### OFFICE OF THE ASSISTANT SECRETARY

### **Rescinded: This document has been formally rescinded by the Department and remains available on the web for historical purposes only.**

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|  |  | More ResourcesDear Colleague LetterPDF (245K)Fact      SheetPDF (121K)Know      Your RightsPDF (138K) |  |  |
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April 4, 2011

Dear Colleague:

Education has long been recognized as the great equalizer in America. The  U.S. Department of Education and its Office for Civil Rights (OCR) believe  that providing all students with an educational environment free from discrimination  is extremely important. The sexual harassment of students, including sexual  violence, interferes with students’ right to receive an education free from  discrimination and, in the case of sexual violence, is a crime. 

*etseq.*
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2

1 The  Department has determined that this Dear Colleague Letter is a “significant  guidance document” under the Office of Management and Budget’s Final Bulletin  for Agency Good Guidance Practices, 72 Fed. Reg. 3432 (Jan. 25, 2007), *available  at:* http://www.whitehouse.gov/sites/default/files/omb/assets/regulatory_matters_pdf/012507_good_guidance.pdf.  OCR issues this and other policy guidance to provide recipients with information  to assist them in meeting their obligations, and to provide members of the  public with information about their rights, under the civil rights laws and  implementing regulations that we enforce. OCR’s legal authority is based on  those laws and regulations. This letter does not add requirements to applicable  law, but provides information and examples to inform recipients about how OCR  evaluates whether covered entities are complying with their legal obligations.  If you are interested in commenting on this guidance, please send an e-mail  with your comments to OCR@ed.gov, or write to us at the following address:  Office for Civil Rights, U.S. Department of Education, 400 Maryland Avenue,SW, Washington, DC 20202. 2 Use  of the term “sexual harassment” throughout this document includes sexual violence  unless otherwise noted. Sexual harassment also may violate Title IV of the  Civil Rights Act of 1964 (42 U.S.C. § 2000c), which prohibits public school  districts and colleges from discriminating against students on the basis ofsex, among other bases. The U.S. Department of Justice enforces Title IV.

 

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sexual assault, sexual battery, and sexual coercion. All such acts of  sexual violence are forms of sexual harassment covered under Title IX.

  The statistics on sexual violence are both deeply troubling and a call to action  for the nation. A report prepared for the National Institute of Justice found  that about 1 in 5 women are victims of completed or attempted sexual assault  while in college.3 The  report also found that approximately 6.1 percent of males were victims of completed  or attempted sexual assault during college.4 According  to data collected under the Jeanne Clery Disclosure of Campus Security and  Campus Crime Statistics Act (Clery Act), 20 U.S.C. § 1092(f), in 2009, college  campuses reported nearly 3,300 forcible sex offenses as defined by the Clery  Act.5 This  problem is not limited to college. During the 2007-2008 school year, there  were 800 reported incidents of rape and attempted rape and 3,800 reported incidents  of other sexual batteries at public high schools.6 Additionally,  the likelihood that a woman with intellectual disabilities will be sexually  assaulted is estimated to be significantly higher than the general population.7 The  Department is deeply concerned about this problem and is committed to ensuring  that all students feel safe in their school, so that they have the opportunity  to benefit fully from the school’s programs and activities.

*Revised Sexual HarassmentGuidance *
*2001 Guidance*
8

*2001 Guidance *

3 CHRISTOPHER P. KREBS ET AL., THE CAMPUS SEXUAL ASSAULT STUDY: FINAL REPORT xiii (Nat’l Criminal Justice Reference Serv., Oct. 2007), *available at*http://www.ncjrs.gov/pdffiles1/nij/grants/221153.pdf*.*This study also found that the majority of campus sexual assaults occur when women are incapacitated, primarily by alcohol. *Id.*at xviii.4*Id.*at      5-5. 5 U.S. Department      of Education, Office of Postsecondary Education, Summary Crime Statistics      (data compiled from reports submitted in compliance with the Clery Act), *available      at*http://www2.ed.gov/admins/lead/safety/criminal2007-09.pdf.      Under the Clery Act, forcible sex offenses are defined as any sexual act      directed against another person, forcibly and/or against that person’s      will, or not forcibly or against the person’s will where the victim is      incapable of giving consent. Forcible sex offenses include forcible rape,      forcible sodomy, sexual assault with an object, and forcible fondling.      34 C.F.R. Part 668, Subpt. D, App. A.6 SIMONE ROBERS ET AL., INDICATORS OF SCHOOL CRIME AND SAFETY: 2010 at 104 (U.S. Dep’t of Educ. & U.S. Dep’t of Justice, Nov. 2010), *available* at http://nces.ed.gov/pubs2011/2011002.pdf. 7 ERIKA HARRELL & MICHAEL R. RAND, CRIME AGAINST PEOPLE WITH DISABILITIES, 2008 (Bureau of Justice Statistics, U.S. Dep’t of Justice, Dec. 2010), *available* at http://bjs.ojp.usdoj.gov/content/pub/pdf/capd08.pdf.8 The *2001       Guidance* is available on the Department’s Web site at   http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf.       This letter focuses on peer sexual harassment and violence. Schools’ obligations       and the appropriate response to sexual harassment and violence committed       by employees may be different from those described in this letter. Recipients       should refer to the *2001**Guidance* for further information       about employee harassment of students.   

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harassment and violence also are concerns for school districts. The  Title IX obligations discussed in this letter apply equally to school districts  unless otherwise noted.

