[Federal Register Volume 65, Number 213 (Thursday, November 2, 2000)]
[Notices]
[Pages 66092-66114]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-27910]



[[Page 66091]]

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Part III





Department of Education





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Revised Sexual Harassment Guidance: Harassment of Students by School 
Employees, Other Students, or Third Parties; Notice

Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / 
Notices

[[Page 66092]]


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DEPARTMENT OF EDUCATION


Revised Sexual Harassment Guidance: Harassment of Students by 
School Employees, Other Students, or Third Parties

AGENCY: Office for Civil Rights, Department of Education.

ACTION: Request for comments.

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SUMMARY: The Assistant Secretary for Civil Rights, U.S. Department of 
Education (Department), is proposing to issue a new document that would 
replace the 1997 document entitled ``Sexual Harassment Guidance: 
Harassment of Students by School Employees, Other Students, or Third 
Parties,'' issued by the Office for Civil Rights (OCR) on March 13, 
1997 (1997 guidance). We are revising the guidance in limited respects 
in light of recent Supreme Court cases relating to sexual harassment in 
schools.
    We intend the proposed revised guidance to serve the same purpose 
as the 1997 guidance. It continues to provide educational institutions 
with guidance about the standards under Title IX of the Education 
Amendments of 1972 (Title IX) that we use, and that institutions should 
use, to investigate and resolve allegations of sexual harassment of 
students.
    We request from all interested parties written comments on the 
portions of the guidance revised to address the Supreme Court 
decisions.

DATES: We must receive your comments on or before December 4, 2000.

ADDRESSES: Address all comments regarding the revised guidance to 
Jeanette J. Lim, U.S. Department of Education, Office for Civil Rights, 
400 Maryland Avenue, SW., room 5036 Switzer Building, Washington, DC 
20202-1100. For all comments submitted by letter, you must include the 
term ``Sexual Harassment Guidance Comments.'' If you prefer to send 
your comments through the Internet, use the following address: 
<a href="/cdn-cgi/l/email-protection#244b47566441400a434b52"><span class="__cf_email__" data-cfemail="0d626e7f4d6869236a627b">[email protected]</span></a>.
    You must include the term ``Sexual Harassment Guidance Comments'' 
in the subject line of your electronic message.

FOR FURTHER INFORMATION CONTACT: Jeanette J. Lim. Telephone: (202) 205-
5557 or 1-800-421-3481. If you use a telecommunications device for the 
deaf (TDD), you may call the TDD number at (202) 260-0471.
    For additional copies of this document, individuals may call OCR's 
Customer Service Team at (202) 205-5557 or toll-free at 1-800-421-3481.
    Individuals with disabilities may obtain this document in an 
alternative format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to OCR's Customer Service Team listed in the 
preceding paragraph.

SUPPLEMENTARY INFORMATION:

Invitation To Comment

    We invite you to submit comments regarding the proposed revised 
guidance in Appendix A that relates to the revisions made to address 
recent Supreme Court decisions.
    During and after the comment period, you may inspect all public 
comments about this proposed revised guidance in room 5036, 330 C 
Street, SW., Washington, DC, between the hours of 9:30 a.m. and 5:00 
p.m., Eastern time, Monday through Friday of each week except Federal 
holidays.

Assistance to Individuals With Disabilities in Reviewing the Public 
Record

    On request, we will supply an appropriate aid, such as a reader or 
print magnifier, to an individual with a disability who needs 
assistance to review the comments or other documents in the public 
record for this proposed guidance. If you want to schedule an 
appointment for this type of aid, you may call (202) 205-8113 or (202) 
260-9895. If you use a TDD, you may call the Federal Information Relay 
Service at 1-800-877-8339.

Purpose and Scope of the Revised Guidance

    In March 1997, we published ``Sexual Harassment Guidance: 
Harassment of Students by School Employees, Other Students, or Third 
Parties'' (62 FR 12034). We issued the guidance pursuant to our 
authority under Title IX, and our Title IX implementing regulations, to 
eliminate discrimination based on sex in education programs and 
activities receiving Federal financial assistance. It was grounded in 
longstanding legal authority establishing that sexual harassment of 
students can be a form of sex discrimination and is covered by Title 
IX. It was the product of extensive consultation with interested 
parties, including students, teachers, school administrators, and 
researchers regarding the realities of sexual harassment and best 
practices for responding to and preventing sexual harassment. We also 
made the document available for public comment.
    Since the issuance of the guidance, the Supreme Court (Court) has 
issued several important decisions in sexual harassment cases, 
including two decisions specifically addressing sexual harassment of 
students: Gebser v. Lago Vista Independent School District (Gebser), 
524 U.S. 274 (1998), and Davis v. Monroe County Board of Education 
(Davis), 526 U.S. 629 (1999). In an August 1998 letter to school 
superintendents and a January 1999 letter to college and university 
presidents, the Secretary of Education informed school officials that 
the Gebser decision did not change schools' obligations to take 
reasonable steps to prevent and eliminate sexual harassment as a 
condition of their receipt of Federal funding. In most important 
respects, the substance of the 1997 guidance was reaffirmed in the 
Court's opinions in Gebser and Davis, but we have determined that in 
certain areas the 1997 guidance could be strengthened by further 
clarification and explanation of the regulatory basis for the guidance.
    We are, therefore, issuing this proposed revised guidance. The 
scope of the revisions is limited. They are intended to reaffirm our 
standards regarding sexual harassment, to clarify the regulatory basis 
for the 1997 guidance, and to illustrate how and why the administrative 
enforcement of Title IX's nondiscrimination requirements differs from 
private lawsuits for money damages. In making clarifications to the 
guidance flowing from the Supreme Court decisions, we also have taken 
the opportunity to make a few additional clarifications that we believe 
will be helpful to schools, including clarifying some examples from the 
1997 guidance and adding some additional examples to illustrate the 
Title IX standards discussed in the guidance. It is important to note 
that these are just examples. Neither they nor the proposed revised 
guidance create new Title IX standards.

Title IX  Compliance Standard

    In Gebser and Davis, the Supreme Court addressed for the first time 
the appropriate standards for determining when a school district is 
liable under Title IX for money damages in a private lawsuit brought by 
a student who has been sexually harassed.
    <bullet> 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.
    <bullet> In Davis, the Court announced that a school also may be 
liable for monetary damages if one student sexually harasses another 
student in the recipient's program and the conditions of Gebser are 
met, i.e., an official who has authority to address the harassment

[[Page 66093]]

has actual knowledge of the harassment and is deliberately indifferent 
in responding to the harassment. The Court also clarified that 
deliberate indifference means that ``the recipient's response to the 
harassment or lack thereof is clearly unreasonable in light of the 
known circumstances.'' Davis, 526 U.S. at 648.
    The Court was explicit in Gebser and Davis that the liability 
standards established in these cases are limited to private actions for 
monetary damages. See, e.g., Gebser, 524 U.S. 283, and Davis, 526 U.S. 
at 639. The Court acknowledged, by contrast, the power of Federal 
agencies such as the Department to ``promulgate and enforce 
requirements that effectuate [Title IX's] nondiscrimination mandate,'' 
even in circumstances that would not give rise to a claim for money 
damages. See Gebser, 524 U.S. at 292.
    The Gebser Court further explained that the standard for obtaining 
damages in private actions was grounded in its ``central concern'' 
arising out of the contractual nature of Title IX--that by accepting 
Federal funds, a recipient does not unintentionally expose itself to a 
large monetary damage award for discrimination of which it was unaware 
and which it would have been willing to correct (524 U.S. at 287). 
Under the Court's rulings, liability for money damages arising out of 
sexual harassment of students, either by employees or by other 
students, cannot arise unless the school has actual notice of the 
harassing conduct and is deliberately indifferent in response.
    The Gebser Court recognized and contrasted lawsuits for money 
damages with the incremental nature of administrative enforcement of 
Title IX by Federal agencies, such as the Department's Office for Civil 
Rights (OCR). Under our Title IX regulations, we must first investigate 
complaints and determine whether our investigation ``indicates a 
failure to comply'' with the statute or regulations. If it does, we 
must attempt to secure compliance by voluntary means. This may include 
requiring the school to take remedial action necessary to overcome the 
effects of the discrimination (Gebser, 524 U.S. at 288 (citing the 
Department's regulations in 34 CFR 106.3)). Only if that fails, and the 
recipient is provided both an opportunity for a hearing and express 
findings of its failure to comply, will the recipient face the 
possibility of the loss of continued Federal funding. See 34 CFR 
106.71, 100.8, 100.9. In contrast to the Court's concerns in Gebser 
about the possibility of an award of money damages in a private lawsuit 
for harassment the recipient had not known about, fund termination 
under administrative enforcement comes only after the recipient has 
notice of a violation and an opportunity to correct it (Gebser, 524 
U.S. at 289). In addition, the financial sanction under administrative 
enforcement is limited to termination of, or refusal to grant or 
continue, Federal assistance (Gebser, 524 U.S. at 290). As recognized 
by the Court in Gebser, 524 U.S. at 287-292, our enforcement actions, 
therefore, do not raise the Court's concern that a school district not 
be held liable for large damage awards for past acts of which it was 
unaware.\1\ Moreover, the Court's discussion makes clear that under 
this incremental administrative enforcement scheme, we identify a 
violation of Title IX or the Title IX regulations, and a school is 
obligated to take corrective action in response to this violation, at a 
point before either the statutorily required conditions applicable to 
termination of funds or the Court-mandated conditions applicable to 
obtaining money damages in private litigation have necessarily been 
satisfied. See Gebser, 524 U.S. at 287-292.
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    \1\ It is the position of the United States Government that the 
standards set out in OCR's guidance for finding a violation and 
seeking voluntary corrective action also would apply to private 
actions for injunctive and other equitable relief. See brief of the 
United States as Amicus Curiae in Davis v. Monroe County.
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    Accordingly, our proposed revised guidance does not change the 
standards that we use, and that a school district should use, to 
determine the school district's responsibility for sexual harassment of 
students. Rather, the proposed revised guidance clarifies that these 
standards apply to our ability to find a violation and seek corrective 
action in administrative enforcement of Title IX.
    Because the focus of the guidance is on a school's administrative 
responsibilities under the nondiscrimination requirements of the Title 
IX statute and regulations, rather than its liability to private 
litigants, the proposed revised guidance no longer describes a school's 
compliance obligations in terms of ``liability'' or ``Title VII agency 
law.'' Instead, the proposed revised guidance explains the regulatory 
basis for a school's Title IX responsibilities to take effective action 
to prevent, eliminate, and remedy sexual harassment occurring in its 
program.

The Court Confirmed Important Principles From the 1997 Guidance

    In Davis, Gebser, and a third opinion, Oncale v. Sundowner Offshore 
Services, Inc. (Oncale), 523 U.S. 75 (1998) (a sexual harassment case 
decided under Title VII of the Civil Rights Act of 1964 (Title VII)), 
the Supreme Court confirmed several fundamental principles articulated 
by the Department in the 1997 guidance. In these areas, no changes in 
the guidance are necessary. The Court--
    <bullet> Endorsed the Department's power to set regulatory 
requirements under Title IX. The Court held that, for example, a school 
district's failure to promulgate a grievance procedure, as required by 
the Title IX regulations, does not constitute unlawful discrimination, 
but, nevertheless, such a regulatory requirement can be 
administratively enforced by the Department (Gebser, 524 U.S. at 292).
    <bullet> Affirmed the Department's interpretation that student-on-
student (peer) harassment is covered by Title IX and resolved a circuit 
court split on this issue (Davis, 526 U.S. at 633).
    <bullet> Described the type of conduct that rises to the level of 
peer sexual harassment in a manner consistent with our guidance. The 
Court explained that conduct had to adversely affect the student's 
educational benefits or opportunities, such that the victim is 
effectively denied equal access to these benefits and opportunities 
(Davis, 526 U.S. at 648-651).
    <bullet> Held that not all conduct of a sexual nature rises to the 
level of sexual harassment, Davis, 526 U.S. at 648-651, thus affirming 
our guidance to schools that teachers and school administrators need to 
use common sense and good judgment in responding appropriately to 
allegations of sexual harassment. See also Oncale, 523 U.S. at 79-82.
    <bullet> Affirmed our position that the context of the behavior at 
issue is crucial in determining whether sexual harassment has occurred. 
See, e.g., Davis, 526 U.S. at 650 (citing our 1997 sexual harassment 
guidance); Oncale, 523 U.S. at 81.
    <bullet> Held that sexual harassment may constitute discrimination 
under Title VII even if the harasser and victim of harassment are of 
the same sex (Oncale, 523 U.S. at 79-82). This is consistent with the 
Department's position in the 1997 guidance that same-sex sexual 
harassment can constitute discrimination under Title IX.
    <bullet> Made clear that, although the applicability of Title VII 
agency principles in private Title IX lawsuits for money damages is 
limited, it is still appropriate to look to Title VII principles in 
determining what constitutes sexual harassment (Davis, 526 U.S. at 651, 
citing Meritor Savings

[[Page 66094]]

Bank, FSB v. Vinson (Meritor), 477 U.S. 57, 67 (1986) (Title VII 
case)).

Discussion of Important Clarifications

I. Liability Section Deleted and Guidance Refocused: Basis for 
School's Responsibility Is the Title IX Regulations, Not Title VII 
Agency Law

    The 1997 guidance contained a section titled ``Liability of a 
School for Sexual Harassment.'' To the extent this section could be 
interpreted as being applicable to a school's liability in a private 
lawsuit for monetary damages, the proposed revised guidance clarifies 
that the guidance addresses the Department's administrative enforcement 
of Title IX; it does not address standards applicable to private 
litigation for monetary damages. Accordingly, the proposed guidance 
replaces this section with a new section that focuses on a school's 
responsibilities to prevent and eliminate sexual harassment 
discrimination in its programs as a condition of its receipt of Federal 
financial assistance, as summarized in the following section.

