66092 Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Notices

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.

SUMMARY: The Assistant Secretary for

Civil Rights, U.S. Department of

Education (Department), is proposing to

issue a new document that would

replace the 1997 document entitled

‘‘Sexual Harassment Guidance:

Harassment of Students by School

Employees, Other Students, or Third

Parties,’’ issued by the Office for Civil

Rights (OCR) on March 13, 1997 (1997

guidance). We are revising the guidance

in limited respects in light of recent

Supreme Court cases relating to sexual

harassment in schools.

We intend the proposed revised

guidance to serve the same purpose as

the 1997 guidance. It continues to

provide educational institutions with

guidance about the standards under

Title IX of the Education Amendments

of 1972 (Title IX) that we use, and that

institutions should use, to investigate

and resolve allegations of sexual

harassment of students.

We request from all interested parties

written comments on the portions of the

guidance revised to address the

Supreme Court decisions.

DATES: We must receive your comments

on or before December 4, 2000.

ADDRESSES: Address all comments

regarding the revised guidance to

Jeanette J. Lim, U.S. Department of

Education, Office for Civil Rights, 400

Maryland Avenue, SW., room 5036

Switzer Building, Washington, DC

20202–1100. For all comments

submitted by letter, you must include

the term ‘‘Sexual Harassment Guidance

Comments.’’ If you prefer to send your

comments through the Internet, use the

following address: ocr@ed.gov.

You must include the term ‘‘Sexual

Harassment Guidance Comments’’ in

the subject line of your electronic

message.

FOR FURTHER INFORMATION CONTACT:

Jeanette J. Lim. Telephone: (202) 205–

5557 or 1–800–421–3481. If you use a

telecommunications device for the deaf

(TDD), you may call the TDD number at

(202) 260–0471.

For additional copies of this

document, individuals may call OCR’s

Customer Service Team at (202) 205–

5557 or toll-free at 1–800–421–3481.

Individuals with disabilities may

obtain this document in an alternative

format (e.g., Braille, large print,

audiotape, or computer diskette) on

request to OCR’s Customer Service

Team listed in the preceding paragraph.

SUPPLEMENTARY INFORMATION:

Invitation To Comment

We invite you to submit comments

regarding the proposed revised guidance

in Appendix A that relates to the

revisions made to address recent

Supreme Court decisions.

During and after the comment period,

you may inspect all public comments

about this proposed revised guidance in

room 5036, 330 C Street, SW.,

Washington, DC, between the hours of

9:30 a.m. and 5:00 p.m., Eastern time,

Monday through Friday of each week

except Federal holidays.

Assistance to Individuals With

Disabilities in Reviewing the Public

Record

On request, we will supply an

appropriate aid, such as a reader or

print magnifier, to an individual with a

disability who needs assistance to

review the comments or other

documents in the public record for this

proposed guidance. If you want to

schedule an appointment for this type of

aid, you may call (202) 205–8113 or

(202) 260–9895. If you use a TDD, you

may call the Federal Information Relay

Service at 1–800–877–8339.

Purpose and Scope of the Revised

Guidance

In March 1997, we published ‘‘Sexual

Harassment Guidance: Harassment of

Students by School Employees, Other

Students, or Third Parties’’ (62 FR

12034). We issued the guidance

pursuant to our authority under Title IX,

and our Title IX implementing

regulations, to eliminate discrimination

based on sex in education programs and

activities receiving Federal financial

assistance. It was grounded in

longstanding legal authority establishing

that sexual harassment of students can

be a form of sex discrimination and is

covered by Title IX. It was the product

of extensive consultation with

interested parties, including students,

teachers, school administrators, and

researchers regarding the realities of

sexual harassment and best practices for

responding to and preventing sexual

harassment. We also made the

document available for public comment.

Since the issuance of the guidance,

the Supreme Court (Court) has issued

several important decisions in sexual

harassment cases, including two

decisions specifically addressing sexual

harassment of students: Gebser v. Lago

Vista Independent School District

(Gebser), 524 U.S. 274 (1998), and Davis

v. Monroe County Board of Education

(Davis), 526 U.S. 629 (1999). In an

August 1998 letter to school

superintendents and a January 1999

letter to college and university

presidents, the Secretary of Education

informed school officials that the Gebser

decision did not change schools’

obligations to take reasonable steps to

prevent and eliminate sexual

harassment as a condition of their

receipt of Federal funding. In most

important respects, the substance of the

1997 guidance was reaffirmed in the

Court’s opinions in Gebser and Davis,

but we have determined that in certain

areas the 1997 guidance could be

strengthened by further clarification and

explanation of the regulatory basis for

the guidance.