**Title IX Requirements Related to Sexual Harassment and Sexual Violence**

**Schools’ Obligations to Respond to Sexual Harassment and Sexual Violence**

Sexual harassment is unwelcome conduct of a sexual nature. It includes unwelcome  sexual advances, requests for sexual favors, and other verbal, nonverbal, or  physical conduct of a sexual nature. Sexual violence is a form of sexual harassment  prohibited by Title IX.9  As explained in OCR’s *2001 Guidance*, when a student sexually harasses  another student, the harassing conduct creates a hostile environment if the  conduct is sufficiently serious that it interferes with or limits a student’s  ability to participate in or benefit from the school’s program. The more severe  the conduct, the less need there is to show a repetitive series of incidents  to prove a hostile environment, particularly if the harassment is physical.  Indeed, a single or isolated incident of sexual harassment may create a hostile  environment if the incident is sufficiently severe. For instance, a single instance of rape is sufficiently severe to create a hostile environment.10

9 Title   IX also prohibits gender-based harassment, which may include acts of verbal,   nonverbal, or physical aggression, intimidation, or hostility based on sex   or sex-stereotyping, even if those acts do not involve conduct of a sexual   nature. The Title IX obligations discussed in this letter also apply to gender-based   harassment. Gender-based harassment is discussed in more detail in the *2001   Guidance,* and in the 2010 Dear Colleague letter on Harassment and Bullying, which is available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf.10*See*, *e.g.*, *Jennings v. Univ. of N.C.*, 444 F.3d 255, 268, 274 n.12 (4th Cir. 2006) (acknowledging that while not an issue in this case, a single incident of sexual assault or rape could be sufficient to raise a jury question about whether a hostile environment exists, and noting that courts look to Title VII cases for guidance in analyzing Title IX sexual harassment claims);*Vance v. Spencer Cnty. Pub. Sch. Dist.*, 231 F.3d 253, 259 n.4 (6th Cir. 2000) (“‘[w]ithin the context of Title IX, a student’s claim of hostile environment can arise from a single incident’” (quoting *Doe v. Sch. Admin. Dist. No. 19*, 66 F. Supp. 2d 57, 62 (D. Me. 1999))); *Soper v. Hoben*,195 F.3d 845, 855 (6th Cir. 1999) (explaining that rape and sexual abuse “obviously qualif[y] as...severe, pervasive, and objectively offensive sexual harassment”); *see also**Berry v. Chi. Transit Auth.*, 618 F.3d 688, 692 (7th Cir. 2010) (in the Title VII context, “a single act can create a hostile environment if it is severe enough, and instances of uninvited physical contact with intimate parts of the body are among the most severe types of sexual harassment”); *Turner v. Saloon, Ltd.*,595 F.3d 679, 686 (7th Cir. 2010) (noting that “‘[o]ne instance of conduct that is sufficiently severe may be enough,’” which is “especially true when the touching is of an intimate body part” (quoting *Jackson v. Cnty. of Racine*,474 F.3d 493, 499 (7th Cir. 2007))); *McKinnis v. Crescent Guardian, Inc.*, 189 F. App’x 307, 310 (5th Cir. 2006) (holding that “‘the deliberate and unwanted touching of [a plaintiff’s] intimate body parts can constitute severe sexual harassment’” in Title VII cases (quoting *Harvill v. Westward Commc’ns, L.L.C.*, 433 F.3d 428, 436 (5th Cir. 2005))). 

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sponsored by the school at another location, or elsewhere. For example, Title  IX protects a student who is sexually assaulted by a fellow student during  a school-sponsored field trip.11  If a school knows or reasonably should know about student-on-student harassment  that creates a hostile environment, Title IX requires the school to take immediate  action to eliminate the harassment, prevent its recurrence, and address its  effects.12 Schools  also are required to publish a notice of nondiscrimination and to adopt and  publish grievance procedures. Because of these requirements, which are discussed  in greater detail in the following section, schools need to ensure that their  employees are trained so that they know to report harassment to appropriate  school officials, and so that employees with the authority to address harassment  know how to respond properly. Training for employees should include practical  information about how to identify and report sexual harassment and violence.  OCR recommends that this training be provided to any employees likely to witness  or receive reports of sexual harassment and violence, including teachers, school  law enforcement unit employees, school administrators, school counselors, generalcounsels, health personnel, and resident advisors.

Schools may have an obligation to respond to student-on-student sexual harassment  that initially occurred off school grounds, outside a school’s education program  or activity. If a student files a complaint with the school, regardless of  where the conduct occurred, the school must process the complaint in accordance  with its established procedures. Because students often experience the continuing  effects of off-campus sexual harassment in the educational setting, schools  should consider the effects of the off-campus conduct when evaluating whether  there is a hostile environment on campus. For example, if a student alleges  that he or she was sexually assaulted by another student off school grounds,  and that upon returning to school he or she was taunted and harassed by other  students who are the alleged perpetrator’s friends, the school should take  the earlier sexual assault into account in determining whether there is a sexually  hostile environment. The school also should take steps to protect a student  who was assaulted off campus from further sexual harassment or retaliation  from the perpetrator and his or her associates. 

11 Title   IX also protects third parties from sexual harassment or violence in a school’s   education programs and activities. For example, Title IX protects a high school   student participating in a college’s recruitment program, a visiting student   athlete, and a visitor in a school’s on-campus residence hall. Title IX also   protects employees of a recipient from sexual harassment. For further information   about harassment of employees, see *2001 Guidance*at n.1.12 This is    the standard for administrative enforcement of Title IX and in court cases    where plaintiffs are seeking injunctive relief. *See 2001 Guidance*at    ii-v, 12-13. The standard in private lawsuits for monetary damages is actual    knowledge and deliberate indifference. *See Davis v. Monroe Cnty. Bd.    of Ed.*, 526 U.S. 629, 643, 648 (1999).

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investigation will vary depending upon the nature of the allegations, the  age of the student or students involved (particularly in elementary and secondary  schools), the size and administrative structure of the school, and other factors.  Yet as discussed in more detail below, the school’s inquiry must in all cases  be prompt, thorough, and impartial. In cases involving potential criminal conduct,  school personnel must determine, consistent with State and local law, whether appropriate law enforcement or other authorities should be notified.13

Schools also should inform and obtain consent from the complainant (or the  complainant’s parents if the complainant is under 18 and does not attend a  postsecondary institution) before beginning an investigation. If the complainant  requests confidentiality or asks that the complaint not be pursued, the school  should take all reasonable steps to investigate and respond to the complaint  consistent with the request for confidentiality or request not to pursue an  investigation. If a complainant insists that his or her name or other identifiable  information not be disclosed to the alleged perpetrator, the school should  inform the complainant that its ability to respond may be limited.14   The school also should tell the complainant that Title IX prohibits retaliation,  and that school officials will not only take steps to prevent retaliation but  also take strong responsive action if it occurs. 