A. Sexual Harassment by Employees

    The 1997 guidance indicated that when teachers or other employees, 
when providing aid, benefits, or services to students, abuse or take 
advantage of their status as a person of authority to engage in sexual 
harassment, a school is responsible for that harassment even if other 
school officials did not find out until later that the harassment 
occurred.\2\ The 1997 guidance described determinations about a 
school's responsibility in these cases, in part, in terms of the Title 
VII agency-derived concept that if a teacher or other employee abuses 
the authority given him or her by the school, it is as if the school 
itself harassed the student (62 FR 12039). The Gebser Court rejected 
Title VII's agency principles for the purpose of determining a school's 
liability for monetary damages under Title IX.\3\ However, the concept 
that in some cases a school must take action to remedy the effects of 
an employee's discrimination exists in the longstanding Title IX 
regulations without reliance on Title VII agency law.\4\
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    \2\ This did not mean that, when the school only became aware of 
this type of harassment after it occurred, the school was at risk of 
losing its Federal funding solely because the harassing conduct had 
occurred. As required by the statute, OCR always provides schools 
with the opportunity to take reasonable steps to end the harassment, 
prevent its recurrence, and remedy the effects of the harassment 
once the school learns about the harassment--either through a 
student complaint, notice from OCR, or other means discussed in the 
guidance under ``Notice of Employee, Peer, or Third Party 
Harassment.'' This issue is discussed further in the section of the 
proposed revised guidance entitled ``OCR Case Resolution.''
    \3\ As discussed in part II of this notice regarding the 
definition of harassment, the Supreme Court's distinction between 
Title IX and Title VII is limited to liability standards. The Title 
VII law continues to be useful in determining what conduct 
constitutes discrimination on the basis of sex under Title IX.
    \4\ 34 CFR 106.3. Several days after the Gebser decision, the 
Court handed down two decisions in Title VII sexual harassment 
cases: Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), 
and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). These cases 
affirmed that under Title VII agency principles, employers are 
liable in monetary damages for the acts of their supervisors who 
sexually harass subordinate employees. The Court also held that if 
the victim does not suffer a tangible, adverse employment action as 
a result of the harassment, the employer can assert an affirmative 
defense if it can show both--(1) that the employer exercised 
reasonable care to prevent and promptly correct any sexually 
harassing behavior; and (2) that the employee unreasonably failed to 
take advantage of these preventative or corrective opportunities 
provided by the employer or to avoid harm otherwise. These decisions 
do not affect OCR standards for several reasons. The Court in Gebser 
was clear that its liability analysis under Title VII agency law 
does not apply to Title IX, nor, more generally, do standards for 
private monetary relief apply to OCR's administrative enforcement of 
the civil rights laws. Moreover, whether or not the victim of 
harassment uses available grievance procedures is different in the 
school context where the degree of influence of the employee 
harasser and the age of the student may prevent effective use of 
grievance procedures. Finally, the administrative enforcement 
process itself makes this type of affirmative defense inapplicable. 
As is discussed in more detail in the section of the guidance 
entitled ``OCR Case Resolution,'' if an OCR investigation reveals 
that a school has taken all appropriate, timely corrective action in 
response to information about sexual harassment by its employees--
whether it learned about the harassment from the victim, from OCR, 
or some other way--OCR will consider the case resolved and will take 
no further action against the school.
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    The Department's Title IX implementing regulations prohibit sex-
based discrimination in the operation of the recipient's programs and 
activities.\5\ Among other things, a recipient cannot, on the basis of 
sex, treat students differently; provide different aid, benefits, or 
services to students; deny or limit aid, benefits, or services to 
students; or otherwise limit a student's enjoyment of a right, 
privilege, or opportunity (34 CFR 106.31). (For brevity and clarity, 
the regulatory requirements are generally summarized as a school's 
obligation to ensure that a student is not denied or limited in his or 
her ability to participate in or benefit from the school's program on 
the basis of sex.) The Department has historically interpreted the 
regulatory requirements to reflect Congress' understanding that Title 
IX's prohibitions against discrimination are not limited to official 
policies and practices established by the school district or high-level 
officials to govern school programs, activities, benefits, and 
services. Sex-based discrimination against individual students can also 
occur if employees, as they are carrying out their day-to-day job 
responsibilities for providing aid, benefits, or services to students, 
(1) condition these benefits on the student's submission to sexual 
advances, or (2) otherwise take advantage of their position of 
responsibility to engage in actions that deny or limit a student's 
ability to participate in or benefit from the school's program on the 
basis of sex. (For brevity and clarity, the proposed revised guidance 
generally refers to these types of employee harassment as harassment 
that occurs in the context of providing aid, benefits, or services to 
students and causes a denial or limitation of a benefit.)
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    \5\ Title IX covers all of the operations of federally assisted 
educational institutions and entities (20 U.S.C. 1687). The guidance 
addresses harassment that occurs in education programs and 
activities covered by Title IX and, thus, assumes in all cases that 
the harassment occurs in connection with the academic, educational, 
extracurricular, athletic, and other programs of the school. For 
more information about the scope of coverage, see 65 FR 26426 (May 
5, 2000).
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    Thus, the regulations do not distinguish discrimination by the 
recipient directly, e.g., actions by the school board or high-level 
school officials, from discrimination that occurs if an employee is 
acting in the context of providing aid, benefits, or services to 
students and the employee engages in actions that deny or limit a 
student's ability to participate in or benefit from the school's 
program on the basis of sex. This is because a school, in large part, 
can only operate its programs and activities through the 
responsibilities it gives its teachers and other employees. The key 
under the Title IX regulations is that the recipient cannot 
discriminate in providing aid, benefits, or services to students. See 
34 CFR 106.31(b). If the recipient provides aid, benefits, or services 
to students through its employees, and an employee, in the context of 
providing these to students, engages in actions that deny or limit a 
student's ability to participate in or benefit from the school's 
program on the basis of sex, the recipient is responsible for the 
discrimination.
    What does it mean to be responsible for the discrimination? The 
Title IX regulations require a written assurance from every recipient 
stating that all of its education programs and activities will be 
operated in compliance with Title IX and the regulations, including 
committing itself to take whatever remedial action is necessary to 
eliminate discrimination in its programs (34 CFR 106.4(a) (citing the 
remedial requirements of 106.3(a))). Section 106.3(a) of the 
regulations requires that

[[Page 66095]]

if a recipient discriminates on the basis of sex, it must take action 
necessary to overcome the effects of the discrimination. The Gebser 
Court expressly affirmed this type of remedial action required under 
our regulations, including remedying the effects of the harassment on 
the victim (524 U.S. at 288). Thus, under the regulations, if the 
recipient discriminates against a student, the recipient must remedy 
the effects of that discrimination on the victim. As previously 
discussed, this includes situations in which discrimination occurred 
because an employee of the recipient, in the context of providing aid, 
benefits, or services to students, took action that denied or limited a 
student's ability to participate in or benefit from the school's 
program.
    It has been our longstanding interpretation of the civil rights 
statutes and our regulations that the school's responsibility to take 
reasonable steps to remedy the effects of its discrimination is 
triggered when the violation occurs (e.g., a school employee, in the 
context of providing aid, benefits, or services to students, engages in 
action that denies or limits the student's ability to participate in or 
benefit from the school's program), regardless of how or at what point 
other school authorities learned of the discrimination. For instance, 
if we investigated a complaint and found that a teacher of an advanced 
placement math class routinely and without an educational basis gave 
female students lower grades than their male counterparts, we would 
find that the school has discriminated against students on the basis of 
sex and that corrective action is required. In order to resolve the 
discrimination in providing aid, benefits, or services, of which other 
school officials subsequently became aware through our investigation, 
we would not only require a recipient to take proactive steps to end 
the discrimination and prevent its recurrence, but would also require 
the recipient to remedy the effects of the discrimination, including 
effects on the victims.
    Thus, the proposed revised guidance clarifies that the school 
discriminates if a teacher or other employee, in the context of 
providing aid, benefits, or services to students, engages in harassing 
conduct that causes a denial or limitation of a student's ability to 
participate in or benefit from the school's program on the basis of 
sex. The proposed revised guidance also clarifies that, because the 
school is responsible for this discrimination, the school is 
responsible both for taking reasonable proactive steps to end the 
harassment and prevent its recurrence and for remedying any effects of 
the sexual harassment on the victim.
    If, on the other hand, an employee harassed a student outside of 
this context, i.e., the harassment occurred in the school's program, 
but not in the context of providing aid, benefits, or services to 
students, the school is responsible for the sexual harassment under the 
same standards that apply to peer and third party sexual harassment. 
These have not changed from the 1997 guidance. In these instances, if 
the harassment was sufficiently serious to effectively limit or deny a 
benefit, but the school took prompt, effective steps once it learned or 
should have learned of the harassment to end it and prevent its 
recurrence, the school has avoided violating Title IX.
    In determining whether an employee's harassing conduct occurs in 
the context of providing aid, benefits, or services to students, it is 
important to consider all the circumstances related to the harassment, 
including the position of the harasser and the age and level of 
education of the students involved. The Court recognized in Davis that 
school officials and employees have a great degree of supervision, 
control, and disciplinary authority over all aspects of elementary and 
secondary school-age children's conduct (526 U.S. at 646). Moreover, 
school-age children are generally expected and required to obey adults 
as part of their participation in school programs and activities.
    Thus, the proposed revised guidance outlines factors that we will 
consider in determining whether the harassing conduct occurred within 
the context of the employee's provision of aid, benefits, or services 
to students. These factors include the age of the student, the 
authority generally given to the harassing employee, the actual degree 
of influence of the harassing employee over the student, as well as the 
place, time, and nature of the harassing conduct. These determinations 
regarding the context of the harassment need to be made on a case-by-
case basis.

B. Peer and Third Party Sexual Harassment

    The standards described in the 1997 guidance applicable to peer and 
third party harassment are the same in the proposed revised guidance.

C. Effect of Grievance Procedures

    The discussion of liability in the 1997 guidance contained a 
section on the effect of grievance procedures. To the extent this 
section could be interpreted to guide courts regarding liability for 
monetary damages, this section was affected by Gebser and Davis. This 
proposed revised guidance clarifies that its focus is on the effect of 
grievance procedures in our enforcement actions.
    Schools are required by the Title IX regulations to disseminate a 
policy against sex discrimination and to adopt and publish grievance 
procedures providing for prompt and equitable resolution of sex 
discrimination complaints, including complaints of sexual harassment. 
The Gebser Court specifically affirmed the Department's authority to 
enforce this requirement administratively in order to carry out Title 
IX's nondiscrimination mandate (524 U.S. at 292). Strong policies and 
effective grievance procedures are essential in order to let students 
and employees know that sexual harassment will not be tolerated, to 
ensure that they know how to report it, and to let students and 
employees know that students can report harassment without fear of 
adverse consequences.
    If a school does not have effective policies and procedures, as 
required by the Title IX regulations, its own inaction may hamper early 
notification and intervention and may permit a sexually hostile 
environment to exist in its program and activities. In this case, we 
would require the school to take corrective action, including remedying 
the effects of the harassment on the victim.

D. OCR Case Resolution

    The 1997 guidance discussion of liability contained a subsection 
titled ``OCR Case Resolution.'' Because the focus of the proposed 
revised guidance is specifically OCR enforcement, this section has been 
retained and clarified. This section lets schools know that, even if 
the school discriminates, the school does not immediately lose Federal 
funds on that basis alone. Consistent with the Title IX statute, we 
provide recipients with the opportunity to take timely and effective 
corrective action before issuing a formal finding of violation.

E. Notice of Harassment

    The ``notice'' section has been moved up in the proposed revised 
guidance to reflect its connection to the discussion of a school's 
responsibility for remedying sexual harassment. For the reasons 
discussed in the following paragraphs, although additional 
clarification has been provided, this section has not been 
substantively revised.

[[Page 66096]]

i. In Cases in Which Notice is Required To Trigger a School's 
Responsibility, a School Will Be Responsible if It Knew or Should Have 
Known About the Harassment
    The 1997 guidance stated that a school has ``notice'' of sexual 
harassment if it ``knew, or in the exercise of reasonable care should 
have known,'' about the harassment. The proposed revised guidance 
retains this notice standard. The type of constructive notice described 
in the 1997 guidance has historically been the way we hold recipients 
responsible for complying with the civil rights laws, and it is a 
reasonable basis for holding a school responsible for taking 
appropriate action in response to sexual harassment. It does not 
require a school to predict future behavior or to be aware that 
harassment is occurring or has occurred if there is no reasonable basis 
for the school to know about it. Instead, the guidance describes a 
reasonable duty to fully investigate if there are obvious problems, 
such as the report of some incidents of harassment or a widespread 
graffiti campaign in public areas.
    The Gebser Court rejected a constructive notice, or ``should have 
known'' standard, as the basis for imposing monetary damages because of 
its central concern that a recipient should not be exposed to large 
damage awards for discrimination of which it was unaware. This aspect 
of the Gebser opinion, however, is not relevant in our enforcement 
actions in which recipients voluntarily take corrective action as a 
condition of continued receipt of Federal funds. Moreover, as stated 
previously in the section entitled ``Title IX Compliance Standard,'' 
under our administrative enforcement, recipients are always given 
actual notice and an opportunity to take appropriate corrective action 
before facing the possible loss of Federal funds.
ii. Notice Can Be Provided to Any Responsible School Employee
    Under Gebser, in order to receive monetary damages, notice of 
sexual harassment must be given ``at a minimum, [to] an official of the 
recipient entity with authority to take corrective action to end the 
discrimination'' (524 U.S. at 290). The 1997 guidance, however, 
specifically rejected the position suggested by some parties that 
notice must be given to managerial or designated employees. In fact, 
the 1997 guidance made clear that an employee who receives notice of 
the harassment, if he or she does not have the authority to address the 
harassment, may still be required to report the harassment to the 
appropriate school official with authority to take corrective action.
    The proposed revised guidance retains and clarifies this position 
as a condition for continued receipt of Federal funds. For purposes of 
our administrative enforcement of Title IX, the Department will 
consider a school to have notice of harassment and a duty to respond if 
a responsible school employee has notice of the harassment. A 
responsible school employee would include any employee who either has 
the authority to take action to address harassment or has the duty to 
report sexual harassment or other misconduct by students or employees 
to appropriate school authorities, as well as an individual who a 
student could reasonably believe has the authority to either address 
the harassment or the responsibility to report it to someone with the 
authority to address it. This interpretation of the regulations is 
fully consistent with Gebser and Davis. As previously discussed, the 
Gebser Court recognized that Title IX responsibilities to respond to 
harassment can be triggered before all statutorily required conditions 
for fund termination have been satisfied, including the condition 
requiring formal notice of violation to appropriate school officials.
    In addition, this requirement is based on a reasonable expectation 
of what steps a school can and should take to fulfill its 
responsibilities under the regulations to respond to and prevent 
discrimination in its education program. As the 1997 guidance 
recognized, it is reasonable to expect that teachers and other 
employees will see, or be told, that sexual harassment is occurring, 
and, thus, schools should make sure that their employees at least 
report what they see or what is told to them. Moreover, young children 
may not understand the formal status of, or lines of authority of, 
school employees and may reasonably believe that an adult, such as a 
teacher or school nurse, is a person that they can and should tell 
about incidents of sexual harassment.

II. Definition of Sexual Harassment

    The section from the 1997 guidance titled ``Severe, Persistent, or 
Pervasive'' has been re-titled ``Factors Used to Evaluate Sexual 
Harassment.'' It now contains four subsections:

A. Types of Harassment

    In the 1997 guidance, we described two different types of sexual 
harassment: quid pro quo and hostile environment (62 FR 12038). As 
discussed in the following paragraphs, our description of these terms 
in the 1997 guidance is consistent with our regulations and with 
applicable case law, and, therefore, these terms have been retained for 
their usefulness in determining whether conduct is sexual harassment. 
We have modified the proposed revised guidance to better represent 
these concepts, and the discussion of quid pro quo and hostile 
environment harassment has been moved from the introduction to this 
section.
    In Burlington Industries, Inc. v. Ellerth (Ellerth), 524 U.S. 742 
(1998)--a Title VII sexual harassment case--the Court discussed the 
usefulness of the distinction between quid pro quo and hostile 
environment harassment. The Court held that this distinction continues 
to be relevant in determining whether conduct rises to the level of 
discrimination. The Court found that quid pro quo harassment requires a 
tangible employment action to result from the harassment. If this is 
not the case, e.g., a harasser threatens but does not take action if 
the victim refuses to succumb to the harasser's sexual advances, the 
conduct is considered hostile environment harassment. The conduct must 
then be sufficiently serious to alter the conditions of the victim's 
employment. Our description of these terms in the 1997 guidance is 
consistent with our regulations and with the Court's holdings in 
Ellerth, and, therefore, these terms have been retained for their 
usefulness in determining whether conduct is sexual harassment. The 
proposed revised guidance has modified the discussion of the basis of a 
school's responsibility for harassment by teachers and other employees, 
including both quid pro quo and hostile environment harassment, to 
clarify the regulatory basis for that responsibility.

B. Quid Pro Quo Harassment

    In addition to the clarifications previously outlined, the section 
from the 1997 guidance titled ``Recipient's Response'' has been 
modified slightly to eliminate references to quid pro quo harassment 
because, in determining an appropriate response, the proposed revised 
guidance focuses instead on whether or not the harassment by a teacher 
or other employee occurred in the context of the employee's provision 
of aid, benefits, or services to students.