We are, therefore, issuing this

proposed revised guidance. The scope

of the revisions is limited. They are

intended to reaffirm our standards

regarding sexual harassment, to clarify

the regulatory basis for the 1997

guidance, and to illustrate how and why

the administrative enforcement of Title

IX’s nondiscrimination requirements

differs from private lawsuits for money

damages. In making clarifications to the

guidance flowing from the Supreme

Court decisions, we also have taken the

opportunity to make a few additional

clarifications that we believe will be

helpful to schools, including clarifying

some examples from the 1997 guidance

and adding some additional examples to

illustrate the Title IX standards

discussed in the guidance. It is

important to note that these are just

examples. Neither they nor the

proposed revised guidance create new

Title IX standards.

Title IX Compliance Standard

In Gebser and Davis, the Supreme

Court addressed for the first time the

appropriate standards for determining

when a school district is liable under

Title IX for money damages in a private

lawsuit brought by a student who has

been sexually harassed.

• The Court held in Gebser that a

school can be liable for monetary

damages if a teacher sexually harasses a

student, an official who has authority to

address the harassment has actual

knowledge of the harassment, and that

official is deliberately indifferent in

responding to the harassment.

• In Davis, the Court announced that

a school also may be liable for monetary

damages if one student sexually

harasses another student in the

recipient’s program and the conditions

of Gebser are met, i.e., an official who

has authority to address the harassment

Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Notices 66093

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.

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.

Accordingly, our proposed revised

guidance does not change the standards

that we use, and that a school district

should use, to determine the school

district’s responsibility for sexual

harassment of students. Rather, the

proposed revised guidance clarifies that

these standards apply to our ability to

find a violation and seek corrective

action in administrative enforcement of

Title IX.

Because the focus of the guidance is

on a school’s administrative

responsibilities under the

nondiscrimination requirements of the

Title IX statute and regulations, rather

than its liability to private litigants, the

proposed revised guidance no longer

describes a school’s compliance

obligations in terms of ‘‘liability’’ or

‘‘Title VII agency law.’’ Instead, the

proposed revised guidance explains the

regulatory basis for a school’s Title IX

responsibilities to take effective action

to prevent, eliminate, and remedy

sexual harassment occurring in its

program.

The Court Confirmed Important

Principles From the 1997 Guidance

In Davis, Gebser, and a third opinion,

Oncale v. Sundowner Offshore Services,

Inc. (Oncale), 523 U.S. 75 (1998) (a

sexual harassment case decided under

Title VII of the Civil Rights Act of 1964

(Title VII)), the Supreme Court

confirmed several fundamental

principles articulated by the Department

in the 1997 guidance. In these areas, no

changes in the guidance are necessary.

The Court—

• Endorsed the Department’s power

to set regulatory requirements under

Title IX. The Court held that, for

example, a school district’s failure to

promulgate a grievance procedure, as

required by the Title IX regulations,

does not constitute unlawful

discrimination, but, nevertheless, such a

regulatory requirement can be

administratively enforced by the

Department (Gebser, 524 U.S. at 292).

• Affirmed the Department’s

interpretation that student-on-student

(peer) harassment is covered by Title IX

and resolved a circuit court split on this

issue (Davis, 526 U.S. at 633).

• Described the type of conduct that

rises to the level of peer sexual

harassment in a manner consistent with

our guidance. The Court explained that

conduct had to adversely affect the

student’s educational benefits or

opportunities, such that the victim is

effectively denied equal access to these

benefits and opportunities (Davis, 526

U.S. at 648–651).

• Held that not all conduct of a sexual

nature rises to the level of sexual

harassment, Davis, 526 U.S. at 648–651,

thus affirming our guidance to schools

that teachers and school administrators

need to use common sense and good

judgment in responding appropriately to

allegations of sexual harassment. See

also Oncale, 523 U.S. at 79–82.