As discussed in the *2001 Guidance*, if the complainant continues to  ask that his or her name or other identifiable information not be revealed,  the school should evaluate that request in the context of its responsibility  to provide a safe and nondiscriminatory environment for all students. Thus,  the school may weigh the request for confidentiality against the following  factors: the seriousness of the alleged harassment; the complainant’s age;  whether there have been other harassment complaints about the same individual;  and the alleged harasser’s rights to receive information about the allegations  if the information is maintained by the school as an “education record” under  the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g;  34 C.F.R. Part 99.15 The  school should inform the complainant if it cannot ensure confidentiality. Even  if the school cannot take disciplinary action against the alleged harasser  because the complainant insists on confidentiality, it should pursue other  steps to limit the effects of the alleged harassment and prevent its recurrence.  Examples of such steps are discussed later in this letter. 

13 In   states with mandatory reporting laws, schools may be required to report certain   incidents to local law enforcement or child protection agencies.14 Schools should  refer to the *2001 Guidance* for additional information on confidentiality  and the alleged perpetrator’s due process rights.15 For example,   the alleged harasser may have a right under FERPA to inspect and review portions   of the complaint that directly relate to him or her. In that case, the school   must redact the complainant’s name and other identifying information before   allowing the alleged harasser to inspect and review the sections of the complaint   that relate to him or her. In some cases, such as those where the school is   required to report the incident to local law enforcement or other officials,   the school may not be able to maintain the complainant’s confidentiality.

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nature of sexual harassment and violence, and understand that the school will  not tolerate such conduct. Indeed, these measures may bring potentially problematic  conduct to the school’s attention before it becomes serious enough to create  a hostile environment. Training for administrators, teachers, staff, and students  also can help ensure that they understand what types of conduct constitute  sexual harassment or violence, can identify warning signals that may need attention,  and know how to respond. More detailed information and examples of education  and other preventive measures are provided later in this letter.

**Procedural Requirements Pertaining to Sexual Harassment and Sexual    Violence**

Recipients of Federal financial assistance must comply with the procedural  requirements outlined in the Title IX implementing regulations. Specifically,  a recipient must:

(A) Disseminate a notice of nondiscrimination;16

(B) Designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under Title IX;17 and

(C) Adopt and publish grievance procedures providing   for prompt and equitable resolution of student and employee sex discriminationcomplaints.18

These requirements apply to all forms of sexual harassment, including sexual  violence, and are important for preventing and effectively responding to sex  discrimination. They are discussed in greater detail below. OCR advises recipients  to examine their current policies and procedures on sexual harassment and sexual  violence to determine whether those policies comply with the requirements articulated  in this letter and the *2001 Guidance.*Recipients should then implement  changes as needed. 

(A) *Notice of Nondiscrimination***

The Title IX regulations require that each recipient publish a notice of nondiscrimination  stating that the recipient does not discriminate on the basis of sex in its  education programs and activities, and that Title IX requires it not to discriminate  in such a manner.19 The  notice must state that inquiries concerning the application of Title IX may  be referred to the recipient’s Title IX coordinator or to OCR. It should include  the name or title, office address, telephone number, and e-mail address for  the recipient’s designated Title IX coordinator.

The notice must be widely distributed to all students, parents of elementary  and secondary students, employees, applicants for admission and employment,  and other relevant persons. OCR recommends that the notice be prominently postedon school Web sites and at various 

16 34 C.F.R. 	§ 106.9.17*Id.*§	106.8(a).18*Id*. 	§ 106.8(b).19*Id.*§ 	106.9(a).

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locations throughout the school or campus and published in electronic and  printed publications of general distribution that provide information to students  and employees about the school’s services and policies. The notice should be  available and easily accessible on an ongoing basis.

Title IX does not require a recipient to adopt a policy specifically prohibiting  sexual harassment or sexual violence. As noted in the *2001 Guidance*,  however, a recipient’s general policy prohibiting sex discrimination will not  be considered effective and would violate Title IX if, because of the lack  of a specific policy, students are unaware of what kind of conduct constitutes  sexual harassment, including sexual violence, or that such conduct is prohibited  sex discrimination. OCR therefore recommends that a recipient’s nondiscrimination  policy state that prohibited sex discrimination covers sexual harassment, including  sexual violence, and that the policy include examples of the types of conduct  that it covers. 

(B)*Title IX Coordinator*

The Title IX regulations require a recipient to notify all students and employees  of the name or title and contact information of the person designated to coordinate  the recipient’s compliance with Title IX.20 The  coordinator’s responsibilities include overseeing all Title IX complaints and  identifying and addressing any patterns or systemic problems that arise during  the review of such complaints. The Title IX coordinator or designee should  be available to meet with students as needed. If a recipient designates more  than one Title IX coordinator, the notice should describe each coordinator’s  responsibilities (*e.g.*, who will handle complaints by students, faculty,  and other employees). The recipient should designate one coordinator as having  ultimate oversight responsibility, and the other coordinators should have titles  clearly showing that they are in a deputy or supporting role to the senior  coordinator. The Title IX coordinators should not have other job responsibilities  that may create a conflict of interest. For example, serving as the Title IX  coordinator and a disciplinary hearing board member or general counsel may  create a conflict of interest. 

Recipients must ensure that employees designated to serve as Title IX coordinatorshave adequate training on what constitutes sexual harassment, including sexualviolence, and that they understand how the recipient’s grievance procedures operate.Because sexual violence complaints often are filed with the school’s law enforcementunit, all school law enforcement unit employees should receive training on theschool’s Title IX grievance procedures and any other procedures used for investigatingreports of sexual violence. In addition, these employees should receive copiesof the school’s Title IX policies. Schools should instruct law enforcement unitemployees both to notify complainants of their right to file a Title IX sex discriminationcomplaint with the school in addition to filing a criminal complaint, and toreport incidents of sexual violence to the Title IX coordinator if the complainantconsents. The school’s Title IX coordinator or designee should be available toprovide assistance to school law enforcement unit employees regarding how torespond appropriately to reports of sexual violence. The Title IX coordinatoralso should be given access to school law enforcement unit investigation notes

20*Id.*§106.8(a).

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and findings as necessary for the Title IX investigation, so long as it does  not compromise the criminal investigation. 

(C) *Grievance Procedures*

The Title IX regulations require all recipients to adopt and publish grievance  procedures providing for the prompt and equitable resolution of  sex discrimination complaints.21 The  grievance procedures must apply to sex discrimination complaints filed by students  against school employees, other students, or third parties. 

