School Dist., OCR Case No. 01-93-1123, (not sufficient  for school to wait until end of police investigation). 

[111]Cf.EEOC v. Board  of Governors of State Colleges and Universities, 957 F.2d 424 (7th Cir. 1992),  cert. denied , 506 U.S. 906 (1992). 

[112] The First Amendment  applies to entities and individuals that are State actors. The receipt of  Federal funds by private schools does not directly subject those schools to  the U.S. Constitution. See Rendell-Baker v. Kohn, 457 U.S. 830, 840 (1982).  However, all actions taken by OCR must comport with First Amendment principles,  even in cases involving private schools that are not directly subject to the  First Amendment. 

[113] See, e.g., George  Mason University, OCR Case No. 03-94-2086 (law professor's use of a racially  derogatory word, as part of an instructional hypothetical regarding verbal  torts, did not constitute racial harassment); Portland School Dist. 1J, OCR  Case No. 10-94-1117 (reading teacher's choice to substitute a less offensive  term for a racial slur when reading an historical novel aloud in class constituted  an academic decision on presentation of curriculum, not racial harassment). 

[114] See Iota Xi Chapter  of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386 (4th Cir.  1993) (fraternity skit in which white male student dressed as an offensive  caricature of a black female constituted student expression). 

[115] See Florida Agricultural  and Mechanical University, OCR Case No. 04-92-2054 (no discrimination in case  in which campus newspaper, which welcomed individual opinions of all sorts,  printed article expressing one student's viewpoint on white students on campus.) 

[116]Tinker v. Des  Moines Indep. Community Sch. Dist., 393 U.S. 503, 506 (1969) (neither students  nor teachers shed their constitutional rights to freedom of expression at the  schoolhouse gates); Cf.Cohen v. San Bernardino Valley College, 92 F.3d 968,  972 (9th Cir. 1996) (holding that a college professor could not be punished  for his longstanding teaching methods, which included discussion of controversial  subjects such as obscenity and consensual sex with children, under an unconstitutionally  vague sexual harassment policy); George Mason University, OCR Case No. 03-94-2086  (law professor's use of a racially derogatory word, as part of an instructional  hypothetical regarding verbal torts, did not constitute racial harassment.) 

[117] See, e.g., University  of Illinois, OCR Case No. 05-94-2104 (fact that university's use of Native  American symbols was offensive to some Native American students and employees  was not dispositive, in and of itself, in assessing a racially hostile environment  claim under Title VI.) 

[118] See Meritor,  477 U.S. at 67 (the "mere utterance of an ethnic or racial epithet which  engenders offensive feelings in an employee" would not affect the conditions  of employment to a sufficient degree to violate Title VII), quoting Henson, 682 F.2d at 904; cf.R.A.V. v. City of St. Paul, 505 U.S. 377, 389 (1992)  (citing with approval EEOC's sexual harassment guidelines); Monteiro, 158  F.3d at 1032-34 (9 th Cir. 1998) (citing with approval OCR's racial harassment  investigative guidance). 

[119]Compare Bethel  School Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986) (Court upheld discipline  of high school student for making lewd speech to student assembly, noting that "[t]he  undoubted freedom to advocate unpopular and controversial issues in schools  must be balanced against the society's countervailing interest in teaching  students the boundaries of socially appropriate behavior."), withIota  Xi, 993 F.2d 386 (holding that, notwithstanding a university's mission to  create a culturally diverse learning environment and its substantial interest  in maintaining a campus free of discrimination, it could not punish students  who engaged in an offensive skit with racist and sexist overtones). 

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