• Affirmed our position that the

context of the behavior at issue is

crucial in determining whether sexual

harassment has occurred. See, e.g.,

Davis, 526 U.S. at 650 (citing our 1997

sexual harassment guidance); Oncale,

523 U.S. at 81.

• Held that sexual harassment may

constitute discrimination under Title

VII even if the harasser and victim of

harassment are of the same sex (Oncale,

523 U.S. at 79–82). This is consistent

with the Department’s position in the

1997 guidance that same-sex sexual

harassment can constitute

discrimination under Title IX.

• Made clear that, although the

applicability of Title VII agency

principles in private Title IX lawsuits

for money damages is limited, it is still

appropriate to look to Title VII

principles in determining what

constitutes sexual harassment (Davis,

526 U.S. at 651, citing Meritor Savings

66094 Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Notices

2This 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.’’

3As 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.

5Title 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).

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

The Department’s Title IX

implementing regulations prohibit sexbased 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.)

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

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

66096 Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Notices

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

Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Notices 66097

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.

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 victimstudents 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.

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

66098 Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Notices

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 SameSex 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

Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Notices 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 nonemployee third party (e.g., a visiting speaker

or visiting athletes). Title IX protects any

‘‘person’’ from sex discrimination.

Accordingly, both male and female students

are protected from sexual harassment 7

engaged in by a school’s employees, other

students, or third parties. Moreover, Title IX

prohibits sexual harassment regardless of the

sex of the harasser, i.e., even if the harasser

and the person being harassed are members

of the same sex.8 An example would be a

campaign of sexually explicit graffiti directed

at a particular girl by other girls.9

Although Title IX does not prohibit

discrimination on the basis of sexual

orientation,10 11 sexual harassment directed at

gay or lesbian students may constitute sexual

harassment prohibited by Title IX. For

example, if students heckle another student

with comments based on the student’s sexual

orientation (e.g., ‘‘gay students are not

welcome at this table in the cafeteria’’), but

their actions do not involve sexual conduct,

their actions would not be sexual harassment

covered by Title IX. On the other hand,

harassing conduct of a sexual nature directed

toward gay or lesbian students (e.g., if a male

student or a group of male students target a

gay student for physical sexual advances)

may create a sexually hostile environment

and, therefore, may be prohibited by Title IX.

Although a comprehensive discussion of

gender-based harassment is beyond the scope

of this guidance, it is also important to

recognize that gender-based harassment,

which may include acts of verbal, nonverbal,

or physical aggression, intimidation, or

hostility based on sex or sex-stereotyping, but

not involving conduct of a sexual nature,

may be a form of sex discrimination that

violates Title IX and the Title IX regulations

if it rises to a level that denies or interferes

with benefits, services, or opportunities and

is directed at individuals because of their

sex.12 For example, the repeated sabotaging

of female graduate students’ laboratory

experiments by male students in the class

could be the basis of a violation of Title IX.

In assessing all related circumstances to

determine whether a hostile environment

exists, incidents of gender-based harassment

combined with incidents of sexual

harassment could create a hostile

environment, even if neither the genderbased harassment alone nor the sexual

66100 Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Notices

harassment alone would be sufficient to do

so.13

Title IX Regulatory Compliance

Responsibilities. As a condition of receiving

funds from the Department, a school is

required to comply with Title IX and the

Department’s Title IX regulations, which

spell out prohibitions against sex

discrimination. The law is clear that sexual

harassment may constitute sex

discrimination under Title IX.14

Recipients specifically agree, as a

condition for receiving Federal financial

assistance from the Department, to comply

with Title IX and the Department’s Title IX

regulations. The regulatory provision

requiring this agreement, known as an

assurance of compliance, specifies that

recipients must agree that education

programs or activities operated by the

recipient will be operated in compliance

with the Title IX regulations, including

taking any action necessary to remedy its

discrimination or the effects of its

discrimination in its programs.15

The regulations set out the basic Title IX

responsibilities a recipient undertakes when

it accepts Federal financial assistance,

including the following specific

obligations.16 A recipient agrees that, in

providing any aid, benefit, or service to

students, it will not, on the basis of sex—

• Treat one student differently from

another in determining whether the student

satisfies any requirement or condition for the

provision of any aid, benefit, or service; 17

• Provide different aid, benefits, or

services or provide aid, benefits, or services

in a different manner; 18

• Deny any student any such aid, benefit,

or service; 19

• Subject students to separate or different

rules of behavior, sanctions, or other

treatment; 20

• Aid or perpetuate discrimination against

a student by providing significant assistance

to any agency, organization, or person that

discriminates on the basis of sex in providing

any benefit, service, or opportunity to

students; 21 and

• Otherwise limit any student in the

enjoyment of any right, privilege, advantage,

or opportunity.22

For the purposes of brevity and clarity, this

proposed revised guidance generally

summarizes this comprehensive list by

referring to a school’s obligation to ensure

that a student is not denied or limited in the

ability to participate in or benefit from the

school’s program on the basis of sex.