Title IX does not require a recipient to provide separate grievance procedures  for sexual harassment and sexual violence complaints. Therefore, a recipient  may use student disciplinary procedures or other separate procedures to resolve  such complaints. Any procedures used to adjudicate complaints of sexual harassment  or sexual violence, including disciplinary procedures, however, must meet the Title IX requirement of affording a complainant a    		  prompt and equitable resolution.22 These  requirements are discussed in greater detail below. If the recipient relies  on disciplinary procedures for Title IX compliance, the Title IX coordinator  should review the recipient’s disciplinary procedures to ensure that the procedures comply with the prompt and equitable requirements of Title IX.23

Grievance procedures generally may include voluntary informal mechanisms (*e.g.*,  mediation) for resolving some types of sexual harassment complaints. OCR has  frequently advised recipients, however, that it is improper for a student who  complains of harassment to be required to work out the problem directly with  the alleged perpetrator, and certainly not without appropriate involvement  by the school (*e.g.*, participation by a trained counselor, a trained  mediator, or, if appropriate, a teacher or administrator). In addition, as  stated in the *2001 Guidance*, 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. Moreover, in cases involving allegations of sexual assault,  mediation is not appropriate even on a voluntary basis. OCR recommends that  recipients clarify in their grievance procedures that mediation will not beused to resolve sexual assault complaints.

21*Id.*§	106.8(b). Title IX also requires recipients to adopt and publish grievance	procedures for employee complaints of sex discrimination.22 These procedures	must apply to all students, including athletes. If a complaint of sexual	violence involves a student athlete, the school must follow its standard procedures	for resolving sexual violence complaints. Such complaints must not be addressed	solely by athletics department procedures. Additionally, if an alleged perpetrator	is an elementary or secondary student with a disability, schools must follow	the procedural safeguards in the Individuals with Disabilities Education	Act (at 20 U.S.C. § 1415 and 34 C.F.R. §§ 300.500-300.519, 300.530-300.537)	as well as the requirements of Section 504 of the Rehabilitation Act of 1973	(at 34 C.F.R. §§ 104.35-104.36) when conducting the investigation and hearing.23 A school	may not absolve itself of its Title IX obligations to investigate and resolve	complaints of sexual harassment or violence by delegating, whether through express	contractual agreement or other less formal arrangement, the responsibility to	administer school discipline to school resource officers or “contract” law enforcement	officers. *See*34 C.F.R. § 106.4. 

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*Prompt and Equitable Requirements*

As stated in the *2001 Guidance*, OCR has identified a number of elements  in evaluating whether a school’s grievance procedures provide for prompt and  equitable resolution of sexual harassment complaints. These elements also apply  to sexual violence complaints because, as explained above, sexual violence  is a form of sexual harassment. OCR will review all aspects of a school’s grievance  procedures, including the following elements that are critical to achieve compliance  with Title IX: 

- Notice to students, parents of elementary and secondary students, and employees    of the grievance procedures, including where complaints may be filed;
- Application of the procedures to complaints alleging harassment carried    out by employees, other students, or third parties;
- Adequate, reliable, and impartial investigation of complaints, including    the opportunity for both parties to present witnesses and other evidence;
- Designated and reasonably prompt time frames for the major stages of the    complaint process;
- Notice to parties of the outcome of the complaint;  24  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. 

As noted in the *2001 Guidance*, procedures adopted by schools will  vary in detail, specificity, and components, reflecting differences in the  age of students, school sizes and administrative structures, State or local  legal requirements, and past experiences. Although OCR examines whether all  applicable elements are addressed when investigating sexual harassment complaints,  this letter focuses on those elements where our work indicates that more clarification  and explanation are needed, including: 

(A) *Notice of the grievance procedures*

The procedures for resolving complaints of sex discrimination, including sexual  harassment, should be written in language appropriate to the age of the school’s  students, easily understood, easily located, and widely distributed. OCR recommends  that the grievance procedures be prominently posted on school Web sites; sent  electronically to all members of the school community; available at various  locations throughout the school or campus; and summarized in or attached to  major publications issued by the school, such as handbooks, codes of conduct,  and catalogs for students, parents of elementary and secondary students, faculty,  and staff.

(B) *Adequate, Reliable, and Impartial Investigation of Complaints*

OCR’s work indicates that a number of issues related to an adequate, reliable,and impartial investigation arise in sexual harassment and violence complaints.In some cases, the conduct

24 “Outcome”  does not refer to information about disciplinary sanctions unless otherwisenoted. Notice of the outcome is discussed in greater detail in Section D below.

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may constitute both sexual harassment under Title IX and criminal activity.  Police investigations may be useful for fact-gathering; but because the standards  for criminal investigations are different, police investigations or reports  are not determinative of whether sexual harassment or violence violates Title  IX. Conduct may constitute unlawful sexual harassment under Title IX even if  the police do not have sufficient evidence of a criminal violation. In addition,  a criminal investigation into allegations of sexual violence does not relieve  the school of its duty under Title IX to resolve complaints promptly and equitably. 

A school should notify a complainant of the right to file a criminal complaint,  and should not dissuade a victim from doing so either during or after the school’s  internal Title IX investigation. For instance, if a complainant wants to file  a police report, the school should not tell the complainant that it is working  toward a solution and instruct, or ask, the complainant to wait to file the  report. 

Schools should not wait for the conclusion of a criminal investigation or  criminal proceeding to begin their own Title IX investigation and, if needed,  must take immediate steps to protect the student in the educational setting.  For example, a school should not delay conducting its own investigation or  taking steps to protect the complainant because it wants to see whether the  alleged perpetrator will be found guilty of a crime. Any agreement or Memorandum  of Understanding (MOU) with a local police department must allow the school  to meet its Title IX obligation to resolve complaints promptly and equitably.  Although a school may need to delay temporarily the fact-finding portion of  a Title IX investigation while the police are gathering evidence, once notified  that the police department has completed its gathering of evidence (not the  ultimate outcome of the investigation or the filing of any charges), the school must promptly resume and complete its fact-finding for the Title IX investigation.25 Moreover,  nothing in an MOU or the criminal investigation itself should prevent a school  from notifying complainants of their Title IX rights and the school’s grievance  procedures, or from taking interim steps to ensure the safety and well-being  of the complainant and the school community while the law enforcement agency’s  fact-gathering is in progress. OCR also recommends that a school’s MOU include  clear policies on when a school will refer a matter to local law enforcement.