C. Hostile Environment Harassment

    As explained in the following paragraphs, in the proposed revised 
guidance the definition of conduct that creates a hostile environment 
is substantively the same as in the 1997

[[Page 66097]]

guidance, but the discussion contains several revisions to clarify that 
the Davis definition and the guidance definition are consistent.
    The Davis Court concluded that student-on-student sexual harassment 
``if sufficiently severe can likewise rise to the level of 
discrimination actionable under the statute'' (526 U.S. at 650). The 
Court held that to support a claim for damages, student-on-student 
sexual harassment must be ``so severe, pervasive, and objectively 
offensive that it can be said to deprive the victims of access to the 
educational opportunities or benefits'' (Davis, 526 U.S. at 650). 
However, physical exclusion is not necessary; it is enough if the 
student victims of sexual harassment can show that the harassment ``so 
undermined and detracts from the victims'' educational experience, that 
the victim-students are effectively denied equal access to an 
institution's resources and opportunities.'' Id. (citing Meritor, 477 
U.S. at 67).
    Although the terms used by the Court in Davis are in some ways 
different from the words used to define hostile environment harassment 
in the 1997 guidance (see, e.g., 62 FR 12041, ``conduct of a sexual 
nature is sufficiently severe, persistent, or pervasive to limit a 
student's ability to participate in or benefit from the education 
program, or to create a hostile or abusive educational environment''), 
the definitions are consistent. The Court's definition, like the 
Department's 1997 guidance, is a contextual description intended to 
capture the same concept--that under Title IX the conduct must be 
sufficiently serious that it adversely affects a student's ability to 
participate in or benefit from the school's program. See 62 FR 12045 
(the conduct must have limited the student's ability to participate or 
altered the conditions of the student's educational environment); 34 
CFR 106.31(b) (prohibiting recipients from denying or limiting a 
student's ability to participate in or benefit from the school's 
program).
    This requirement is consistent with Meritor, a Title VII case cited 
approvingly by the Davis Court, which requires sexual harassment to be 
``sufficiently severe or pervasive to `alter the conditions of [the 
victim's] employment and create an abusive working environment' '' (477 
U.S. at 67). \6\ See also Harris v. Forklift Systems, Inc., 510 U.S. 
17, 22 (1993) (which applied Meritor to hold that a victim need not 
show serious psychological injury as long as she can show the conduct 
created an abusive or hostile environment). The proposed revised 
guidance clarifies some examples given in the 1997 guidance to make 
clear that peer-on-peer acts are not sexual harassment under Title IX 
if they merely make the student victim feel upset. As the discussion in 
62 FR 12041 makes clear, our definition reflects a continuum of 
severity. The ``or'' merely indicated that a particularly severe 
incident may not need to be persistent to be a problem under Title IX.
---------------------------------------------------------------------------

    \6\ In fact, the cites to Title VII cases by the Davis Court 
throughout its discussion of actionable harassment under Title IX 
indicate that the Court did not intend to change the definition of 
sexual harassment but that the Court did intend that Title VII law 
continue to be relevant in determining what constitutes sexual 
harassment under title IX.
---------------------------------------------------------------------------

    Under Davis, determining whether harassment is actionable ``depends 
on a constellation of surrounding circumstances, expectations, and 
relationships'' (526 U.S. at 651 (citing Oncale, a Title VII case)). 
Similarly, the core of the 1997 guidance's definition of harassment is 
the detailed discussion of these underlying factors (for example, the 
age, relationship, and numbers of people involved), and the Davis Court 
cites the factors in the 1997 guidance approvingly (526 U.S. at 651).
    In addition, like the Court in Davis, we require schools to respond 
to conduct that, from an objective perspective, is sufficiently serious 
to deny or limit a student's ability to participate in or benefit from 
the school's program (62 FR 12041). In Oncale, 523 U.S. at 82, the 
Court emphasized that the objective severity of harassment is to be 
based on the perspective of a reasonable person in the victim's 
position `` `considering all the circumstances' '' (citing Harris, 510 
U.S. at 23, in which the Court used a ``reasonable person'' standard to 
determine whether sexual conduct constituted sexual harassment).
    Finally, even looking only at the words the Court used in Davis, 
this would not change our compliance standard for administrative 
enforcement in cases of peer harassment. That is, we will always 
determine whether the conduct is objectively offensive, and some level 
of severity is always required in order to limit or deny a student's 
ability to participate in or benefit from a school's program. In 
addition, a recipient's obligation, upon notice of peer harassment, to 
stop the harassment and prevent its recurrence is related to the 
pervasiveness of the harassment.
    Thus, although the Court referred to the conduct as being ``severe, 
pervasive, and objectively offensive'' and the 1997 guidance referred 
to the conduct as being ``severe, persistent, or pervasive . . . from 
both a subjective and objective perspective,'' both inform a contextual 
description intended to identify elements to evaluate whether the 
conduct is sufficiently serious that it can affect a student's rights 
under Title IX.

D. Welcomeness

    This section from the 1997 guidance has been moved, but remains the 
same in substance.

III. FERPA

    The Department administers the Family Educational Rights and 
Privacy Act (FERPA), which establishes requirements pertaining to 
disclosure of information from a student's ``education records'' 
without the consent of the student. Thus, the requirements of FERPA are 
involved if there are questions about disclosure of information from a 
student's ``education records'' in cases of student-on-student 
harassment. As noted in the 1997 guidance, the Department interprets 
FERPA generally to prevent a school from disclosing to a student who 
complained of harassment information about the sanction or discipline 
imposed upon a student who was found to have engaged in that 
harassment. There are exceptions in the case of a sanction that 
directly relates to the person who was harassed, such as an order that 
the harasser stay away from the victim, or sanctions related to 
offenses for which there is a statutory exception, such as crimes of 
violence or certain sex offenses in postsecondary institutions. 
Furthermore, if we are conducting a civil rights investigation, FERPA 
does not prohibit schools from disclosing to us information from a 
student's ``education records,'' including information about applicable 
sanctions or discipline (20 U.S.C. 1232g(b)(1)(C)).
    The 1997 guidance promised additional guidance in this area. 
Accordingly, the revised guidance clarifies that the Department 
interprets FERPA to permit a student who filed a harassment complaint 
to learn the outcome of his or her complaint, i.e., to learn whether 
the complaint was investigated and whether harassment was found--
because this information directly relates to the victim. However, it 
remains the Department's position that FERPA prevents a school from 
disclosing to a victim the sanction or discipline imposed upon the 
student found to have harassed the victim (unless, as previously 
described, the sanction is directly related to the victim or there is a 
statutory exception). The

[[Page 66098]]

Department recognizes that information about the sanctions is important 
to the victim's remedy because this information enables the victim to 
determine whether the school responded appropriately to the complaint. 
Thus, the Department has proposed and supported a statutory amendment 
to FERPA to permit this disclosure.

Reiteration of Important Aspects of the 1997 Guidance

A. Importance of Common Sense and Judgment

    As with the 1997 guidance, the proposed revised guidance focuses on 
the school's responsibility, and important role, in taking reasonable 
steps to eliminate and prevent sexual harassment. A significant number 
of students, both male and female, have experienced sexual harassment, 
which can interfere with a student's academic performance and emotional 
and physical well-being. Preventing and remedying sexual harassment in 
schools is essential to ensure nondiscriminatory, safe environments in 
which students can learn. The proposed revised guidance is important 
because school personnel who understand their obligations under Title 
IX are in the best position to prevent harassment and to lessen the 
harm to students if, despite their best efforts, harassment occurs.
    Several sexual harassment issues involving young students that were 
widely reported in the press at the time the 1997 guidance was being 
developed were discussed in the preamble to the guidance. The preamble 
noted that these incidents provide a good example of how the guidance 
can assist schools in understanding what is sexual harassment and in 
formulating appropriate responses. As the Department stated then, a 
kiss on the cheek by a first grader does not constitute sexual 
harassment.
    Since the 1997 guidance was published, we have heard from 
educators, parents, and other interested parties that some schools 
continue to overreact to incidents of childish behavior or immature 
conduct that do not rise to the level of sexual harassment. 
Accordingly, the proposed revised guidance, like the 1997 guidance, 
illustrates that in addressing allegations of sexual harassment, the 
good judgment and common sense of teachers and school administrators 
are important elements of a response that meets the requirements of 
Title IX. School personnel should consider the age and maturity of 
students in responding to allegations of sexual harassment. For 
example, age is relevant to determining whether a student welcomed the 
conduct and to determining whether the conduct is serious enough to 
rise to the level of sexual harassment. Age is a factor to be 
considered by school personnel when determining how best to inform 
students about a school's policies and procedures in order to prevent 
sexual harassment from occurring.
    However, we have also learned that some schools, perhaps out of 
confusion regarding the legal standards for liability for money damages 
for sexual harassment, or perhaps out of a misplaced notion that ``kids 
will be kids,'' continue to avoid responding to serious incidents of 
sexual harassment. If harassment has occurred, the critical issue under 
Title IX is whether the school recognized that sexual harassment can 
constitute sex discrimination and whether the school took prompt and 
effective action calculated to end the harassment, prevent its 
recurrence, and, as appropriate, address the effects of the harassment. 
As the proposed revised guidance makes clear, if harassment has 
occurred, doing nothing is always the wrong response. However, 
depending on the circumstances, there may be more than one right way to 
respond. The important thing is for school employees or officials to 
pay attention to the school environment and not be afraid to act in a 
reasonable, commonsense manner in response to sexual harassment, often 
responding as they would to other types of serious misconduct. 
Accordingly, important discussions from the 1997 guidance regarding the 
recipient's response, requests for confidentiality, prevention 
strategies, and effective grievance procedures remain intact in the 
proposed guidance.
    In addition, in describing the obligation of the school to take 
action when harassment occurs, in the proposed revised guidance the 
term ``effective'' has generally been substituted for the term 
``appropriate.'' This is a clarification intended to underscore the 
need for action to be effective and does not represent a change from 
the 1997 guidance. This clarification should be read consistently with 
the need to use common sense and good judgment. It does not mean that 
there is any need for schools to overreact and impose the most severe 
sanctions, e.g., suspension or expulsion of students who have engaged 
in harassment, if other sanctions are consistent with the nature of the 
misconduct and can reasonably be expected to be effective. As 
recognized in the guidance, if a school's initial steps are 
ineffective, a series of escalating steps may be necessary in order for 
the action to be effective in responding to the harassment.

B. Applicability of Guidance to Same-Sex Harassment

    The 1997 guidance explained that Title IX protects any ``person'' 
from sex discrimination. Thus, Title IX protects both male and female 
students from sexual harassment, and schools have an obligation to deal 
with complaints of sexual harassment equally whether the complainant is 
male or female. Additionally, the guidance explained that Title IX 
prohibits sexual harassment regardless of whether the harasser and the 
person being harassed are members of the same sex, a position 
subsequently supported by the Supreme Court's 1998 decision under Title 
VII in Oncale. The 1997 guidance explained that all students, 
regardless of their sexual orientation, are protected from sexual 
harassment under Title IX, and this remains our position in the 
proposed revised guidance. By promptly and effectively addressing 
sexual harassment discrimination occurring in education programs or 
activities, school personnel are in the best position to ensure a safe 
and nondiscriminatory learning environment for every student. The focus 
of the proposed revised guidance, like the 1997 guidance, is harassment 
involving conduct of a sexual nature; thus, both explain that gender-
based harassment is beyond their scope. Of course, gender-based 
harassment, including harassment based on sex-stereotyping, can also be 
a violation of Title IX.
    The harassment of students on the basis of sexual orientation is a 
serious problem. As noted in the 1997 guidance and in the proposed 
revised guidance, some State and local laws may prohibit discrimination 
on the basis of sexual orientation, and, under certain circumstances, 
courts may permit redress for harassment on the basis of sexual 
orientation under other Federal legal authority. In January 1999 we 
joined with the National Association of Attorneys General in issuing 
the publication ``Protecting Students from Harassment and Hate Crime, A 
Guide for Schools'' (Guide). The Guide provides educators with 
practical guidance for protecting students from all forms of 
harassment, including harassment on the basis of sexual orientation. As 
the Secretary of Education, Richard Riley, stated in the introduction 
to the Guide: ``Our schools owe students a safe environment that is 
conducive to learning and that affords

[[Page 66099]]

all students an equal opportunity to achieve high educational 
standards. Harassment and hate crimes undermine these purposes and may 
cause serious harm to the development of students who are victimized by 
this behavior.'' The Guide is a useful resource that school officials 
may use to ensure that all students attend schools in a safe 
environment free from all forms of harassment. The Guide is available 
on our web page at:

http://www.ed.gov/pubs/Harassment.

C. Additional Information on the Development of the 1997 Guidance

    Because the substance of the revised guidance has not changed 
significantly, many of the comments that we received from interested 
parties in response to a draft of the 1997 guidance, and our responses 
to those comments, remain relevant and unchanged. We, therefore, are 
attaching that portion of the 1997 Federal Register notice as Appendix 
B to this document.

Electronic Access to This Document

    You may view this document, as well as all other Department of 
Education documents published in the Federal Register, in text or Adobe 
Portable Document Format (PDF), on the Internet at either of the 
following sites:

http://ocfo.ed.gov/fedreg.htm
http://www.ed.gov/news.html

To use PDF, you must have Adobe Acrobat Reader, which is available free 
at either of the previous sites. If you have questions about using PDF, 
call the U.S. Government Printing Office (GPO), toll free, at 1-888-
293-6498; or in the Washington, DC, area at (202) 512-1530.

    Note: The official version of this notice is the document 
published in the Federal Register. Free Internet access to the 
official edition of the Federal Register and the Code of Federal 
Regulations is available on GPO Access at: http://www.acess.gpo.gov/nara/index.html.


    Dated: October 26, 2000.
Norma V. Cantu,
Assistant Secretary for Civil Rights.

Appendix A--Sexual Harassment Guidance: Harassment of Students \1\ by 
School Employees, Other Students, or Third Parties Summary of Contents

Introduction

Applicability of Title IX

Title IX Regulatory Compliance Responsibilities

Harassment by Teachers and Other Employees
Harassment by Other Students or Third Parties
Notice of Employee, Peer, or Third Party Harassment
Grievance Procedures
OCR Case Resolution

Factors Used to Evaluate Sexual Harassment

Types of Harassment: Quid Pro Quo Harassment and Hostile Environment 
Harassment
Quid Pro Quo Harassment
Hostile Environment Harassment
Welcomeness

Recipient's Response

Response to Student or Parent Reports of Harassment;
Response to Direct Observation of Harassment by a Responsible 
Employee
Requests by the Harassed Student for Confidentiality
Response to Other Types of Notice
Prevention