The regulations also specify that, if a

recipient discriminates on the basis of sex,

the school must take remedial action to

overcome the effects of the discrimination.23

In addition, the regulations establish

procedural requirements that are important

for the prevention of, or correction of, sex

discrimination, including sexual harassment.

These requirements include issuance of a

policy against sex discrimination 24 and

adoption and publication of grievance

procedures providing for prompt and

equitable resolution of complaints of sex

discrimination.25 The regulations also require

that recipients designate at least one

employee to coordinate compliance with the

regulations, including coordination of

investigations of complaints alleging

noncompliance.26

As explained in this guidance, based on

these regulatory requirements, schools need

to recognize and respond to sexual

harassment of students by teachers and other

employees, by other students, and by third

parties. This guidance explains how the

requirements of the Title IX regulations apply

to situations involving sexual harassment of

a student and outlines measures that schools

should take to ensure compliance with these

requirements.

Harassment by Teachers and Other

Employees. Sexual harassment of a student

by a teacher or other school employee may

be discrimination in violation of Title IX.27

This guidance outlines the circumstances

under which an employee’s actions can cause

discrimination and trigger the school’s

responsibility for taking effective corrective

action. In sum, a recipient’s responsibility for

employee harassment is distinguishable

based on whether or not the harassment

occurred in the context of the employee’s

provision of aid, benefits, or services to

students. If the answer is yes, as described in

the next paragraph, this triggers the

recipient’s responsibilities. What this means

for purposes of OCR’s administrative

requirements is that the recipient must take

reasonable steps to eliminate the hostile

environment caused by the harassment, to

prevent its recurrence, and to remedy its

effects. (Of course, under OCR’s

administrative enforcement, a recipient will

always have actual notice and an opportunity

to take appropriate corrective action before

facing the loss of Federal funds.) By contrast,

if the harassment occurs in the school’s

program, but not in the context of the

employee’s provision of aid, benefits, or

services to students, the recipient’s

responsibility is not triggered until it has

notice. Thus, if upon notice, it takes prompt

and effective steps to end the harassment and

prevent its recurrence, it has satisfied its

obligations under the Title IX regulations,

and the recipient is not responsible for the

effects of the harassment on the victim that

occurred prior to notice.

When is an employee acting in the context

of providing aid, benefits, or services to

students? A recipient is responsible for the

nondiscriminatory provision of aid, benefits,

or services to students, and a recipient

generally provides these to students through

the responsibilities it gives its employees. If

an employee, in the context of providing aid,

benefits, or services to students, takes

advantage of his or her position of

responsibility over students and engages in

actions that deny or limit a student’s ability

to participate in or benefit from the school’s

program on the basis of sex,28 the recipient

is responsible for the discrimination.29

For example, in some instances, an

employee will condition the provision of aid,

benefits, or services to a student on

submission to sexual harassment. In other

instances, an employee’s conduct is

sufficiently serious that it creates a hostile

environment in a situation in which an

employee takes advantage of the

responsibilities given to him or her by the

school to provide aid, benefits, or services to

students to engage in harassment, or, because

of the way the school is run, the employee

reasonably appears to be taking advantage of

this position of responsibility when engaging

in the harassment. (For more information see

‘‘Types of Harassment: Quid Pro Quo

Harassment and Hostile Environment

Harassment,’’ as well as the paragraphs that

follow in this section.) For brevity and

clarity, this proposed revised guidance

generally refers to the types of employee

harassment described in this paragraph as

causing a denial or limitation of a benefit that

occurred in the context of the employee’s

provision of aid, benefits, or services to

students. Factors to be considered in

determining whether an employee’s

harassing conduct occurred in the context of

providing aid, benefits, or services to

students are outlined in the following

paragraphs of this section. In the situations

described in this paragraph, because the

school is responsible for the denial or

limitation of the student’s ability to

participate in or benefit from the school’s

program on the basis of sex, the school is

responsible for taking timely and effective

action to end the harassment, prevent its

recurrence, and remedy its effect on the

victim.