As noted above, the Title IX regulation requires schools to provide equitablegrievance procedures. As part of these procedures, schools generally conductinvestigations and hearings to determine whether sexual harassment or violenceoccurred. In addressing complaints filed with OCR under Title IX, OCR reviewsa school’s procedures to determine whether the school is using a preponderanceof the evidence standard to evaluate complaints. The Supreme Court has applieda preponderance of the evidence standard in civil litigation involving discriminationunder Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e *etseq.* Like Title IX,

25 In  one recent OCR sexual violence case, the prosecutor’s office informed OCR that  the police department’s evidence gathering stage typically takes three to ten  calendar days, although the delay in the school’s investigation may be longerin certain instances.

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Title VII prohibits discrimination on the basis of sex.26 OCR  also uses a preponderance of the evidence standard when it resolves complaints  against recipients. For instance, OCR’s Case Processing Manual requires that  a noncompliance determination be supported by the preponderance of the evidence  when resolving allegations of discrimination under all the statutes enforced  by OCR, including Title IX.27 OCR  also uses a preponderance of the evidence standard in its fund termination  administrative hearings.28 Thus,  in order for a school’s grievance procedures to be consistent with Title IX  standards, the school must use a preponderance of the evidence standard (*i.e.*,  it is more likely than not that sexual harassment or violence occurred). The  “clear and convincing” standard (*i.e.*, it is highly probable or reasonably  certain that the sexual harassment or violence occurred), currently used by  some schools, is a higher standard of proof. Grievance procedures that use  this higher standard are inconsistent with the standard of proof established  for violations of the civil rights laws, and are thus not equitable under Title  IX. Therefore, preponderance of the evidence is the appropriate standard for  investigating allegations of sexual harassment or violence. 

Throughout a school’s Title IX investigation, including at any hearing, the partiesmust have an equal opportunity to present relevant witnesses and other evidence.The complainant and the alleged perpetrator must be afforded similar and timelyaccess to any information that will be used at the hearing.29 Forexample, a school should not conduct a pre-hearing meeting during which onlythe alleged perpetrator is present and given an opportunity to present his orher side of the story, unless a similar meeting takes place with the complainant;a hearing officer or disciplinary board should not allow only the alleged perpetratorto present character witnesses at a hearing; and a school should not allow thealleged perpetrator to review the complainant’s

26*See*, *e.g.*, *Desert	Palace, Inc. v. Costa*,539 U.S. 90, 99 (2003) (noting that under the “conventional	rule of civil litigation,” the preponderance of the evidence standard generally	applies in cases under Title VII); *Price Waterhouse v. Hopkins*,490	U.S. 228, 252-55 (1989) (approving preponderance standard in Title VII sex	discrimination case) (plurality opinion); *id.*at 260 (White, J., concurring	in the judgment); *id.*at 261 (O’Connor, J., concurring in the judgment).	The *2001	Guidance* noted (on page vi) that “[w]hile *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.” *See also**Jennings v. Univ. of N.C.*, 482 F.3d 686,	695 (4th Cir. 2007) (“We look to case law interpreting Title VII of the Civil	Rights Act of 1964 for guidance in evaluating a claim brought under Title	IX.”).27 OCR’s Case Processing Manual is available on the Department’s Web site, at http://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.html.28 The Title	IX regulations adopt the procedural provisions applicable to Title VI of	the Civil Rights Act of 1964. *See*34 C.F.R. § 106.71 (“The procedural	provisions applicable to Title VI of the Civil Rights Act of 1964 are hereby	adopted and incorporated herein by reference.”). The Title VI regulations apply	the Administrative Procedure Act to administrative hearings required prior to	termination of Federal financial assistance and require that termination decisions	be “supported by and in accordance with the reliable, probative and substantial	evidence.” 5 U.S.C. § 556(d). The Supreme Court has interpreted “reliable, probative andsubstantial evidence” as a direction to use the preponderance standard. *SeeSteadman v. SEC*, 450 U.S. 91, 98-102 (1981).29 Access    to this information must be provided consistent with FERPA. For example,    if a school introduces an alleged perpetrator’s prior disciplinary records    to support a tougher disciplinary penalty, the complainant would not be allowed    access to those records. Additionally, access should not be given to privileged    or confidential information. For example, the alleged perpetrator should    not be given access to communications between the complainant and a counselor    or information regarding the complainant’s sexual history.

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statement without also allowing the complainant to review the alleged perpetrator’s  statement. 

While OCR does not require schools to permit parties to have lawyers at any  stage of the proceedings, if a school chooses to allow the parties to have  their lawyers participate in the proceedings, it must do so equally for both  parties. Additionally, any school-imposed restrictions on the ability of lawyers  to speak or otherwise participate in the proceedings should apply equally.  OCR strongly discourages schools from allowing the parties personally to question  or cross-examine each other during the hearing. Allowing an alleged perpetrator  to question an alleged victim directly may be traumatic or intimidating, thereby  possibly escalating or perpetuating a hostile environment. OCR also recommends  that schools provide an appeals process. If a school provides for appeal of  the findings or remedy, it must do so for both parties. Schools must maintain  documentation of all proceedings, which may include written findings of facts,  transcripts, or audio recordings. 

All persons involved in implementing a recipient’s grievance procedures (*e.g.*,  Title IX coordinators, investigators, and adjudicators) must have training  or experience in handling complaints of sexual harassment and sexual violence,  and in the recipient’s grievance procedures. The training also should include  applicable confidentiality requirements. In sexual violence cases, the fact-finder  and decision-maker also should have adequate training or knowledge regarding  sexual violence.30 Additionally,  a school’s investigation and hearing processes cannot be equitable unless they  are impartial. Therefore, any real or perceived conflicts of interest between  the fact-finder or decision-maker and the parties should be disclosed.

Public and state-supported schools must provide due process to the alleged  perpetrator. However, schools should ensure that steps taken to accord due  process rights to the alleged perpetrator do not restrict or unnecessarily  delay the Title IX protections for the complainant. 