Prompt and Equitable Grievance Procedures

First Amendment

    Introduction. Title IX of the Education Amendments of 1972 
(Title IX) and the Department of Education's implementing 
regulations prohibit discrimination on the basis of sex in federally 
assisted education programs and activities.\2\ The Supreme Court, 
the Congress, and Federal executive departments and agencies, 
including the Department of Education, have recognized that sexual 
harassment of students can constitute discrimination prohibited by 
Title IX.\3\ This guidance focuses on a school's fundamental 
compliance responsibilities under Title IX and the Title IX 
regulations to address sexual harassment of students as a condition 
of continued receipt of Federal funding.
    Sexual harassment can include unwelcome verbal, nonverbal, or 
physical conduct of a sexual nature. If a student is sexually 
harassed, the harassing conduct can deny or limit, on the basis of 
sex, the student's ability to participate in or to receive benefits, 
services, or opportunities in the school's program. This guidance 
describes the regulatory basis for a school's compliance 
responsibilities under Title IX, outlines the circumstances under 
which sexual harassment may constitute discrimination prohibited by 
the statute and regulations, and provides information about actions 
that schools should take to prevent sexual harassment or to remedy 
it effectively if it does occur.
    Applicability of Title IX. Title IX applies to all public and 
private educational institutions that receive Federal funds, i.e., 
recipients, including, but not limited to, elementary and secondary 
schools, school districts, proprietary schools, colleges, and 
universities. The guidance uses the terms ``recipients'' and 
``schools'' interchangeably to refer to all of those institutions. 
The ``education program or activity'' of a school includes all of 
the school's operations.\4\ This means that Title IX protects 
students in connection with all of the academic, educational, extra-
curricular, athletic, and other programs of the school, whether they 
take place in the facilities of the school, on a school bus, at a 
class or training program sponsored by the school at another 
location, or elsewhere.
    It is important to recognize that Title IX's prohibition against 
sexual harassment does not extend to legitimate nonsexual touching 
or other nonsexual conduct. For example, a high school athletic 
coach hugging a student who made a goal or a kindergarten teacher's 
consoling hug for a child with a skinned knee will not be considered 
sexual harassment.\5\ Similarly, one student's demonstration of a 
sports maneuver or technique requiring contact with another student 
will not be considered sexual harassment. However, in some 
circumstances, nonsexual conduct may take on sexual connotations and 
rise to the level of sexual harassment. For example, a teacher's 
repeatedly hugging and putting his or her arms around students under 
inappropriate circumstances could create a hostile environment.
    A student may be sexually harassed by a school employee,\6\ 
another student, or a non-employee third party (e.g., a visiting 
speaker or visiting athletes). Title IX protects any ``person'' from 
sex discrimination. Accordingly, both male and female students are 
protected from sexual harassment \7\ engaged in by a school's 
employees, other students, or third parties. Moreover, Title IX 
prohibits sexual harassment regardless of the sex of the harasser, 
i.e., even if the harasser and the person being harassed are members 
of the same sex.\8\ An example would be a campaign of sexually 
explicit graffiti directed at a particular girl by other girls.\9\
    Although Title IX does not prohibit discrimination on the basis 
of sexual orientation,<SUP>10 11</SUP> sexual harassment directed at 
gay or lesbian students may constitute sexual harassment prohibited 
by Title IX. For example, if students heckle another student with 
comments based on the student's sexual orientation (e.g., ``gay 
students are not welcome at this table in the cafeteria''), but 
their actions do not involve sexual conduct, their actions would not 
be sexual harassment covered by Title IX. On the other hand, 
harassing conduct of a sexual nature directed toward gay or lesbian 
students (e.g., if a male student or a group of male students target 
a gay student for physical sexual advances) may create a sexually 
hostile environment and, therefore, may be prohibited by Title IX.
    Although a comprehensive discussion of gender-based harassment 
is beyond the scope of this guidance, it is also important to 
recognize that gender-based harassment, which may include acts of 
verbal, nonverbal, or physical aggression, intimidation, or 
hostility based on sex or sex-stereotyping, but not involving 
conduct of a sexual nature, may be a form of sex discrimination that 
violates Title IX and the Title IX regulations if it rises to a 
level that denies or interferes with benefits, services, or 
opportunities and is directed at individuals because of their 
sex.<SUP>12</SUP> For example, the repeated sabotaging of female 
graduate students' laboratory experiments by male students in the 
class could be the basis of a violation of Title IX. In assessing 
all related circumstances to determine whether a hostile environment 
exists, incidents of gender-based harassment combined with incidents 
of sexual harassment could create a hostile environment, even if 
neither the gender-based harassment alone nor the sexual

[[Page 66100]]

harassment alone would be sufficient to do so.<SUP>13</SUP>
    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.<SUP>14</SUP>
    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.<SUP>15</SUP>
    The regulations set out the basic Title IX responsibilities a 
recipient undertakes when it accepts Federal financial assistance, 
including the following specific obligations.<SUP>16</SUP> A 
recipient agrees that, in providing any aid, benefit, or service to 
students, it will not, on the basis of sex--
    <bullet> 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; 
<SUP>17</SUP>
    <bullet> Provide different aid, benefits, or services or provide 
aid, benefits, or services in a different manner; <SUP>18</SUP>
    <bullet> Deny any student any such aid, benefit, or service; 
<SUP>19</SUP>
    <bullet> Subject students to separate or different rules of 
behavior, sanctions, or other treatment; <SUP>20</SUP>
    <bullet> Aid or perpetuate discrimination against a student by 
providing significant assistance to any agency, organization, or 
person that discriminates on the basis of sex in providing any 
benefit, service, or opportunity to students; <SUP>21</SUP> and
    <bullet> Otherwise limit any student in the enjoyment of any 
right, privilege, advantage, or opportunity.<SUP>22</SUP>
    For the purposes of brevity and clarity, this proposed revised 
guidance generally summarizes this comprehensive list by referring 
to a school's obligation to ensure that a student is not denied or 
limited in the ability to participate in or benefit from the 
school's program on the basis of sex.
    The regulations also specify that, if a recipient discriminates 
on the basis of sex, the school must take remedial action to 
overcome the effects of the discrimination.<SUP>23</SUP>
    In addition, the regulations establish procedural requirements 
that are important for the prevention of, or correction of, sex 
discrimination, including sexual harassment. These requirements 
include issuance of a policy against sex discrimination 
<SUP>24</SUP> and adoption and publication of grievance procedures 
providing for prompt and equitable resolution of complaints of sex 
discrimination.<SUP>25</SUP> 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.<SUP>26</SUP>
    As explained in this guidance, based on these regulatory 
requirements, schools need to recognize and respond to sexual 
harassment of students by teachers and other employees, by other 
students, and by third parties. This guidance explains how the 
requirements of the Title IX regulations apply to situations 
involving sexual harassment of a student and outlines measures that 
schools should take to ensure compliance with these requirements.
    Harassment by Teachers and Other Employees. Sexual harassment of 
a student by a teacher or other school employee may be 
discrimination in violation of Title IX.<SUP>27</SUP> This guidance 
outlines the circumstances under which an employee's actions can 
cause discrimination and trigger the school's responsibility for 
taking effective corrective action. In sum, a recipient's 
responsibility for employee harassment is distinguishable based on 
whether or not the harassment occurred in the context of the 
employee's provision of aid, benefits, or services to students. If 
the answer is yes, as described in the next paragraph, this triggers 
the recipient's responsibilities. What this means for purposes of 
OCR's administrative requirements is that the recipient must take 
reasonable steps to eliminate the hostile environment caused by the 
harassment, to prevent its recurrence, and to remedy its effects. 
(Of course, under OCR's administrative enforcement, a recipient will 
always have actual notice and an opportunity to take appropriate 
corrective action before facing the loss of Federal funds.) By 
contrast, if the harassment occurs in the school's program, but not 
in the context of the employee's provision of aid, benefits, or 
services to students, the recipient's responsibility is not 
triggered until it has notice. Thus, if upon notice, it takes prompt 
and effective steps to end the harassment and prevent its 
recurrence, it has satisfied its obligations under the Title IX 
regulations, and the recipient is not responsible for the effects of 
the harassment on the victim that occurred prior to notice.
    When is an employee acting in the context of providing aid, 
benefits, or services to students? A recipient is responsible for 
the nondiscriminatory provision of aid, benefits, or services to 
students, and a recipient generally provides these to students 
through the responsibilities it gives its employees. If an employee, 
in the context of providing aid, benefits, or services to students, 
takes advantage of his or her position of responsibility over 
students and engages in actions that deny or limit a student's 
ability to participate in or benefit from the school's program on 
the basis of sex,<SUP>28</SUP> the recipient is responsible for the 
discrimination.<SUP>29</SUP>
    For example, in some instances, an employee will condition the 
provision of aid, benefits, or services to a student on submission 
to sexual harassment. In other instances, an employee's conduct is 
sufficiently serious that it creates a hostile environment in a 
situation in which an employee takes advantage of the 
responsibilities given to him or her by the school to provide aid, 
benefits, or services to students to engage in harassment, or, 
because of the way the school is run, the employee reasonably 
appears to be taking advantage of this position of responsibility 
when engaging in the harassment. (For more information see ``Types 
of Harassment: Quid Pro Quo Harassment and Hostile Environment 
Harassment,'' as well as the paragraphs that follow in this 
section.) For brevity and clarity, this proposed revised guidance 
generally refers to the types of employee harassment described in 
this paragraph as causing a denial or limitation of a benefit that 
occurred in the context of the employee's provision of aid, 
benefits, or services to students. Factors to be considered in 
determining whether an employee's harassing conduct occurred in the 
context of providing aid, benefits, or services to students are 
outlined in the following paragraphs of this section. In the 
situations described in this paragraph, because the school is 
responsible for the denial or limitation of the student's ability to 
participate in or benefit from the school's program on the basis of 
sex, the school is responsible for taking timely and effective 
action to end the harassment, prevent its recurrence, and remedy its 
effect on the victim.
    On the other hand, if a teacher or other school employee engages 
in harassment of a student outside of this context, i.e., if the 
harassment occurs in the school's program, but not in the context of 
the employee's provision of aid, benefits, or services to students, 
and if the harassment is sufficiently serious to create a hostile 
environment, the school is responsible, upon notice of the 
harassment, for taking prompt and effective action to stop the 
harassment and prevent its recurrence.\30\ (This is the same 
standard applicable to peer and third party harassment, which is 
discussed in the following section.) As explained in ``Notice of 
Employee, Peer, or Third Party Harassment,'' for the purposes of 
this guidance, a school has notice of harassment if a responsible 
school employee actually knew, or in the exercise of reasonable care 
should have known, about the harassment. If, upon notice, the school 
takes immediate and effective action reasonably calculated to end 
the harassment, eliminate the hostile environment, and prevent its 
recurrence, it has avoided violating the Title IX regulations. If, 
upon notice,\31\ the school fails to take prompt and effective 
action, its own failure to act has allowed the student to continue 
to be subjected to a hostile environment that denies or limits the 
student's ability to participate in or benefit from the school's 
program. If this occurs, the school is then responsible for taking 
corrective action to remedy the effects of the harassment on the 
victim that could have been prevented if the school had responded 
promptly and effectively, as well as taking corrective action to 
stop the harassment and prevent its recurrence. (See the sections on 
``OCR Case Resolution'' and ``Recipient's Response.'')
    In assessing a school's responsibility under the Title IX 
regulations for an employee's sexual harassment of a student, OCR 
considers whether or not the sexual

[[Page 66101]]

harassment occurred in the context of the employee's provision of 
aid, benefits, or services to students. In determining this, OCR 
will consider on a case-by-case basis the nature and circumstances 
of the harassing conduct as it relates to the employee's provision 
of aid, benefits, or services to students in the school's program. 
If an employee engages in quid pro quo harassment, i.e., the 
employee conditions an educational benefit or decision on a 
student's submission to sexual conduct, the student clearly is being 
denied or limited in his or her ability to participate in or benefit 
from the school's program on the basis of sex. In addition, the 
harassment is clearly occurring in the context of the employee's 
provision of aid, benefits, or services to students. An example 
would be a teacher who conditions a student's grade on submission to 
sexual advances and then gives the student a poor grade for 
rejecting the harassment. In situations that do not involve quid pro 
quo harassment, but in which an employee's sexually harassing 
conduct is sufficiently serious to create a hostile environment, OCR 
will consider the following interrelated factors in determining 
whether the harassment occurred in the context of the employee's 
provision of aid, benefits, or services to students:
    <bullet> The degree of responsibility given to the employee, 
including informal and formal authority to provide aid, benefits, or 
services to students, to direct and control student conduct, or to 
discipline students generally;
    <bullet> The degree of influence the employee has over the 
particular student involved, including in the context in which the 
harassment took place;
    <bullet> Where and when the harassment occurred; and
    <bullet> The age and educational level of the student involved, 
and, as applicable, whether, due to the student's age and 
educational level and the way the school is run, it would be 
reasonable for a student to believe that the employee was in a 
position of responsibility over the student, even if the employee 
was not.
    These factors are applicable to all recipient educational 
institutions, including elementary and secondary schools, colleges, 
and universities.
    In cases involving allegations of harassment of elementary and 
secondary school-age students by a teacher or school administrator 
during any school activity,\32\ consideration of these factors will 
generally lead to a conclusion that the harassment occurred in the 
context of the employee's provision of aid, benefits, or services. 
This is because elementary and secondary schools are typically run 
in a way that gives teachers, school officials, and certain other 
school employees a substantial degree of supervision, control, and 
disciplinary authority over the conduct of students.\33\ For 
example, a teacher may sexually harass an eighth grade student in a 
school hallway. Even if the student is not in any of the teacher's 
classes and even if the teacher is not a designated hallway monitor, 
given the age and educational level of the student and the status 
and degree of influence of teachers in elementary and secondary 
schools, it would be reasonable for the student to believe that the 
teacher had at least informal disciplinary authority over students 
in the hallways. Similarly, a high school coach may require an 
athlete to come to his office for a post-game discussion of the 
athlete's performance and then use this meeting to make sexual 
advances. In these examples, all the factors (nature and 
circumstances of the harassment, age and education level of the 
student, employee's position of responsibility, employee's degree of 
influence over the student, and where and when the harassment 
occurred) would indicate that the harassment occurred in the context 
of the employee's provision of aid, benefits, or services to 
students. With respect to other types of employees, e.g., custodial 
employees, these same factors would be considered to determine 
whether or not it would be reasonable for the student to believe 
that the employee had a position of responsibility over him or her 
and, thus, was in a position to take advantage of that 
responsibility to limit or deny aid, benefits, or services to the 
student.
    On the other hand, consider the case in which a university 
custodian sexually harasses a graduate student in the hallway of a 
university building. Based on the considerations set out in the 
factors listed previously, even though the harassment occurred in 
the hallway of a university building, due to the age and education 
level of the student, taken together with the employee's lack of 
authority or influence over that student, OCR would conclude that 
the harassment did not occur in the context of the employee's 
provision of aid, benefits, or services to students. Thus, as 
previously described, the university's obligation to respond 
promptly and effectively would be triggered when it knew or should 
have known of the harassment.
    Harassment by Other Students or Third Parties. If a student 
sexually harasses another student and the harassing conduct is 
sufficiently serious to deny or limit the student's ability to 
participate in or benefit from the program, and if the school knows 
or reasonably should know \34\ about the harassment, the school is 
responsible for taking immediate effective action to eliminate the 
hostile environment and prevent its recurrence.\35\ As long as the 
school, upon notice of the harassment, responds by taking prompt and 
effective action to end the harassment and prevent its recurrence, 
the school has carried out its responsibility under the Title IX 
regulations. On the other hand, if, upon notice, the school fails to 
take prompt, effective action, the school's own action has permitted 
the student to be subjected to a hostile environment that denies or 
limits the student's ability to participate in or benefit from the 
school's program on the basis of sex.\36\ In this case, the school 
is responsible for taking effective corrective actions to stop the 
harassment, prevent its recurrence, and remedy its effects on the 
victim.
    Similarly, sexually harassing conduct by third parties, who are 
not themselves employees or students at the school (e.g., a visiting 
speaker or members of a visiting athletic team), may also be of a 
sufficiently serious nature as to interfere with a student's ability 
to participate in or benefit from the education program. As 
previously outlined in connection with peer harassment, if the 
school knows or should know \37\ of the harassment, the school is 
responsible for taking prompt and effective action to eliminate the 
hostile environment and prevent its recurrence. The type of 
appropriate steps that the school should take will differ depending 
on the level of control that the school has over the third party 
harasser.\38\ For example, if athletes from a visiting team harass 
the home school's students, the home school may not be able to 
discipline the athletes. However, it could encourage the other 
school to take appropriate action to prevent further incidents; if 
necessary, the home school may choose not to invite the other school 
back. This issue is discussed more fully in ``Recipient's 
Response.'' If, upon notice, the school fails to take prompt and 
effective corrective action, its own failure has permitted the 
student to be subjected to a hostile environment that limits the 
student's ability to participate in or benefit from the education 
program.\39\ In this case, the school is responsible for taking 
corrective actions to stop the harassment, prevent its recurrence, 
and remedy its effects on the victim.
    Notice of Employee, Peer, or Third Party Harassment. As 
described in the section on ``Harassment by Teachers and Other 
Employees,'' schools may be responsible for certain types of 
employee harassment that occurred before other school officials had 
notice of harassment, as described in this section. On the other 
hand, as described in that section and the section on ``Harassment 
by Other Students or Third Parties,'' in situations involving 
certain other types of employee harassment or harassment by peers or 
third parties, a school will be in violation of the Title IX 
regulations if the school ``has notice'' of a sexually hostile 
environment and fails to take immediate and effective corrective 
action.\40\ A school has notice if a responsible employee ``knew, or 
in the exercise of reasonable care should have known,'' about the 
harassment.\41\ A responsible employee would include any employee 
who has the authority to take action to redress the harassment, who 
has the duty to report to appropriate school officials sexual 
harassment or any other misconduct by students or employees, or an 
individual who a student could reasonably believe has this authority 
or responsibility.\42\ Accordingly, schools need to ensure that 
employees are trained so that employees with authority to address 
harassment know how to respond appropriately, and other responsible 
employees know that they are obligated to report harassment to 
appropriate school officials. Training for employees should include 
practical information about how to identify harassment and, as 
applicable, the person to whom it should be reported.
    A school can receive notice of harassment in many different 
ways. A student may have filed a grievance with the Title IX 
coordinator \43\ or complained to a teacher or other responsible 
employee about fellow students harassing him or her. A student, 
parent, or other individual may have