On the other hand, if a teacher or other

school employee engages in harassment of a

student outside of this context, i.e., if the

harassment occurs in the school’s program,

but not in the context of the employee’s

provision of aid, benefits, or services to

students, and if the harassment is sufficiently

serious to create a hostile environment, the

school is responsible, upon notice of the

harassment, for taking prompt and effective

action to stop the harassment and prevent its

recurrence.30 (This is the same standard

applicable to peer and third party

harassment, which is discussed in the

following section.) As explained in ‘‘Notice

of Employee, Peer, or Third Party

Harassment,’’ for the purposes of this

guidance, a school has notice of harassment

if a responsible school employee actually

knew, or in the exercise of reasonable care

should have known, about the harassment. If,

upon notice, the school takes immediate and

effective action reasonably calculated to end

the harassment, eliminate the hostile

environment, and prevent its recurrence, it

has avoided violating the Title IX regulations.

If, upon notice,31 the school fails to take

prompt and effective action, its own failure

to act has allowed the student to continue to

be subjected to a hostile environment that

denies or limits the student’s ability to

participate in or benefit from the school’s

program. If this occurs, the school is then

responsible for taking corrective action to

remedy the effects of the harassment on the

victim that could have been prevented if the

school had responded promptly and

effectively, as well as taking corrective action

to stop the harassment and prevent its

recurrence. (See the sections on ‘‘OCR Case

Resolution’’ and ‘‘Recipient’s Response.’’)

In assessing a school’s responsibility under

the Title IX regulations for an employee’s

sexual harassment of a student, OCR

considers whether or not the sexual

Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Notices 66101

harassment occurred in the context of the

employee’s provision of aid, benefits, or

services to students. In determining this,

OCR will consider on a case-by-case basis the

nature and circumstances of the harassing

conduct as it relates to the employee’s

provision of aid, benefits, or services to

students in the school’s program. If an

employee engages in quid pro quo

harassment, i.e., the employee conditions an

educational benefit or decision on a student’s

submission to sexual conduct, the student

clearly is being denied or limited in his or

her ability to participate in or benefit from

the school’s program on the basis of sex. In

addition, the harassment is clearly occurring

in the context of the employee’s provision of

aid, benefits, or services to students. An

example would be a teacher who conditions

a student’s grade on submission to sexual

advances and then gives the student a poor

grade for rejecting the harassment. In

situations that do not involve quid pro quo

harassment, but in which an employee’s

sexually harassing conduct is sufficiently

serious to create a hostile environment, OCR

will consider the following interrelated

factors in determining whether the

harassment occurred in the context of the

employee’s provision of aid, benefits, or

services to students:

• The degree of responsibility given to the

employee, including informal and formal

authority to provide aid, benefits, or services

to students, to direct and control student

conduct, or to discipline students generally;

• The degree of influence the employee

has over the particular student involved,

including in the context in which the

harassment took place;

• Where and when the harassment

occurred; and

• The age and educational level of the

student involved, and, as applicable,

whether, due to the student’s age and

educational level and the way the school is

run, it would be reasonable for a student to

believe that the employee was in a position

of responsibility over the student, even if the

employee was not.

These factors are applicable to all recipient

educational institutions, including

elementary and secondary schools, colleges,

and universities.

In cases involving allegations of

harassment of elementary and secondary

school-age students by a teacher or school

administrator during any school activity,32

consideration of these factors will generally

lead to a conclusion that the harassment

occurred in the context of the employee’s

provision of aid, benefits, or services. This is

because elementary and secondary schools

are typically run in a way that gives teachers,

school officials, and certain other school

employees a substantial degree of

supervision, control, and disciplinary

authority over the conduct of students.33 For

example, a teacher may sexually harass an

eighth grade student in a school hallway.