(C) *Designated and Reasonably Prompt Time Frames*

OCR will evaluate whether a school’s grievance procedures specify the time frames  for all major stages of the procedures, as well as the process for extending  timelines. Grievance procedures should specify the time frame within which: (1)  the school will conduct a full investigation of the complaint; (2) both parties  receive a response regarding the outcome of the complaint; and (3) the parties  may file an appeal, if applicable. Both parties should be given periodic status  updates. Based on OCR experience, a typical investigation takes approximately  60 calendar days following receipt of the complaint. Whether OCR considers complaint  resolutions to be timely, however, will vary depending on the complexity of the  investigation and the severity and extent of the harassment. For example, the  resolution of a complaint involving multiple incidents with multiple complainants  likely would take longer than one involving a single incident that 

30 For  instance, if an investigation or hearing involves forensic evidence, that evidenceshould be reviewed by a trained forensic examiner. 

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occurred in a classroom during school hours with a single complainant. 

(D) *Notice of Outcome*

Both parties must be notified, in writing, about the outcome of both the complaint  and any appeal,31*i.e.*,  whether harassment was found to have occurred. OCR recommends that schools  provide the written determination of the final outcome to the complainant and  the alleged perpetrator concurrently. Title IX does not require the school  to notify the alleged perpetrator of the outcome before it notifies the complainant. 

Due to the intersection of Title IX and FERPA requirements, OCR recognizes  that there may be confusion regarding what information a school may disclose  to the complainant.32 FERPA  generally prohibits the nonconsensual disclosure of personally identifiable  information from a student’s “education record.” However, as stated in the *2001  Guidance*, FERPA permits a school to disclose to the harassed student information  about the sanction imposed upon a student who was found to have engaged in  harassment when the sanction directly relates to the harassed student. This  includes an order that the harasser stay away from the harassed student, or  that the harasser is prohibited from attending school for a period of time,  or transferred to other classes or another residence hall.33 Disclosure  of other information in the student’s “education record,” including information  about sanctions that do not relate to the harassed student, may result in a  violation of FERPA. 

Further, when the conduct involves a crime of violence or a non-forcible sexoffense,34 FERPA permitsa postsecondary institution to disclose to the alleged victim the final resultsof a

31 As noted previously,“outcome” does not refer to information about disciplinary sanctions unless otherwisenoted. 32 In 1994, Congressamended the General Education Provisions Act (GEPA), of which FERPA is a part,to state that nothing in GEPA “shall be construed to affect the applicabilityof title VI of the Civil Rights Act of 1964, title IX of Education Amendmentsof 1972, title V of the Rehabilitation Act of 1973, the Age Discrimination Act,or other statutes prohibiting discrimination, to any applicable program.” 20U.S.C. § 1221(d). The Department interprets this provision to mean that FERPAcontinues to apply in the context of Title IX enforcement, but if there is adirect conflict between the requirements of FERPA and the requirements of TitleIX, such that enforcement of FERPA would interfere with the primary purpose ofTitle IX to eliminate sex-based discrimination in schools, the requirements ofTitle IX override any conflicting FERPA provisions. *See 2001 Guidance*atvii.33 This informationdirectly relates to the complainant and is particularly important in sexual harassmentcases because it affects whether a hostile environment has been eliminated. Becauseseeing the perpetrator may be traumatic, a complainant in a sexual harassmentcase may continue to be subject to a hostile environment if he or she does notknow when the perpetrator will return to school or whether he or she will continueto share classes or a residence hall with the perpetrator. This information alsodirectly affects a complainant’s decision regarding how to work with the schoolto eliminate the hostile environment and prevent its recurrence. For instance,if a complainant knows that the perpetrator will not be at school or will betransferred to other classes or another residence hall for the rest of the year,the complainant may be less likely to want to transfer to another school or changeclasses, but if the perpetrator will be returning to school after a few daysor weeks, or remaining in the complainant’s classes or residence hall, the complainantmay want to transfer schools or change classes to avoid contact. Thus, the complainantcannot make an informed decision about how best to respond without this information. 34 Under theFERPA regulations, crimes of violence include arson; assault offenses (aggravatedassault, simple assault, intimidation); burglary; criminal homicide (manslaughterby negligence); criminal homicide (murder and non-negligent manslaughter); destruction,damage or vandalism of property; kidnapping/abduction; robbery; and forciblesex offenses. Forcible sex offenses are defined as any sexual act directed againstanother person forcibly or against that person’s will, or not forcibly or againstthe person’s will where the victim is incapable of giving consent. Forcible sexoffenses include rape, sodomy, sexual assault with an object, and forcible fondling.Non-forcible sex offenses are incest and statutory rape. 34 C.F.R. Part 99, App.A.

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disciplinary proceeding against the alleged perpetrator, regardless of whether  the institution concluded that a violation was committed.35 Additionally,  a postsecondary institution may disclose to anyone—not just the alleged victim—the  final results of a disciplinary proceeding if it determines that the student  is an alleged perpetrator of a crime of violence or a non-forcible sex offense,  and, with respect to the allegation made, the student has committed a violation  of the institution’s rules or policies.36

Postsecondary institutions also are subject to additional rules under the  Clery Act. This law, which applies to postsecondary institutions that participate  in Federal student financial aid programs, requires that “both the accuser and the accused must be informed of the outcome37 of any institutional disciplinary proceeding brought alleging a sex offense.”38 Compliance  with this requirement does not constitute a violation of FERPA. Furthermore,  the FERPA limitations on redisclosure of information do not apply to information that postsecondary institutions are required to disclose under the Clery Act.39 Accordingly,  postsecondary institutions may not require a complainant to abide by a nondisclosure  agreement, in writing or otherwise, that would prevent the redisclosure of  this information. 