[[Page 66102]]

contacted other appropriate personnel, such as a principal, campus 
security, bus driver, teacher, affirmative action officer, or staff 
in the office of student affairs. A teacher or other responsible 
employee of the school may have witnessed the harassment. The school 
may receive notice about harassment in an indirect manner, from 
sources such as a member of the school staff, a member of the 
educational or local community, or the media. The school also may 
have learned about the harassment from flyers about the incident 
distributed at the school or posted around the school. For the 
purposes of compliance with the Title IX regulations, a school has a 
duty to respond to harassment that it reasonably should have known 
about, i.e., if it would have learned of the harassment if it had 
exercised reasonable care or made a ``reasonably diligent inquiry.'' 
\44\ For example, in some situations if the school knows of 
incidents of harassment, the exercise of reasonable care should 
trigger an investigation that would lead to a discovery of 
additional incidents.\45\ In other cases, the pervasiveness of the 
harassment may be enough to conclude that the school should have 
known of the hostile environment--if the harassment is widespread, 
openly practiced, or well-known to students and staff (such as 
sexual harassment occurring in the hallways, graffiti in public 
areas, or harassment occurring during recess under a teacher's 
supervision.) \46\
    If a school otherwise knows or reasonably should know of a 
hostile environment and fails to take immediate and effective 
corrective action, a school has violated Title IX even if the 
student has failed to use the school's existing grievance procedures 
or otherwise inform the school of the harassment.
    Grievance Procedures. Schools are required by the Title IX 
regulations to adopt and publish grievance procedures providing for 
prompt and equitable resolution of sex discrimination complaints, 
including complaints of sexual harassment, and to disseminate a 
policy against sex discrimination.\47\ (These issues are discussed 
in the section on ``Prompt and Equitable Grievance Procedures.'') 
These procedures provide a school with a mechanism for discovering 
sexual harassment as early as possible and for effectively 
correcting problems, as required by the Title IX regulations. By 
having a strong policy against sex discrimination and accessible, 
effective, and fairly applied grievance procedures, a school is 
telling its students that it does not tolerate sexual harassment and 
that students can report it without fear of adverse consequences.
    Without a policy and procedure, a student does not know either 
of the school's obligation to address this form of discrimination or 
how to report harassment so that it can be remedied. If the alleged 
harassment is sufficiently serious to create a hostile environment 
and it is the school's failure to comply with the procedural 
requirements of the Title IX regulations that hampers early 
notification and intervention and permits sexual harassment to deny 
or limit a student's ability to participate in or benefit from the 
school's program on the basis of sex,\48\ the school will be 
responsible under the Title IX regulations, once informed of the 
harassment, to take corrective action, including stopping the 
harassment, preventing its recurrence, and remedying the effects of 
the harassment on the victim.
    OCR Case Resolution. If OCR is asked to investigate or otherwise 
resolve incidents of sexual harassment of students, including 
incidents caused by employees, other students, or third parties, OCR 
will consider whether--(1) The school has a policy prohibiting sex 
discrimination under Title IX \49\ and effective grievance 
procedures; \50\ (2) the school appropriately investigated or 
otherwise responded to allegations of sexual harassment; \51\ and 
(3) the school has taken immediate and effective corrective action 
responsive to the harassment, including effective actions to end the 
harassment, prevent its recurrence, and, as appropriate, remedy its 
effects.\52\ (Issues related to appropriate investigative and 
corrective actions are discussed in detail in the section on 
``Recipient's Response.'')
    If the school has taken each of these steps, OCR will consider 
the case against the school resolved and will take no further 
action, other than monitoring compliance with an agreement, if any, 
between the school and OCR. This is true in cases in which the 
school was in violation of the Title IX regulations (e.g., a teacher 
sexually harassed a student in the context of providing aid, 
benefits, or services to students), as well as those in which there 
has been no violation of the regulations (e.g., in a peer sexual 
harassment situation in which the school took immediate, reasonable 
steps to end the harassment and prevent its recurrence). This is 
because, even if OCR identifies a violation, Title IX requires OCR 
to attempt to secure voluntary compliance.\53\ Thus, because a 
school will have the opportunity to take reasonable corrective 
action before OCR issues a formal finding of violation, a school 
does not risk losing its Federal funding solely because 
discrimination occurred.

Factors Used To Evaluate Sexual Harassment

    Types of Harassment: Quid Pro Quo Harassment and Hostile 
Environment Harassment. Sexual harassment may constitute sex 
discrimination prohibited by Title IX and the Title IX regulations. 
As outlined in the following paragraphs, sexual harassment may be 
categorized as either quid pro quo harassment or hostile environment 
harassment.\54\ Sexually harassing conduct can include unwelcome 
sexual advances, requests for sexual favors, and other physical, 
verbal, or nonverbal conduct of a sexual nature.\55\
    It is important to recognize that the line between quid pro quo 
and hostile environment sexual harassment is often blurred, and the 
prohibited conduct may involve elements of both. What is important 
is determining whether sexual harassment has denied or limited a 
student's ability to participate in or benefit from the school's 
programs or activities based on sex, regardless of whether it is 
labeled quid pro quo or hostile environment harassment.
    Quid Pro Quo Harassment. Quid pro quo harassment occurs whenever 
a school employee \56\ explicitly or implicitly conditions a 
student's participation in an education program or bases an 
educational decision on the student's submission to unwelcome sexual 
advances, requests for sexual favors, or other physical, verbal, or 
nonverbal conduct of a sexual nature. When quid pro quo harassment 
occurs, whether the student resists and suffers the threatened harm 
or submits and thus avoids the threatened harm, the student has been 
treated differently or the student's ability to participate in or 
benefit from the school's program has been denied or limited based 
on sex.\57\
    Hostile Environment Harassment. A sexually hostile environment 
is created if sexually harassing conduct by an employee, by another 
student, or by a third party is sufficiently serious that it denies 
or limits a student's ability to participate in or benefit from the 
school's program based on sex.\58\
    As outlined in the following paragraphs, OCR considers a variety 
of related factors to evaluate the severity and pervasiveness of the 
conduct. OCR considers the conduct from both a subjective \59\ and 
objective \60\ perspective. In evaluating the severity and 
pervasiveness of the conduct, OCR considers all relevant 
circumstances, i.e., ``the constellation of surrounding 
circumstances, expectations, and relationships.'' \61\ Schools 
should also use these factors to evaluate conduct in order to draw 
commonsense distinctions between conduct that constitutes sexual 
harassment and conduct that does not rise to that level. Relevant 
factors include the following:
    <bullet> The degree to which the conduct affected one or more 
students' education. In considering the effect of the harassment on 
the student in terms of whether it has denied or limited the 
student's ability to participate in or benefit from the school's 
program, OCR assesses both tangible and intangible effects. Many 
hostile environment cases involve tangible or obvious injuries.\62\ 
For example, a student's grades may go down or the student may be 
forced to withdraw from school because of the harassing 
behavior.\63\ A student may also suffer physical injuries or mental 
or emotional distress.\64\ In other cases a hostile environment may 
exist even if there is no tangible injury to the student.\65\ For 
example, a student may have been able to keep up his or her grades 
and continue to attend school even though it was very difficult for 
him or her to do so because of the teacher's repeated sexual 
advances. Similarly, a student may be able to remain on a sports 
team, despite experiencing great difficulty performing at practices 
and games from the humiliation and anger caused by repeated sexual 
advances and intimidation by several team members that create a 
hostile environment. Harassing conduct in these examples would alter 
a reasonable student's educational environment and adversely affect 
the student's ability to participate in or benefit from the school's 
program on the basis of sex.
    A hostile environment can occur even if the harassment is not 
targeted specifically at the individual complainant.\66\ For 
example, if a student, group of students, or a teacher regularly 
directs sexual comments toward a

[[Page 66103]]

particular student, a hostile environment may be created not only 
for the targeted student, but also for others who witness the 
conduct.
    <bullet> The type, frequency, and duration of the conduct. In 
most cases, a hostile environment will exist if there is a pattern 
or practice of harassment, or if the harassment is sustained and 
nontrivial.\67\ For instance, if a young woman is taunted by one or 
more young men about her breasts or genital area or both, OCR may 
find that a hostile environment has been created, particularly if 
the conduct has gone on for some time, or takes place throughout the 
school, or if the taunts are made by a number of students. The more 
severe the conduct, the less the need to show a repetitive series of 
incidents; this is particularly true if the harassment is physical. 
For instance, if the conduct is more severe, e.g., attempts to grab 
a female student's breasts or attempts to grab any student's genital 
area or buttocks, it need not be as persistent to create a hostile 
environment. Indeed, a single or isolated incident of sexual 
harassment may, if sufficiently severe, create a hostile 
environment.\68\ On the other hand, conduct that is not severe will 
not create a hostile environment; e.g., a comment by one student to 
another student that she has a nice figure. Indeed, depending on the 
circumstances, this may not even be conduct of a sexual nature.\69\ 
Similarly, because students date one another, a request for a date 
or a gift of flowers, even if unwelcome, would not create a hostile 
environment. However, there may be circumstances in which repeated, 
unwelcome requests for dates or similar conduct could create a 
hostile environment. For example, a person, who has been refused 
previously, may request dates in an intimidating or threatening 
manner.
    <bullet> The identity of and relationship between the alleged 
harasser and the subject or subjects of the harassment. A factor to 
be considered, especially in cases involving allegations of sexual 
harassment of a student by a school employee, is the identity of and 
relationship between the alleged harasser and the subject or 
subjects of the harassment. For example, due to the power a 
professor or teacher has over a student, sexually based conduct by 
that person toward a student is more likely to create a hostile 
environment than similar conduct by another student.\70\
    <bullet> The number of individuals involved. Sexual harassment 
may be committed by an individual or a group. In some cases, verbal 
comments or other conduct from one person might not be sufficient to 
create a hostile environment, but could be if done by a group. 
Similarly, while harassment can be directed toward an individual or 
a group,\71\ the effect of the conduct toward a group may vary, 
depending on the type of conduct and the context. For certain types 
of conduct, there may be ``safety in numbers.'' For example, 
following an individual student and making sexual taunts to him or 
her may be very intimidating to that student, but, in certain 
circumstances, less so to a group of students. On the other hand, 
persistent unwelcome sexual conduct still may create a hostile 
environment if directed toward a group.
    <bullet> The age and sex of the alleged harasser and the subject 
or subjects of the harassment. For example, in the case of younger 
students, sexually harassing conduct is more likely to be 
intimidating if coming from an older student.\72\
    <bullet> The size of the school, location of the incidents, and 
context in which they occurred. Depending on the circumstances of a 
particular case, fewer incidents may have a greater effect at a 
small college than at a large university campus. Harassing conduct 
occurring on a school bus may be more intimidating than similar 
conduct on a school playground because the restricted area makes it 
impossible for students to avoid their harassers.\73\ Harassing 
conduct in a personal or secluded area, such as a dormitory room or 
residence hall, can have a greater effect (e.g., be seen as more 
threatening) than would similar conduct in a more public area. On 
the other hand, harassing conduct in a public place may be more 
humiliating. Each incident must be judged individually.
    <bullet> Other incidents at the school. A series of incidents at 
the school, not involving the same students, could--taken together--
create a hostile environment, even if each by itself would not be 
sufficient.\74\
    <bullet> Incidents of gender-based, but nonsexual harassment. 
Acts of verbal, nonverbal or physical aggression, intimidation or 
hostility based on sex, but not involving sexual activity or 
language, can be combined with incidents of sexual harassment to 
determine if the incidents of sexual harassment are sufficiently 
serious to create a sexually hostile environment.\75\
    It is the totality of the circumstances in which the behavior 
occurs that is critical in determining whether a hostile environment 
exists. Consequently, in using the factors discussed previously to 
evaluate incidents of alleged harassment, it is always important to 
use common sense and reasonable judgement in determining whether a 
sexually hostile environment has been created.
    Welcomeness. In order for conduct of a sexual nature to be 
sexual harassment, it must be unwelcome. Conduct is unwelcome if the 
student did not request or invite it and ``regarded the conduct as 
undesirable or offensive.'' \76\ Acquiescence in the conduct or the 
failure to complain does not always mean that the conduct was 
welcome.\77\ For example, a student may decide not to resist sexual 
advances of another student or may not file a complaint out of fear. 
In addition, a student may not object to a pattern of demeaning 
comments directed at him or her by a group of students out of a 
concern that objections might cause the harassers to make more 
comments. The fact that a student may have accepted the conduct does 
not mean that he or she welcomed it.\78\ Also, the fact that a 
student willingly participated in conduct on one occasion does not 
prevent him or her from indicating that the same conduct has become 
unwelcome on a subsequent occasion. On the other hand, if a student 
actively participates in sexual banter and discussions and gives no 
indication that he or she objects, then the evidence generally will 
not support a conclusion that the conduct was unwelcome.\79\
    If younger children are involved, it may be necessary to 
determine the degree to which they are able to recognize that 
certain sexual conduct is conduct to which they can or should 
reasonably object and the degree to which they can articulate an 
objection. Accordingly, OCR will consider the age of the student, 
the nature of the conduct involved, and other relevant factors in 
determining whether a student had the capacity to welcome sexual 
conduct.
    Schools should be particularly concerned about the issue of 
welcomeness if the harasser is in a position of authority. For 
instance, because students may be encouraged to believe that a 
teacher has absolute authority over the operation of his or her 
classroom, a student may not object to a teacher's sexually 
harassing comments during class; however, this does not necessarily 
mean that the conduct was welcome. Instead, the student may believe 
that any objections would be ineffective in stopping the harassment 
or may fear that by making objections he or she will be singled out 
for harassing comments or other retaliation.
    In addition, OCR must consider particular issues of welcomeness 
if the alleged harassment relates to alleged ``consensual'' sexual 
relationships between a school's adult employees and its students. 
If elementary students are involved, welcomeness will not be an 
issue: OCR will never view sexual conduct between an adult school 
employee and an elementary school student as consensual. In cases 
involving secondary students, there will be a strong presumption 
that sexual conduct between an adult school employee and a student 
is not consensual. In cases involving older secondary students, 
subject to the presumption,\80\ OCR will consider a number of 
factors in determining whether a school employee's sexual advances 
or other sexual conduct could be considered welcome.\81\ In 
addition, OCR will consider these factors in all cases involving 
postsecondary students in making those determinations.\82\ The 
factors include the following:
    <bullet> 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.
    <bullet> 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:
    <bullet> Statements by any witnesses to the alleged incident.
    <bullet> Evidence about the relative credibility of the 
allegedly harassed student and the alleged harasser. For example, 
the level of

[[Page 66104]]