Even if the student is not in any of the

teacher’s classes and even if the teacher is

not a designated hallway monitor, given the

age and educational level of the student and

the status and degree of influence of teachers

in elementary and secondary schools, it

would be reasonable for the student to

believe that the teacher had at least informal

disciplinary authority over students in the

hallways. Similarly, a high school coach may

require an athlete to come to his office for a

post-game discussion of the athlete’s

performance and then use this meeting to

make sexual advances. In these examples, all

the factors (nature and circumstances of the

harassment, age and education level of the

student, employee’s position of

responsibility, employee’s degree of

influence over the student, and where and

when the harassment occurred) would

indicate that the harassment occurred in the

context of the employee’s provision of aid,

benefits, or services to students. With respect

to other types of employees, e.g., custodial

employees, these same factors would be

considered to determine whether or not it

would be reasonable for the student to

believe that the employee had a position of

responsibility over him or her and, thus, was

in a position to take advantage of that

responsibility to limit or deny aid, benefits,

or services to the student.

On the other hand, consider the case in

which a university custodian sexually

harasses a graduate student in the hallway of

a university building. Based on the

considerations set out in the factors listed

previously, even though the harassment

occurred in the hallway of a university

building, due to the age and education level

of the student, taken together with the

employee’s lack of authority or influence

over that student, OCR would conclude that

the harassment did not occur in the context

of the employee’s provision of aid, benefits,

or services to students. Thus, as previously

described, the university’s obligation to

respond promptly and effectively would be

triggered when it knew or should have

known of the harassment.

Harassment by Other Students or Third

Parties. If a student sexually harasses another

student and the harassing conduct is

sufficiently serious to deny or limit the

student’s ability to participate in or benefit

from the program, and if the school knows

or reasonably should know 34 about the

harassment, the school is responsible for

taking immediate effective action to

eliminate the hostile environment and

prevent its recurrence.35 As long as the

school, upon notice of the harassment,

responds by taking prompt and effective

action to end the harassment and prevent its

recurrence, the school has carried out its

responsibility under the Title IX regulations.

On the other hand, if, upon notice, the school

fails to take prompt, effective action, the

school’s own action has permitted the

student to be subjected to a hostile

environment that denies or limits the

student’s ability to participate in or benefit

from the school’s program on the basis of

sex.36 In this case, the school is responsible

for taking effective corrective actions to stop

the harassment, prevent its recurrence, and

remedy its effects on the victim.

Similarly, sexually harassing conduct by

third parties, who are not themselves

employees or students at the school (e.g., a

visiting speaker or members of a visiting

athletic team), may also be of a sufficiently

serious nature as to interfere with a student’s

ability to participate in or benefit from the

education program. As previously outlined in

connection with peer harassment, if the

school knows or should know 37 of the

harassment, the school is responsible for

taking prompt and effective action to

eliminate the hostile environment and

prevent its recurrence. The type of

appropriate steps that the school should take

will differ depending on the level of control

that the school has over the third party

harasser.38 For example, if athletes from a

visiting team harass the home school’s

students, the home school may not be able

to discipline the athletes. However, it could

encourage the other school to take

appropriate action to prevent further

incidents; if necessary, the home school may

choose not to invite the other school back.

This issue is discussed more fully in

‘‘Recipient’s Response.’’ If, upon notice, the

school fails to take prompt and effective

corrective action, its own failure has

permitted the student to be subjected to a

hostile environment that limits the student’s

ability to participate in or benefit from the

education program.39 In this case, the school

is responsible for taking corrective actions to

stop the harassment, prevent its recurrence,

and remedy its effects on the victim.

Notice of Employee, Peer, or Third Party

Harassment. As described in the section on

‘‘Harassment by Teachers and Other

Employees,’’ schools may be responsible for

certain types of employee harassment that

occurred before other school officials had

notice of harassment, as described in this

section. On the other hand, as described in

that section and the section on ‘‘Harassment

by Other Students or Third Parties,’’ in

situations involving certain other types of

employee harassment or harassment by peers

or third parties, a school will be in violation

of the Title IX regulations if the school ‘‘has

notice’’ of a sexually hostile environment and

fails to take immediate and effective

corrective action.40 A school has notice if a

responsible employee ‘‘knew, or in the

exercise of reasonable care should have

known,’’ about the harassment.41 A

responsible employee would include any

employee who has the authority to take

action to redress the harassment, who has the

duty to report to appropriate school officials

sexual harassment or any other misconduct

by students or employees, or an individual

who a student could reasonably believe has

this authority or responsibility.42

Accordingly, schools need to ensure that

employees are trained so that employees with

authority to address harassment know how to

respond appropriately, and other responsible

employees know that they are obligated to

report harassment to appropriate school

officials. Training for employees should

include practical information about how to

identify harassment and, as applicable, the

person to whom it should be reported.