**Steps to Prevent Sexual Harassment and Sexual Violence and Correctits Discriminatory Effects on the Complainant and Others**

**Education and Prevention**

In addition to ensuring full compliance with Title IX, schools should take proactivemeasures to prevent sexual harassment and violence. OCR recommends that all schoolsimplement preventive education programs and make victim resources, includingcomprehensive victim services, available. Schools may want to include these educationprograms in their (1) orientation programs for new students, faculty, staff,and employees; (2) training for students who serve as advisors in residence halls; (3) training for student athletes and coaches; and (4) school assemblies and“back to school nights.” These programs should include a 

35 34 C.F.R.	§ 99.31(a)(13). For purposes of 34 C.F.R. §§ 99.31(a)(13)-(14), disclosure	of “final results” is limited to the name of the alleged perpetrator, any violation	found to have been committed, and any sanction imposed against the perpetrator	by the school. 34 C.F.R. § 99.39.36 34 C.F.R.	§ 99.31(a)(14).37 For purposes	of the Clery Act, “outcome” means the institution’s final determination with	respect to the alleged sex offense and any sanctions imposed against the	accused. 34 C.F.R. § 668.46(b)(11)(vi)(B).38 34 C.F.R.	§ 668.46(b)(11)(vi)(B). Under the Clery Act, forcible sex offenses are	defined as any sexual act directed against another person forcibly or against	that person’s will, or not forcibly or against the person’s will where the person	is incapable of giving consent. Forcible sex offenses include forcible rape,	forcible sodomy, sexual assault with an object, and forcible fondling. Non-forcible	sex offenses include incest and statutory rape. 34 C.F.R. Part 668, Subpt. D,	App. A.39 34 C.F.R.	§ 99.33(c).

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discussion of what constitutes sexual harassment and sexual violence, the  school’s policies and disciplinary procedures, and the consequences of violating  these policies. 

The education programs also should include information aimed at encouraging  students to report incidents of sexual violence to the appropriate school and  law enforcement authorities. Schools should be aware that victims or third  parties may be deterred from reporting incidents if alcohol, drugs, or other  violations of school or campus rules were involved.40 As  a result, schools should consider whether their disciplinary policies have  a chilling effect on victims’ or other students’ reporting of sexual violence  offenses. For example, OCR recommends that schools inform students that the  schools’ primary concern is student safety, that any other rules violations  will be addressed separately from the sexual violence allegation, and that  use of alcohol or drugs never makes the victim at fault for sexual violence.

OCR also recommends that schools develop specific sexual violence materials  that include the schools’ policies, rules, and resources for students, faculty,  coaches, and administrators. Schools also should include such information in  their employee handbook and any handbooks that student athletes and members  of student activity groups receive. These materials should include where and  to whom students should go if they are victims of sexual violence. These materials  also should tell students and school employees what to do if they learn of  an incident of sexual violence. Schools also should assess student activities  regularly to ensure that the practices and behavior of students do not violate  the schools’ policies against sexual harassment and sexual violence. 

**Remedies and Enforcement**

As discussed above, if a school determines that sexual harassment that creates  a hostile environment has occurred, it must take immediate action to eliminate  the hostile environment, prevent its recurrence, and address its effects. In  addition to counseling or taking disciplinary action against the harasser,  effective corrective action may require remedies for the complainant, as well  as changes to the school’s overall services or policies. Examples of these  actions are discussed in greater detail below.

Title IX requires a school to take steps to protect the complainant as necessary,including taking interim steps before the final outcome of the investigation.The school should undertake these steps promptly once it has notice of a sexualharassment or violence allegation. The school should notify the complainant ofhis or her options to avoid contact with the alleged perpetrator and allow studentsto change academic or living situations as appropriate. For instance, the schoolmay prohibit the alleged perpetrator from having any contact with the complainantpending the results of the school’s investigation. When taking steps to separatethe complainant and alleged perpetrator, a school should minimize the burdenon the

40 The  Department’s Higher Education Center for Alcohol, Drug Abuse, and Violence  Prevention (HEC) helps campuses and communities address problems of alcohol,  other drugs, and violence by identifying effective strategies and programs  based upon the best prevention science. Information on HEC resources and technicalassistance can be found at www.higheredcenter.org.

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complainant, and thus should not, as a matter of course, remove complainants  from classes or housing while allowing alleged perpetrators to remain. In addition,  schools should ensure that complainants are aware of their Title IX rights  and any available resources, such as counseling, health, and mental health services, and their right to file a complaint with local law enforcement.41

  Schools should be aware that complaints of sexual harassment or violence may  be followed by retaliation by the alleged perpetrator or his or her associates.  For instance, friends of the alleged perpetrator may subject the complainant  to name-calling and taunting. As part of their Title IX obligations, schools  must have policies and procedures in place to protect against retaliatory harassment.  At a minimum, schools must ensure that complainants and their parents, if appropriate,  know how to report any subsequent problems, and should follow-up with complainants  to determine whether any retaliation or new incidents of harassment have occurred.

When OCR finds that a school has not taken prompt and effective steps to respond  to sexual harassment or violence, OCR will seek appropriate remedies for both  the complainant and the broader student population. When conducting Title IX  enforcement activities, OCR seeks to obtain voluntary compliance from recipients.  When a recipient does not come into compliance voluntarily, OCR may initiate  proceedings to withdraw Federal funding by the Department or refer the case  to the U.S. Department of Justice for litigation. 

Schools should proactively consider the following remedies when determining  how to respond to sexual harassment or violence. These are the same types of  remedies that OCR would seek in its cases. 

Depending on the specific nature of the problem, remedies for the complainant  might include, but are not limited to:42

- providing an escort to ensure that the complainant can move safely between  classes and activities;
- ensuring that the complainant and alleged perpetrator do not attend the    same classes;
- moving the complainant or alleged perpetrator to a different residence    hall or, in the case of an elementary or secondary school student, to another    school within the district;
- providing counseling services;
- providing medical services; 
- providing academic support services, such as tutoring; 

41 The Clery	Act requires postsecondary institutions to develop and distribute a statement	of policy that informs students of their options to notify proper law enforcement	authorities, including campus and local police, and the option to be assisted	by campus personnel in notifying such authorities. The policy also must notify	students of existing counseling, mental health, or other student services	for victims of sexual assault, both on campus and in the community. 20 U.S.C.	§§ 1092(f)(8)(B)(v)-(vi).42 Some of these	remedies also can be used as interim measures before the school’s investigation	is complete.