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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> Other contemporaneous evidence. For example, did the 
student claiming harassment write about the conduct and his or her 
reaction to it soon after it occurred (e.g., in a diary or letter)? 
Did the student tell others (friends, parents) about the conduct 
(and his or her reaction to it) soon after it occurred?
    Recipient's Response. Once a school has notice of possible 
sexual harassment of students--whether carried out by employees, 
other students, or third parties--it should take immediate and 
appropriate steps to investigate or otherwise determine what 
occurred and take steps reasonably calculated to end any harassment, 
eliminate a hostile environment if one has been created, and prevent 
harassment from occurring again. These steps are the school's 
responsibility whether or not the student who was harassed makes a 
complaint or otherwise asks the school to take action.\83\ As 
described in the next section, in appropriate circumstances the 
school will also be responsible for taking steps to remedy the 
effects of the harassment on the individual student or students who 
were harassed. What constitutes a reasonable response to information 
about possible sexual harassment will differ depending upon the 
circumstances.
    Response to Student or Parent Reports of Harassment; Response to 
Direct Observation of Harassment by a Responsible Employee. If a 
student or the parent of an elementary or secondary student provides 
information or complains about sexual harassment of the student, the 
school should initially discuss what actions the student or parent 
is seeking in response to the harassment. The school should explain 
the avenues for informal and formal action, including a description 
of the grievance procedure that is available for sexual harassment 
complaints and an explanation of how the procedure works. If a 
responsible school employee has directly observed sexual harassment 
of a student, the school should contact the student who was harassed 
(or the parent, depending upon the age of the student),\84\ explain 
that the school is responsible for taking steps to correct the 
harassment, and provide the same information described in the 
previous sentence.
    Regardless of whether the student who was harassed, or his or 
her parent, decides to file a formal complaint or otherwise request 
action on the student's behalf (including in cases involving direct 
observation by a responsible employee), the school must promptly 
investigate to determine what occurred and then take appropriate 
steps to resolve the situation. The specific steps in an 
investigation will vary depending upon the nature of the 
allegations, the source of the complaint, the age of the student or 
students involved, the size and administrative structure of the 
school, and other factors. However, in all cases the inquiry must be 
prompt, thorough, and impartial. (Requests by the student who was 
harassed for confidentiality or for no action to be taken, 
responding to notice of harassment from other sources, and the 
components of a prompt and equitable grievance procedure are 
discussed in subsequent sections of this guidance.)
    It may be appropriate for a school to take interim measures 
during the investigation of a complaint. For instance, if a student 
alleges that he or she has been sexually assaulted by another 
student, the school may decide to place the students immediately in 
separate classes or in different housing arrangements on a campus, 
pending the results of the school's investigation. Similarly, if the 
alleged harasser is a teacher, allowing the student to transfer to a 
different class may be appropriate. In cases involving potential 
criminal conduct, school personnel should determine whether 
appropriate law enforcement authorities should be notified. In all 
cases, schools should make every effort to prevent disclosure of the 
names of all parties involved, except to the extent necessary to 
carry out an investigation.
    If a school determines that sexual harassment has occurred, it 
should take reasonable, timely, age-appropriate, and effective 
corrective action, including steps tailored to the specific 
situation.\85\ Appropriate steps should be taken to end the 
harassment. For example, school personnel may need to counsel, warn, 
or take disciplinary action against the harasser, based on the 
severity of the harassment or any record of prior incidents or 
both.\86\ A series of escalating consequences may be necessary if 
the initial steps are ineffective in stopping the harassment.\87\ In 
some cases, it may be appropriate to further separate the harassed 
student and the harasser, e.g., by changing housing arrangements 
\88\ or directing the harasser to have no further contact with the 
harassed student. Responsive measures of this type should be 
designed to minimize, as much as possible, the burden on the student 
who was harassed. If the alleged harasser is not a student or 
employee of the recipient, OCR will consider the level of control 
the school has over the harasser in determining what response would 
be appropriate.\89\
    Steps should also be taken to eliminate any hostile environment 
that has been created. For example, if a female student has been 
subjected to harassment by a group of other students in a class, the 
school may need to deliver special training or other interventions 
for that class to repair the educational environment. If the school 
offers the student the option of withdrawing from a class in which a 
hostile environment occurred, the school should assist the student 
in making program or schedule changes and ensure that none of the 
changes adversely affect the student's academic record. Other 
measures may include, if appropriate, directing a harasser to 
apologize to the harassed student. If a hostile environment has 
affected an entire school or campus, an effective response may need 
to include dissemination of information, the issuance of new policy 
statements, or other steps that are designed to clearly communicate 
the message that the school does not tolerate harassment and will be 
responsive to any student who reports that conduct.
    In some situations, a school may be required to provide other 
services to the student who was harassed if necessary to address the 
effects of the harassment on that student.\90\ For example, if an 
instructor gives a student a low grade because the student failed to 
respond to his sexual advances, as discussed in the section on 
``Harassment by Teachers and Other Employees,'' the employee engaged 
in the harassment in the context of providing aid, benefits, or 
services to students. Because the school is responsible for the 
discriminatory denial or limitation of a benefit to the student, the 
school is responsible for taking appropriate corrective action, 
including remedying the effects of the harassment on the victim. 
Thus, the school may be required to make arrangements for an 
independent reassessment of the student's work, if feasible, and 
change the grade accordingly; make arrangements for the student to 
take the course again with a different instructor; provide tutoring; 
make tuition adjustments; offer reimbursement for professional 
counseling; or take other measures that are appropriate to the 
circumstances. As another example, if a school delays responding or 
responds inappropriately to information about harassment, such as a 
case in which the school ignores complaints by a student that he or 
she is being sexually harassed by a classmate, the school will be 
required to remedy the effects of the harassment that could have 
been prevented had the school responded promptly and effectively.
    Finally, a school should take steps to prevent any further 
harassment \91\ and to

[[Page 66105]]

prevent any retaliation against the student who made the complaint 
(or was the subject of the harassment), against the person who filed 
a complaint on behalf of a student, or against those who provided 
information as witnesses.\92\ At a minimum, this includes making 
sure that the harassed students and their parents know how to report 
any subsequent problems and making follow-up inquiries to see if 
there have been any new incidents or any retaliation. To prevent 
recurrences, counseling for the harasser may be appropriate to 
ensure that he or she understands what constitutes harassment and 
the effects it can have. In addition, depending on how widespread 
the harassment was and whether there have been any prior incidents, 
the school may need to provide training for the larger school 
community to ensure that students, parents, and teachers can 
recognize harassment if it recurs and know how to respond.\93\
    Requests by the Harassed Student for Confidentiality. The scope 
of a reasonable response also may depend upon whether a student, or 
parent of a minor student, reporting harassment asks that the 
student's name not be disclosed to the harasser or that nothing be 
done about the alleged harassment. In all cases, a school should 
discuss confidentiality standards and concerns with the complainant 
initially. The school should inform the student that the request may 
limit the school's ability to respond. The school also should tell 
the student that Title IX prohibits retaliation and that, if he or 
she is afraid of reprisals from the alleged harasser, the school 
will take steps to prevent retaliation and will take strong 
responsive actions if retaliation occurs. If the student continues 
to ask that his or her name not be revealed, the school should take 
all reasonable steps to investigate and respond to the complaint 
consistent with that request as long as doing so does not preclude 
the school from responding effectively to the harassment and 
preventing harassment of other students. Thus, for example, a 
reasonable response would not require disciplinary action against an 
alleged harasser if a student, who was the only student harassed, 
insists that his or her name not be revealed, and the alleged 
harasser could not respond to the charges of sexual harassment 
without that information.
    At the same time, a school should evaluate the confidentiality 
request in the context of its responsibility to provide a safe and 
nondiscriminatory environment for all students. The factors that a 
school may consider in this regard include the seriousness of the 
alleged harassment, the age of the student harassed, whether there 
have been other complaints or reports of harassment against the 
alleged harasser, and the rights of the accused individual to 
receive information about the accuser and the allegations if a 
formal proceeding with sanctions may result.\94\
    Although a student's request to have his or her name withheld 
may limit the school's ability to respond fully to an individual 
complaint of harassment, other means may be available to address the 
harassment. There are steps a recipient can take to limit the 
effects of the alleged harassment and prevent its recurrence without 
initiating formal action against the alleged harasser or revealing 
the identity of the complainant. Examples include conducting sexual 
harassment training for the school site or academic department where 
the problem occurred, taking a student survey concerning any 
problems with harassment, or implementing other systemic measures at 
the site or department where the alleged harassment has occurred.
    In addition, by investigating the complaint to the extent 
possible--including by reporting it to the Title IX coordinator or 
other responsible school employee designated pursuant to Title IX--
the school may learn about or be able to confirm a pattern of 
harassment based on claims by different students that they were 
harassed by the same individual. In some situations there may be 
prior reports by former students who now might be willing to come 
forward and be identified, thus providing a basis for further 
corrective action. In instances affecting a number of students (for 
example, a report from a student that an instructor has repeatedly 
made sexually explicit remarks about his or her personal life in 
front of an entire class), an individual can be put on notice of 
allegations of harassing behavior and counseled appropriately 
without revealing, even indirectly, the identity of the student who 
notified the school. Those steps can be very effective in preventing 
further harassment.
    Response to Other Types of Notice. The previous two sections 
deal with situations in which a student or parent of a student who 
was harassed reports or complains of harassment or in which a 
responsible school employee directly observes sexual harassment of a 
student. If a school learns of harassment through other means, for 
example, if information about harassment is received from a third 
party (such as from a witness to an incident or an anonymous letter 
or telephone call), different factors will affect the school's 
response. These factors include the source and nature of the 
information; the seriousness of the alleged incident; the 
specificity of the information; the objectivity and credibility of 
the source of the report; whether any individuals can be identified 
who were subjected to the alleged harassment; and whether those 
individuals want to pursue the matter. If, based on these factors, 
it is reasonable for the school to investigate and it can confirm 
the allegations, the considerations described in the previous 
sections concerning interim measures and appropriate responsive 
action will apply.
    For example, if a parent visiting a school observes a student 
repeatedly harassing a group of female students and reports this to 
school officials, school personnel can speak with the female 
students to confirm whether that conduct has occurred and whether 
they view it as unwelcome. If the school determines that the conduct 
created a hostile environment, it can take reasonable, age-
appropriate steps to address the situation. If on the other hand, 
the students in this example were to ask that their names not be 
disclosed or indicate that they do not want to pursue the matter, 
the considerations described in the previous section related to 
requests for confidentiality will shape the school's response.
    In a contrasting example, a student newspaper at a large 
university may print an anonymous letter claiming that a professor 
is sexually harassing students in class on a daily basis, but the 
letter provides no clue as to the identity of the professor or the 
department in which the conduct is allegedly taking place. Due to 
the anonymous source and lack of specificity of the information, a 
school would not reasonably be able to investigate and confirm these 
allegations. However, in response to the anonymous letter, the 
school could submit a letter or article to the newspaper reiterating 
its policy against sexual harassment, encouraging persons who 
believe that they have been sexually harassed to come forward, and 
explaining how its grievance procedures work.
    Prevention. A policy specifically prohibiting sexual harassment 
and separate grievance procedures for violations of that policy can 
help ensure that all students and employees understand the nature of 
sexual harassment and that the school will not tolerate it. Indeed, 
they might even bring conduct of a sexual nature to the school's 
attention so that the school can address it before it becomes 
sufficiently serious as to create a hostile environment. Further, 
training for administrators, teachers, and staff and age-appropriate 
classroom information for students can help to ensure that they 
understand what types of conduct can cause sexual harassment and 
that they know how to respond.
    Prompt and Equitable Grievance Procedures. Schools are required 
by the Title IX regulations to adopt and publish a policy against 
sex discrimination and grievance procedures providing for prompt and 
equitable resolution of complaints of discrimination on the basis of 
sex.\95\ Accordingly, regardless of whether harassment occurred, a 
school violates this requirement of the Title IX regulations if it 
does not have those procedures and policy in place.\96\
    A school's sex discrimination grievance procedures must apply to 
complaints of sex discrimination in the school's education programs 
and activities filed by students against school employees, other 
students, or third parties.\97\ Title IX does not require a school 
to adopt a policy specifically prohibiting sexual harassment or to 
provide separate grievance procedures for sexual harassment 
complaints. However, its nondiscrimination policy and grievance 
procedures for handling discrimination complaints must provide 
effective means for preventing and responding to sexual harassment. 
Thus, if, because of the lack of a policy or procedure specifically 
addressing sexual harassment, students are unaware of what kind of 
conduct constitutes sexual harassment or that such conduct is 
prohibited sex discrimination, a school's general policy and 
procedures relating to sex discrimination complaints will not be 
considered effective.\98\
    OCR has identified a number of elements in evaluating whether a 
school's grievance procedures are prompt and equitable,

[[Page 66106]]

including whether the procedures provide for--
    <bullet> Notice to students, parents of elementary and secondary 
students, and employees of the procedure, including where complaints 
may be filed;
    <bullet> Application of the procedure to complaints alleging 
harassment carried out by employees, other students, or third 
parties;
    <bullet> Adequate, reliable, and impartial investigation of 
complaints, including the opportunity to present witnesses and other 
evidence;
    <bullet> Designated and reasonably prompt timeframes for the 
major stages of the complaint process;
    <bullet> Notice to the parties of the outcome of the complaint; 
\99\ and
    <bullet> An assurance that the school will take steps to prevent 
recurrence of any harassment and to correct its discriminatory 
effects on the complainant and others, if appropriate.\100\
    Many schools also provide an opportunity to appeal the findings 
or remedy or both. In addition, because retaliation is prohibited by 
Title IX, schools may want to include a provision in their 
procedures prohibiting retaliation against any individual who files 
a complaint or participates in a harassment inquiry.
    Procedures adopted by schools will vary considerably in detail, 
specificity, and components, reflecting differences in audiences, 
school sizes and administrative structures, State or local legal 
requirements, and past experience. In addition, whether complaint 
resolutions are timely will vary depending on the complexity of the 
investigation and the severity and extent of the harassment. During 
the investigation it is a good practice for schools to inform 
students who have alleged harassment about the status of the 
investigation on a periodic basis.
    A grievance procedure applicable to sexual harassment complaints 
cannot be prompt or equitable unless students know it exists, how it 
works, and how to file a complaint. Thus, the procedures should be 
written in language appropriate to the age of the school's students, 
easily understood, and widely disseminated. Distributing the 
procedures to administrators, or including them in the school's 
administrative or policy manual, may not by itself be an effective 
way of providing notice, as these publications are usually not 
widely circulated to and understood by all members of the school 
community. Many schools ensure adequate notice to students by having 
copies of the procedures available at various locations throughout 
the school or campus; publishing the procedures as a separate 
document; including a summary of the procedures in major 
publications issued by the school, such as handbooks and catalogs 
for students, parents of elementary and secondary students, faculty, 
and staff; and identifying individuals who can explain how the 
procedures work.
    A school must designate at least one employee to coordinate its 
efforts to comply with and carry out its Title IX 
responsibilities.\101\ The school must notify all of its students 
and employees of the name, office address, and telephone number of 
the employee or employees designated.\102\ Because it is possible 
that an employee designated to handle Title IX complaints may 
himself or herself engage in harassment, a school may want to 
designate more than one employee to be responsible for handling 
complaints in order to ensure that students have an effective means 
of reporting harassment.\103\ While a school may choose to have a 
number of employees responsible for Title IX matters, it is also 
advisable to give one official responsibility for overall 
coordination and oversight of all sexual harassment complaints to 
ensure consistent practices and standards in handling complaints. 
Coordination of recordkeeping (for instance, in a confidential log 
maintained by the Title IX coordinator) will also ensure that the 
school can and will resolve recurring problems and identify students 
or employees who have multiple complaints filed against them.\104\ 
Finally, the school must make sure that all designated employees 
have adequate training as to what conduct constitutes sexual 
harassment and are able to explain how the grievance procedure 
operates.\105\
    Grievance procedures may include informal mechanisms for 
resolving sexual harassment complaints to be used if the parties 
agree to do so.\106\ OCR has frequently advised schools, however, 
that it is not appropriate for a student who is complaining of 
harassment to be required to work out the problem directly with the 
individual alleged to be harassing him or her, and certainly not 
without appropriate involvement by the school (e.g., participation 
by a counselor, trained mediator, or, if appropriate, a teacher or 
administrator). In addition, the complainant must be notified of the 
right to end the informal process at any time and begin the formal 
stage of the complaint process. In some cases, such as alleged 
sexual assaults, mediation will not be appropriate even on a 
voluntary basis. Title IX also permits the use of a student 
disciplinary procedure not designed specifically for Title IX 
grievances to resolve sex discrimination complaints, as long as the 
procedure meets the requirement of affording a complainant a 
``prompt and equitable'' resolution of the complaint.
    In some instances, a complainant may allege harassing conduct 
that constitutes both sex discrimination and possible criminal 
conduct. Police investigations or reports may be useful in terms of 
fact-gathering. However, because legal standards for criminal 
investigations are different, police investigations or reports may 
not be determinative of whether harassment occurred under Title IX 
and do not relieve the school of its duty to respond promptly.\107\ 
Similarly, schools are cautioned about using the results of 
insurance company investigations of sexual harassment allegations. 
The purpose of an insurance investigation is to assess liability 
under the insurance policy, and the applicable standards may well be 
different from those under Title IX. In addition, a school is not 
relieved of its responsibility to respond to a sexual harassment 
complaint filed under its grievance procedure by the fact that a 
complaint has been filed with OCR.\108\
    Finally, a public school's employees may have certain due 
process rights under the United States Constitution. The 
Constitution also guarantees due process to students in public and 
State-supported schools who are accused of certain types of 
infractions. The rights established under Title IX must be 
interpreted consistently with any federally guaranteed rights 
involved in a complaint proceeding. In both public and private 
schools, additional or separate rights may be created for employees 
or students by State law, institutional regulations and policies, 
such as faculty or student handbooks, and collective bargaining 
agreements. Schools should be aware of these rights and their legal 
responsibilities to those accused of harassment. Indeed, procedures 
that ensure the Title IX rights of the complainant, while at the 
same time according due process to both parties involved, will lead 
to sound and supportable decisions. Schools should ensure that steps 
to accord due process rights do not restrict or unnecessarily delay 
the protections provided by Title IX to the complainant.
    First Amendment. In cases of alleged harassment, the protections 
of the First Amendment must be considered if issues of speech or 
expression are involved.\109\ Free speech rights apply in the 
classroom (e.g., classroom lectures and discussions)\110\ and in all 
other education programs and activities of public schools (e.g., 
public meetings and speakers on campus; campus debates, school plays 
and other cultural events \111\; and student newspapers, journals, 
and other publications \112\). In addition, First Amendment rights 
apply to the speech of students and teachers.\113\
    Title IX is intended to protect students from sex 
discrimination, not to regulate the content of speech. OCR 
recognizes that the offensiveness of a particular expression as 
perceived by some students, standing alone, is not a legally 
sufficient basis to establish a sexually hostile environment under 
Title IX.\114\ In order to establish a violation of Title IX, the 
harassment must be sufficiently serious to deny or limit a student's 
ability to participate in or benefit from the education 
program.\115\
    Moreover, in regulating the conduct of its students and its 
faculty to prevent or redress discrimination prohibited by Title IX 
(e.g., in responding to harassment that is sufficiently serious as 
to create a hostile environment), a school must formulate, 
interpret, and apply its rules so as to protect academic freedom and 
free speech rights. For instance, while the First Amendment may 
prohibit a school from restricting the right of students to express 
opinions about one sex that may be considered derogatory, the school 
can take steps to denounce those opinions and ensure that competing 
views are heard. The age of the students involved and the location 
or forum may affect how the school can respond consistently with the 
First Amendment.\116\ As an example of the application of free 
speech rights to allegations of sexual harassment, consider the 
following:
    Example 1: In a college level creative writing class, a 
professor's required reading list includes excerpts from literary 
classics that contain descriptions of explicit sexual conduct, 
including scenes that depict women

[[Page 66107]]

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 reasonable and appropriate actions against the 
students, including disciplinary action if necessary, to remedy the 
hostile environment and prevent future harassment.

Footnotes

    \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.
    \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, 100th Cong., 1st Sess. 14 (1987); 
Sexual Harassment Guidance: Harassment of Students by School 
Employees, Other Students, or Third Parties, (1997 guidance), 62 FR 
12034 (1997).
    \4\ 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 26464 (May 5, 2000) 
(Department's proposed rulemaking to amend the Title IX regulations 
to incorporate the statutory definition of ``program or activity'').
    \5\ 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).
    \6\ 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.
    \7\ 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).
    \8\ Title IX and the regulations implementing it prohibit 
discrimination ``on the basis of sex;'' they do not restrict sexual 
harassment to those circumstances in which the harasser only 
harasses members of the opposite sex. See 34 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 Kinman v. 
Omaha Public School Dist., 94 F.3d 463, 468 (8th Cir. 1996) (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 (9th Cir. 
1994), cert. denied, 115 S.Ct. 733 (1995) (Title VII case); 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).
    \9\ 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.
    \10\ See Williamson v. A.G. Edwards & Sons, Inc., 876 F2d 69, 70 
(8th Cir. 1989, cert. denied 493 U.S. 1089 (1990) (Title VII case); 
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).
    \11\ 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

[[Page 66108]]

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).
    \12\ See 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 
also Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir. 1987) 
(Title VII case; 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) (Title VII case; 
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) (Title VII 
case).
    \13\ See Harris, 510 U.S. at 23; Andrews v. City of 
Philadelphia, 895 F.2d 1469, 1485-86 (3rd Cir. 1990) (Title VII 
case; court directed trial court to consider sexual conduct as well 
as theft of female employees' files and work, destruction of 
property, and anonymous phone calls in determining if there had been 
sex discrimination); see also Hall v. Gus Construction Co., 842 F.2d 
1010, 1014 (8th Cir. 1988) (Title VII case; 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).
    \14\ 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.
    \15\ 34 CFR 106.4.
    \16\ 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).
    \17\ 34 CFR 106.31(b)(1).
    \18\ 34 CFR 106.31(b)(2).
    \19\ 34 CFR 106.31(b)(3).
    \20\ 34 CFR 106.31(b)(4).
    \21\ 34 CFR 106.31(b)(6).
    \22\ 34 CFR 106.31(b)(7).
    \23\ 34 CFR 106.3(a).
    \24\ 34 CFR 106.9.
    \25\ 34 CFR 106.8(b).
    \26\ 34 CFR 106.8(a).
    \27\ 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.
    \28\ For this reason, 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. See Davis, 526 U.S. at 
653.
    \29\ 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).
    \30\ See section on ``Notice of Employee, Peer, or Third Party 
Harassment.''
    \31\ See section on ``Notice of Employee, Peer, or Third Party 
Harassment.''
    \32\ See section on ``Applicability of Title IX'' for scope of 
coverage.
    \33\ Davis, 526 U.S. at 646.
    \34\ See section on ``Notice of Employee, Peer, or Third Party 
Harassment.''
    \35\ 34 CFR 106.31(b).
    \36\ 34 CFR 106.31(b).
    \37\ See section on ``Notice of Employee, Peer, or Third Party 
Harassment.''
    \38\ Cf. Davis, 526 U.S. at 646.
    \39\ 34 CFR 106.31(b).
    \40\ 34 CFR 106.31(b).
    \41\ 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).
    \42\ 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.
    Although there is some overlap between individuals who are 
``responsible employees'' for the purposes of receiving notice about 
alleged harassment as described in this guidance and individuals who 
are appropriate school officials with authority to address the 
alleged discrimination and take corrective action, and, thus, 
receive actual notice for the purposes of private lawsuits for money 
damages as specified by the Court in Gebser, 524 U.S. at 290, and 
Davis, 526 U.S. at 642, the concept of responsible employee 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.
    \43\ 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).
    \44\ 34 CFR 106.31. See Yates v. Avco Corp., 819 F.2d 630, 636 
(6th Cir. 1987) (Title VII case); Katz v. Dole, 709 F.2d 251, 256 
(4th Cir. 1983) (same).
    \45\ 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).
    \46\ 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) (Title VII case; ``[s]exual harassment * * * was so

[[Page 66109]]

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 (2nd 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).
    \47\ 34 CFR 106.9 and 106.8(b).
    \48\ 34 CFR 106.8(b) and 106.31(b).
    \49\ 34 CFR 106.9.
    \50\ 34 CFR 106.8(b).
    \51\ 34 CFR 106.31.
    \52\ 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.' Sec. 106.3.'').
    \53\ 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.
    \54\ The terms quid pro quo and ``hostile environment'' sexual 
harassment do not appear in the Title IX statutory text or 
regulations, but were first used by the courts in the context of 
Title VII and then Title IX. See Meritor Savings Bank, 477 U.S. at 
65 (finding that both quid pro quo and hostile environment claims 
are cognizable under Title VII); Burlington Industries, Inc. v. 
Ellereth, 524 U.S. 742, 752 (1998) ``The principal significance of 
the distinction between [quid pro quo and hostile environment sexual 
harassment] is to instruct that Title VII is violated by either 
explicit or constructive alterations in the terms or conditions of 
employment and to explain the latter must be severe or pervasive''). 
While Title VII agency principles are not applicable to a finding of 
liability for monetary damages for sexual harassment in a private 
lawsuit under Title IX, see Gebser, 524 U.S. at 228, Title VII case 
law remains useful in determining conduct that constitutes sexual 
harassment under Title IX. Davis, 526 U.S. at 651.
    \55\ 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, 477 U.S. at 60-
61 (demands for sexual favors, sexual advances, fondling, indecent 
exposure, sexual intercourse, rape, sufficient to raise hostile 
environment claim under Title VII); Harris, 510 U.S. at 20 (sexually 
derogatory comments and innuendo may support a sexual harassment 
claim under Title VII); Ellison v. Brady, 924 F.2d 872, 873-74, 880 
(9th Cir. 1991) (allegations sufficient to state 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. at 1564-65 
(sexually derogatory taunts and innuendo can be the basis of a 
harassment claim); Denver School Dist. #2, OCR Case No. 08-92-1007 
(same as to allegations of vulgar language and obscenities, pictures 
of nude women on office walls and desks, unwelcome touching, 
sexually offensive jokes, bribery to perform sexual acts, indecent 
exposure); Nashoba Regional High School, OCR Case No. 01-92-1377 
(same as to year-long campaign of derogatory, sexually explicit 
graffiti and remarks directed at one student.)
    \56\ See note 6.
    \57\ 34 CFR 106.31. 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 resident 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 a college student's 
agreeing to be spanked should she not attain a certain grade may 
constitute quid pro quo harassment). While recognizing the 
differences between students in schools and employees in the 
workplace, including age and other factors, quid pro quo harassment 
of students by their teachers or other school employees is analogous 
to harassment of employees by their supervisors where, as described 
in Ellerth, 524 U.S. at 753-54, 761-62, the employee suffers a 
tangible employment action.
    \58\ 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).
    \59\ 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.
    \60\ See Davis, 526 U.S. at 650 (conduct must be ``objectively 
offensive'' to trigger liability for money damages). 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).
    \61\ See Davis, 526 U.S. at 651, citing both Oncale, 523 U.S. at 
82, and OCR's 1997 guidance (62 FR 12041-12042).
    \62\ Harris, 510 U.S. at 23.
    \63\ 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).
    \64\ Doe v. Petaluma, 830 F.Supp. at 1566.
    \65\ See Harris, 510 U.S. at 22 (holding that tangible harm is 
not required). In determining whether harm is sufficient, several 
factors are to be considered, including frequency, severity, whether 
the conduct was threatening or humiliating versus a mere offensive 
utterance, and whether it unreasonably interfered with work 
performance. No single factor is required; similarly, psychological 
harm, while relevant, is not required. See id.
    \66\ See Waltman v. Int'l Paper Co., 875 F.2d 468, 477 (5th Cir. 
1989) (Title VII case; holding that although not specifically 
directed at the plaintiff, sexually explicit graffiti on the walls 
was ``relevant to her claim''); see also Hall, 842 F.2d at 1015 
(evidence of sexual harassment directed at others is relevant to 
show hostile environment under Title VII).
    \67\ See, e.g., Andrews, 895 F.2d at 1484 (``Harassment is 
pervasive when `incidents of harassment occur either in concert or 
with

[[Page 66110]]

regularity' ''); Moylan v. Maries County, 792 F.2d 746, 749 (8th 
Cir. 1986) (Title VII case).
    \68\ 34 CFR 106.31(b). 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).
    \69\ 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).
    \70\ 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 like 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).
    \71\ See, e.g., McKinney, 765 F.2d at 1138-49; Robinson v. 
Jacksonville Shipyards, 760 F.Supp. 1486, 1522 (M.D. Fla. 1991).
    \72\ Cf. Patricia H., 830 F.Supp. at 1297.
    \73\ See, e.g., Barrett, 584 F.Supp. at 30 (finding harassment 
occurring in a car from which the victim could not escape 
particularly severe).
    \74\ 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).
    \75\ 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) (Title 
VII case).
    \76\ Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 
1982) (Title VII case).
    <SUP>77</SUP> 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.''
    <SUP>78</SUP> 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 (7th Cir. 1994) 
(Title VII case; 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 * * *'').
    <SUP>79</SUP> 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.
    <SUP>80</SUP> The school bears the burden of rebutting the 
presumption.
    <SUP>81</SUP> Of course, nothing in Title IX would prohibit a 
school from implementing policies prohibiting sexual conduct or 
sexual relationships between students and adult employees.
    <SUP>82</SUP> See note 81.
    <SUP>83</SUP> 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.
    <SUP>84</SUP> 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.
    <SUP>85</SUP> Bundy v. Jackson, 641 F.2d 934, 947 (D.C. Cir. 
1981) (employers should take corrective and preventive measures 
under Title VII); accord, Jones v. Flagship Int'l, 793 F.2d 714, 
719-720 (5th Cir. 1986) (employer should take prompt remedial action 
under Title VII).
    <SUP>86</SUP> See Waltman, 875 F.2d at 479 (appropriateness of 
employer's remedial action under Title VII will depend on the 
``severity and persistence of the harassment and the effectiveness 
of any initial remedial steps''); Dornhecker v. Malibu Grand Prix 
Corp., 828 F.2d 307, 309-10 (5th Cir. 1987) (Title VII case; holding 
that a company's quick decision to remove the harasser from the 
victim was adequate remedial action).
    <SUP>87</SUP> See Intlekofer v. Turnage, 973 F.2d 773, 779-780 
(9th Cir. 1992) (Title VII case) (holding that the employer's 
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).
    <SUP>88</SUP> 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).
    <SUP>89</SUP> See section on ``Harassment by Other Students or 
Third Parties.''
    <SUP>90</SUP> 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).
    <SUP>91</SUP> Even if the harassment stops without the school's 
involvement, the school may still need to take steps to prevent or 
deter any future harassment--to inform the school community that 
harassment will not be tolerated. Fuller v. City of Oakland, 47 F.3d 
1522, 1528-29 (9th Cir. 1995).
    <SUP>92</SUP> 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.
    <SUP>93</SUP> 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

[[Page 66111]]

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).
    <SUP>94</SUP> 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.
    <SUP>95</SUP> 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.
    <SUP>96</SUP> Fenton Community High School Dist. #100, OCR Case 
05-92-1104.
    <SUP>97</SUP> 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.
    <SUP>98</SUP> 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).
    <SUP>99</SUP> 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 94. 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.
    \100\ The section in the guidance on ``Recipient's Response'' 
provides examples of reasonable and appropriate corrective action.
    \101\ 34 CFR 106.8(a).
    \102\ Id. 
    \103\ See Meritor, 477 U.S. at 72-73.
    \104\ University of California, Santa Cruz, OCR Case No. 09-93-
2131. This is true for formal as well as informal complaints. See 
University of Maine at Machias, OCR Case No. 01-94-6001 (school's 
new procedures not found in violation of Title IX in part because 
they require written records for informal as well as formal 
resolutions). These records need not be kept in a student's or 
employee's individual file, but instead may be kept in a central 
confidential location.
    \105\ 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.
    \106\ 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.
    \107\ 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).
    \108\ Cf. EEOC v. Board of Governors of State Colleges and 
Universities, 957 F.2d 424 (7th Cir. 1992) (Title VII case), cert. 
denied, 506 U.S. 906 (1992).
    \109\ 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.
    \110\ 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).
    \111\ 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).
    \112\ 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.)
    \113\ 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.)
    \114\ 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.)
    \115\ 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 
sufficent 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).
    \116\ 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.''), with Iota Xi, 993 F.2d 386 (holding that, 
notwithstanding a university's mission to create a culturally 
diverse learning environment and its substantial interest in 
maintaining a campus free of discrimination, it could not punish 
students who engaged in an offensive skit with racist and sexist 
overtones).