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- arranging for the complainant to re-take a course or withdraw from a class    without penalty, including ensuring that any changes do not adversely affect    the complainant’s academic record; and
- reviewing any disciplinary actions taken against the complainant to see if there is a causal connection between the harassment and the misconduct that may have resulted in the complainant   being disciplined.  43   

Remedies for the broader student population might include, but are not limited  to:*Counseling and Training*

- offering counseling, health, mental health, or other holistic and comprehensive    victim services to all students affected by sexual harassment or sexual violence,    and notifying students of campus and community counseling, health, mental    health, and other student services; 
- designating an individual from the school’s counseling center to be “on    call” to assist victims of sexual harassment or violence whenever needed;
- training the Title IX coordinator and any other employees who are involved    in processing, investigating, or resolving complaints of sexual harassment    or sexual violence, including providing training on: 
the school’s Title IX responsibilities to address allegations of sexual      harassment or violence 
how to conduct Title IX investigations 
information on the link between alcohol and drug abuse and sexual harassment      or violence and best practices to address that link;

- training all school law enforcement unit personnel on the school’s Title    IX responsibilities and handling of sexual harassment or violence complaints;
- training all employees who interact with students regularly on recognizing    and appropriately addressing allegations of sexual harassment or violence    under Title IX; and
- informing students of their options to notify proper law enforcement authorities,    including school and local police, and the option to be assisted by school    employees in notifying those authorities.

*Development of Materials and Implementation of Policies and Procedures*

- developing materials on sexual harassment and violence, which should be    distributed to students during orientation and upon receipt of complaints,    as well as widely posted throughout school buildings and residence halls,    and which should include: 
what constitutes sexual harassment or violence 
what to do if a student has been the victim of sexual harassment or violence 
contact information for counseling and victim services on and off school      grounds 
how to file a complaint with the school 
how to contact the school’s Title IX coordinator

43 For  example, if the complainant was disciplined for skipping a class in which the  harasser was enrolled, the school should review the incident to determine ifthe complainant skipped the class to avoid contact with the harasser.

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what the school will do to respond to allegations of sexual harassment      or violence, including the interim measures that can be taken

- requiring the Title IX coordinator to communicate regularly with the school’s    law enforcement unit investigating cases and to provide information to law    enforcement unit personnel regarding Title IX requirements;  44
- requiring the Title IX coordinator to review all evidence in a sexual harassment    or sexual violence case brought before the school’s disciplinary committee    to determine whether the complainant is entitled to a remedy under Title    IX that was not available through the disciplinary committee;  45
- requiring the school to create a committee of students and school officials    to identify strategies for ensuring that students:
know the school’s prohibition against sex discrimination, including sexual      harassment and violence
recognize sex discrimination, sexual harassment, and sexual violence      when they occur
understand how and to whom to report any incidents
know the connection between alcohol and drug abuse and sexual harassment      or violence
feel comfortable that school officials will respond promptly and equitably      to reports of sexual harassment or violence;

- issuing new policy statements or other steps that clearly communicate that    the school does not tolerate sexual harassment and violence and will respond    to any incidents and to any student who reports such incidents; and
- revising grievance procedures used to handle sexual harassment and violence    complaints to ensure that they are prompt and equitable, as required by Title    IX.

*School Investigations and Reports to OCR*

- conducting periodic assessments of student activities to ensure that the    practices and behavior of students do not violate the school’s policies against    sexual harassment and violence;
- investigating whether any other students also may have been subjected to    sexual harassment or violence;
- investigating whether school employees with knowledge of allegations of    sexual harassment or violence failed to carry out their duties in responding    to those allegations; 
- conducting, in conjunction with student leaders, a school or campus “climate    check” to assess the effectiveness of efforts to ensure that the school is    free from sexual harassment and violence, and using the resulting information    to inform future proactive steps that will be taken by the school; and

44 Any personally	identifiable information from a student’s education record that the Title	IX coordinator provides to the school’s law enforcement unit is subject to	FERPA’s nondisclosure requirements.45 For example,    the disciplinary committee may lack the power to implement changes to the    complainant’s class schedule or living situation so that he or she does not    come in contact with the alleged perpetrator.

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- submitting to OCR copies of all grievances filed by students alleging sexual    harassment or violence, and providing OCR with documentation related to the    investigation of each complaint, such as witness interviews, investigator    notes, evidence submitted by the parties, investigative reports and summaries,    any final disposition letters, disciplinary records, and documentation regarding    any appeals.

**Conclusion**

The Department is committed to ensuring that all students feel safe and have  the opportunity to benefit fully from their schools’ education programs and  activities. As part of this commitment, OCR provides technical assistance to  assist recipients in achieving voluntary compliance with Title IX.   If you need additional information about Title IX, have questions regarding  OCR’s policies, or seek technical assistance, please contact the OCR enforcement  office that serves your state or territory. The list of offices is available  at http://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm.  Additional information about addressing sexual violence, including victim resources  and information for schools, is available from the U.S. Department of Justice’s Office on Violence Against Women (OVW) at http://www.ovw.usdoj.gov/.46  Thank you for your prompt attention to this matter. I look forward to continuing  our work together to ensure that all students have an equal opportunity to  learn in a safe and respectful school climate. 

|   | Sincerely,                                   |
|--------|----------------------------------------------|
|   | /s/                                          |   |
|   | Russlynn Ali                                 |
|   | Assistant Secretary        for  Civil Rights |

46 OVW  also administers the Grants to Reduce Domestic Violence, Dating Violence, Sexual  Assault, and Stalking on Campus Program. This Federal funding is designed to  encourage institutions of higher education to adopt comprehensive, coordinated  responses to domestic violence, dating violence, sexual assault, and stalking.  Under this competitive grant program, campuses, in partnership with community-based  nonprofit victim advocacy organizations and local criminal justice or civil  legal agencies, must adopt protocols and policies to treat these crimes as  serious offenses and develop victim service programs and campus policies that  ensure victim safety, offender accountability, and the prevention of such crimes.  OVW recently released the first solicitation for the Services, Training, Education,  and Policies to Reduce Domestic Violence, Dating Violence, Sexual Assault and  Stalking in Secondary Schools Grant Program. This innovative grant program  will support a broad range of activities, including training for school administrators,  faculty, and staff; development of policies and procedures for responding to  these crimes; holistic and appropriate victim services; development of effective  prevention strategies; and collaborations with mentoring organizations to supportmiddle and high school student victims.