Appendix B

    This Appendix B provides the text, except as specifically noted, 
of our analysis of comments received from interested parties in 
response to a draft of the 1997 guidance, and our response to those 
comments (62 FR 12035). This text is included for the convenience of 
interested persons who may not be familiar with the issues that were 
resolved in 1997. As specifically noted, we are not including the 
1997 discussion regarding a conflict among the Federal circuit 
courts because that conflict was resolved by the Supreme Court in 
Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). 
Also, where the 1997 text uses the terms ``liable'' or 
``liability,'' the reader is directed to consult the discussion in 
the SUPPLEMENTARY INFORMATION section of this notice under the 
heading Title IX Compliance Standard, which explains the

[[Page 66112]]

scope of the proposed revised guidance and why these terms are not 
used in the proposed revised guidance.

Analysis of Comments and Changes

    In response to the Assistant Secretary's invitations to comment, 
OCR received approximately 70 comments on the Peer Guidance and 
approximately 10 comments on the Employee Guidance. Many commenters 
stated that the guidance documents provided comprehensive, clear, 
and useful information to schools. For instance, one commenter 
stated that the Peer Guidance was ``a godsend * * * in one 
convenient place [it provides] the clear implications of the 
statutes, regulations, and case law.'' Another commenter stated that 
the Guidance ``will assist universities * * * in maintaining a 
harassment-free educational environment.''
    Commenters also provided many specific suggestions and examples 
regarding how the final Guidance could be more complete and clearer. 
Many of these suggested changes have been incorporated into the 
Guidance.
    The preamble discusses recurring and significant recommendations 
regarding the clarity and completeness of the document. While the 
invitations to comment on the Peer Guidance and Employee Guidance 
did not request substantive comments regarding OCR's longstanding 
policy and practice in the area of sexual harassment, some 
commenters did provide these comments. In instances in which OCR 
could provide additional useful information to readers related to 
these comments, it has done so in the preamble. Comments are grouped 
by subject and are discussed in the following sections.

The Need for Additional Guidance

    Comments: Many commenters agreed that a document combining the 
Peer Guidance and the Employee Guidance would provide more clarity 
to schools. Commenters disagreed, however, regarding whether, and 
what type of, additional information is needed to enhance schools' 
understanding of their legal obligations under Title IX. Some 
commenters asked for more detailed analysis regarding the applicable 
legal standards, including hard and fast rules for determining what 
is harassment and how a school should respond. Other commenters, by 
contrast, found OCR's guidance documents, including the extensive 
legal citations, to be too detailed and ``legalistic.'' They 
expressed a need for a document that is simpler and more accessible 
to teachers, parents, school administrators, and others who need to 
know how to recognize, report, or respond to sexual harassment.
    Discussion: As the Guidance makes clear, it is impossible to 
provide hard and fast rules applicable to all instances of sexual 
harassment. Instead, the Guidance provides factors to help schools 
make appropriate judgments.
    In response to concerns for more analysis of the legal 
standards, OCR has provided additional examples in the Guidance to 
illustrate how the Title IX legal standards may apply in particular 
cases. It is important to remember that examples are just that; they 
do not cover all the types of situations that may arise. Moreover, 
they may not illustrate the only way to respond to sexual harassment 
of students because there is often no one right way to respond.
    OCR also believes that there is a legitimate concern that school 
administrators, teachers, students, and parents need an accessible 
document to assist them in recognizing and appropriately responding 
to sexual harassment. Accordingly, OCR has developed, in addition to 
the final Guidance, a pamphlet for conveying basic information 
regarding parties' rights and responsibilities under Title IX. The 
pamphlet includes information from the Guidance that would be most 
useful to these groups as they confront issues of sexual harassment. 
Concurrent with the issuance of this Guidance, the pamphlet will be 
issued with copies available from all OCR offices and an electronic 
posting on OCR's website. For a copy of the pamphlet, individuals 
may call OCR's Customer Service Team at [(202) 205-5557] or toll-
free 1-800-421-3481. Copies will also be available from all OCR 
enforcement offices, and the pamphlet will be posted on OCR's site 
on the Internet at URL http://www.ed.gov/offices/OCR/ocrpubs.html.

Additional Guidance on the First Amendment

    Comments: Many commenters asked OCR to provide additional 
guidance regarding the interplay of academic freedom and free speech 
rights with Title IX's prohibition of sexual harassment. Several of 
these commenters wanted OCR to announce hard and fast rules in this 
area, although commenters disagreed on what those rules should be. 
For instance, one commenter requested that OCR tell schools that the 
First Amendment does not prevent schools from punishing speech that 
has no legitimate pedagogical purpose. Another commenter, by 
contrast, wanted OCR to state that classroom speech simply can never 
be the basis for a sexual harassment complaint. Other commenters 
requested that OCR include specific examples regarding the 
application of free speech rights.
    Discussion: As the documents published for comment indicated, 
the resolution of cases involving potential First Amendment issues 
is highly fact- and context-dependent. Thus, hard and fast rules are 
not appropriate.
    However, in order to respond to concerns that schools need 
assistance in making these determinations, OCR has provided 
additional examples in the Guidance regarding the application of the 
First Amendment principles discussed there.

Application of Guidance to Harassment by Third Parties

    Comments: Several commenters stated that it was unclear whether 
the Guidance applies if a student alleges harassment by a third 
party, i.e., by someone who is not an employee or student at the 
school.
    Discussion: The Guidance clarifies that the principles in the 
Guidance apply to situations in which, for example, a student 
alleges that harassment by a visiting professional speaker or 
members of a visiting athletic team created a sexually hostile 
environment. The Peer Guidance did, in fact, discuss the standards 
applicable to the latter situation in which students from another 
school harassed the school's students.
    The applicable standards have not changed, but the final 
Guidance clarifies that the same standards also apply if adults who 
are not employees or agents of the school engage in harassment of 
students.

Application of Guidance to Harassment Based on Sexual Orientation

    Comments: Several commenters indicated that, in light of OCR's 
stated policy that Title IX's prohibition against sexual harassment 
applies regardless of the sex of the harassed student or of the sex 
of the alleged harasser, the Guidance was confusing regarding the 
statement that Title IX does not apply to discrimination on the 
basis of sexual orientation.
    Discussion: The Guidance has been clarified to indicate that if 
harassment is based on conduct of a sexual nature, it may be sexual 
harassment prohibited by Title IX even if the harasser and the 
harassed are the same sex or the victim of harassment is gay or 
lesbian. If, for example, harassing conduct of a sexual nature is 
directed at gay or lesbian students, it may create a sexually 
hostile environment and may constitute a violation of Title IX in 
the same way that it may for heterosexual students. The Guidance 
provides examples to illustrate the difference between this type of 
conduct, which may be prohibited by Title IX, and conduct 
constituting discrimination on the basis of sexual orientation, 
which is not prohibited by Title IX. The Guidance also indicates 
that some State or local laws or other Federal authority may 
prohibit discrimination on the basis of sexual orientation.

The Effect on the Guidance of Conflicting Federal Court Decisions

    [The text presented in the 1997 document under this heading (62 
FR 12036) is not included here because it became outdated when, 
following the issuance of the 1997 guidance, the conflict among the 
circuit courts was resolved by the Supreme Court's decision in Davis 
v. Monroe County Board of Education, 526 U.S. 629 (1999).]

Notice

    Comments: Several commenters recommended that additional 
guidance be provided regarding the types of employees through which 
a school can receive notice of sexual harassment. Commenters 
disagreed, however, on who should be able to receive notice. For 
instance, some commenters stated that OCR should find that a school 
has received notice only if ``managerial'' employees, ``designated'' 
employees, or employees with the authority to correct the harassment 
receive notice of the harassment. Another commenter suggested, by 
contrast, that any school employee should be considered a 
responsible employee for purposes of notice.
    Discussion: The Guidance states that a school has actual notice 
of sexual harassment if an agent or responsible employee of the 
school receives notice. An exhaustive list of employees would be 
inappropriate, however, because whether an employee is an agent or

[[Page 66113]]

responsible school employee, or whether it would be reasonable for a 
student to believe the employee is an agent or responsible employee, 
even if the employee is not, will vary depending on factors such as 
the authority actually given to the employee and the age of the 
student. Thus, the Guidance gives examples of the types of employees 
that can receive notice of harassment. In this regard, it is 
important for schools to recognize that the Guidance does not 
necessarily require that any employee who receives notice of the 
harassment also be responsible for taking appropriate steps to end 
the harassment or prevent its recurrence. An employee may be 
required only to report the harassment to other school officials who 
have the responsibility to take appropriate action.
    OCR does not agree with those commenters who recommend that a 
school can receive notice only through managerial or designated 
employees. For example, young students may not understand those 
designations and may reasonably believe that an adult, such as a 
teacher or the school nurse, is a person they can and should tell 
about incidents of sexual harassment regardless of that person's 
formal status in the school administration.
    Comments: Several commenters stated that constructive notice, or 
the ``should have known'' standard, puts schools in the untenable 
position of constantly monitoring students and employees to seek out 
potential harassers.
    Discussion: Constructive notice is relevant only if a school's 
liability depends on notice and conduct has occurred that is 
sufficient to trigger the school's obligation to respond. As the 
examples in the Guidance indicate, constructive notice is applicable 
only if a school ignores or fails to recognize overt or obvious 
problems of sexual harassment. Constructive notice does not require 
a school to predict aberrant behavior.

Remedying the Effects of Harassment on Students

    Comments: Several commenters expressed concern regarding the 
Guidance's statement that schools may be required to pay for 
professional counseling and other services necessary to remedy the 
effects of harassment on students. Some comments indicated confusion 
over the circumstances under which the responsibility for those 
costs would exist and concern over the financial responsibility that 
would be created. Others stated that schools should not be liable 
for these costs if they have taken appropriate responsive action to 
eliminate the harassing environment, or if the harassers are non-
employees.
    Discussion: The final Guidance provides additional clarification 
regarding when a school may be required to remedy the effects on 
those who have been subject to harassment. For instance, if a 
teacher engages in quid pro quo harassment against a student, a 
school is liable under Title IX for the conduct and its effects. 
Thus, appropriate corrective action could include providing 
counseling services to the harassed student or paying other costs 
necessary to remedy the effects of the teacher's harassment. On the 
other hand, if a school's liability depends on its failure to take 
appropriate action after it receives notice of the harassment, e.g., 
in cases of peer harassment, the extent of a school's liability for 
remedying the effects of the harassment will depend on the speed and 
efficacy of the school's response once it receives notice. For 
instance, if a school responds immediately and appropriately to 
eliminate harassment of which it has notice and to prevent its 
recurrence, it will not be responsible for remedying the effects of 
harassment, if any, on the individual. By contrast, if a school 
ignores complaints by a student that he or she is persistently being 
sexually harassed by another student in his or her class, the school 
will be required to remedy those effects of the harassment that it 
could have prevented if it had responded appropriately to the 
student's complaints, including, if appropriate, the provision of 
counseling services.

Confidentiality

    Comments: Many commenters recommended additional clarification 
regarding how schools should respond if a harassed student requests 
that his or her name not be disclosed. Some commenters believe that, 
particularly in the elementary and secondary school arena, remedying 
harassment must be the school's first priority, even if that action 
results in a breach of a request for confidentiality. These 
commenters were concerned that, by honoring requests for 
confidentiality, schools would not be able to take effective action 
to remedy harassment. Other commenters believe that if requests for 
confidentiality are not honored, students may be discouraged from 
reporting harassment. These commenters, therefore, argue that 
declining to honor these requests would be less effective in 
preventing harassment than taking whatever steps are possible to 
remedy harassment, while maintaining a victim's confidentiality. 
Finally, some commenters were concerned that withholding the name of 
the victim of harassment would interfere with the due process rights 
of the accused.
    Discussion: The Guidance strikes a balance regarding the issue 
of confidentiality: encouraging students to report harassment, even 
if students wish to maintain confidentiality, but not placing 
schools in an untenable position regarding their obligations to 
remedy and prevent further harassment, or making it impossible for 
an accused to adequately defend himself or herself. The Guidance 
encourages schools to honor a student's request that his or her name 
be withheld, if this can be done consistently with the school's 
obligation to remedy the harassment and take steps to prevent 
further harassment. (The Guidance also notes that schools should 
consider whether the Family Educational Rights and Privacy Act 
(FERPA) would prohibit a school from disclosing information from a 
student's education record without the consent of the student 
alleging harassment.) In addition, OCR has provided clarification by 
describing factors schools should consider in making these 
determinations. These factors include the nature of the harassment, 
the age of the students involved, and the number of incidents and 
students involved. These factors also may be relevant in balancing a 
victim's need for confidentiality against the rights of an accused 
harasser.
    The Guidance also has been clarified to acknowledge that, 
because of the sensitive nature of incidents of harassment, it is 
important to limit or prevent public disclosure of the names of both 
the student who alleges harassment and the name of the alleged 
harasser. The Guidance informs schools that, in all cases, they 
should make every effort to prevent public disclosure of the names 
of all parties involved, except to the extent necessary to carry out 
a thorough investigation.

FERPA

    Comments: Several commenters stated that the Department should 
change its position that FERPA could prevent a school from informing 
a complainant of the sanction or discipline imposed on a student 
found guilty of harassment. Some commenters argued that information 
regarding the outcome of a sexual harassment complaint is not an 
education record covered by FERPA. Other commenters argued 
alternatively that any information regarding the outcome of the 
proceedings is ``related to'' the complainant and, therefore, the 
information can be disclosed to him or her consistent with FERPA. In 
addition, some commenters asked for clarification that FERPA does 
not limit the due process rights of a teacher who is accused of 
harassment to be informed of the name of the student who has alleged 
harassment.
    Discussion: As these comments indicate, the interplay of FERPA 
and Title IX raises complex and difficult issues. Regarding requests 
for clarification on the interplay of FERPA and the rights of an 
accused employee, the Guidance clarifies that the Department does 
not interpret FERPA to override any federally protected due process 
rights of a school employee accused of harassment.
    Regarding whether FERPA prohibits the disclosure of any 
disciplinary action taken against a student found guilty of 
harassment, it is the Department's current position that FERPA 
prohibits a school from releasing information to a complainant if 
that information is contained in the other student's education 
record unless--(1) the information directly relates to the 
complainant (for example, an order requiring the student harasser 
not to have contact with the complainant); or (2) the harassment 
involves a crime of violence or sex offense in a postsecondary 
institution. However, in light of the comments received on this 
issue, the Department has determined that its position regarding the 
application of FERPA to records and information related to sexual 
harassment needs further consideration. Accordingly, the section on 
``Notice of Outcome and FERPA'' has been removed from the Guidance. 
Additional guidance on FERPA will be forthcoming.

Does Title IX Require Schools to Have a Sexual Harassment Policy

    Comments: Several commenters requested additional clarity 
regarding whether Title IX requires schools to have a policy 
explicitly

[[Page 66114]]

prohibiting sexual harassment or to have grievance procedures 
specifically intended to handle sexual harassment complaints, or 
both.
    Discussion: Title IX requires a recipient of Federal funds to 
notify students and parents of elementary and secondary students of 
its policy against discrimination based on sex and have in place a 
prompt and equitable procedure for resolving sex discrimination 
complaints. Sexual harassment can be a form of sexual 
discrimination. The Guidance clearly states that, while a 
recipient's policy and procedure must meet all procedural 
requirements of Title IX and apply to sexual harassment, a school 
does not have to have a policy and procedure specifically addressing 
sexual harassment, as long as its nondiscrimination policy and 
procedures for handling discrimination complaints are effective in 
eliminating all types of sex discrimination. OCR has found that 
policies and procedures specifically designed to address sexual 
harassment, if age appropriate, are a very effective means of making 
students and employees aware of what constitutes sexual harassment, 
that that conduct is prohibited sex discrimination, and that it will 
not be tolerated by the school. That awareness, in turn, can be a 
key element in preventing sexual harassment.

[FR Doc. 00-27910 Filed 11-1-00; 8:45 am]
BILLING CODE 4000-01-P


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