A school can receive notice of harassment

in many different ways. A student may have

filed a grievance with the Title IX

coordinator 43 or complained to a teacher or

other responsible employee about fellow

students harassing him or her. A student,

parent, or other individual may have

66102 Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Notices

contacted other appropriate personnel, such

as a principal, campus security, bus driver,

teacher, affirmative action officer, or staff in

the office of student affairs. A teacher or

other responsible employee of the school

may have witnessed the harassment. The

school may receive notice about harassment

in an indirect manner, from sources such as

a member of the school staff, a member of the

educational or local community, or the

media. The school also may have learned

about the harassment from flyers about the

incident distributed at the school or posted

around the school. For the purposes of

compliance with the Title IX regulations, a

school has a duty to respond to harassment

that it reasonably should have known about,

i.e., if it would have learned of the

harassment if it had exercised reasonable

care or made a ‘‘reasonably diligent

inquiry.’’ 44 For example, in some situations

if the school knows of incidents of

harassment, the exercise of reasonable care

should trigger an investigation that would

lead to a discovery of additional incidents.45

In other cases, the pervasiveness of the

harassment may be enough to conclude that

the school should have known of the hostile

environment—if the harassment is

widespread, openly practiced, or well-known

to students and staff (such as sexual

harassment occurring in the hallways, graffiti

in public areas, or harassment occurring

during recess under a teacher’s

supervision.) 46

If a school otherwise knows or reasonably

should know of a hostile environment and

fails to take immediate and effective

corrective action, a school has violated Title

IX even if the student has failed to use the

school’s existing grievance procedures or

otherwise inform the school of the

harassment.

Grievance Procedures. Schools are required

by the Title IX regulations to adopt and

publish grievance procedures providing for

prompt and equitable resolution of sex

discrimination complaints, including

complaints of sexual harassment, and to

disseminate a policy against sex

discrimination.47 (These issues are discussed

in the section on ‘‘Prompt and Equitable

Grievance Procedures.’’) These procedures

provide a school with a mechanism for

discovering sexual harassment as early as

possible and for effectively correcting

problems, as required by the Title IX

regulations. By having a strong policy against

sex discrimination and accessible, effective,

and fairly applied grievance procedures, a

school is telling its students that it does not

tolerate sexual harassment and that students

can report it without fear of adverse

consequences.

Without a policy and procedure, a student

does not know either of the school’s

obligation to address this form of

discrimination or how to report harassment

so that it can be remedied. If the alleged

harassment is sufficiently serious to create a

hostile environment and it is the school’s

failure to comply with the procedural

requirements of the Title IX regulations that

hampers early notification and intervention

and permits sexual harassment to deny or

limit a student’s ability to participate in or

benefit from the school’s program on the

basis of sex,48 the school will be responsible

under the Title IX regulations, once informed

of the harassment, to take corrective action,

including stopping the harassment,

preventing its recurrence, and remedying the

effects of the harassment on the victim.

OCR Case Resolution. If OCR is asked to

investigate or otherwise resolve incidents of

sexual harassment of students, including

incidents caused by employees, other

students, or third parties, OCR will consider

whether—(1) The school has a policy

prohibiting sex discrimination under Title

IX 49 and effective grievance procedures; 50

(2) the school appropriately investigated or

otherwise responded to allegations of sexual

harassment; 51 and (3) the school has taken

immediate and effective corrective action

responsive to the harassment, including

effective actions to end the harassment,

prevent its recurrence, and, as appropriate,

remedy its effects.52 (Issues related to

appropriate investigative and corrective

actions are discussed in detail in the section

on ‘‘Recipient’s Response.’’)

If the school has taken each of these steps,

OCR will consider the case against the school

resolved and will take no further action,

other than monitoring compliance with an

agreement, if any, between the school and

OCR. This is true in cases in which the

school was in violation of the Title IX

regulations (e.g., a teacher sexually harassed

a student in the context of providing aid,

benefits, or services to students), as well as

those in which there has been no violation

of the regulations (e.g., in a peer sexual

harassment situation in which the school

took immediate, reasonable steps to end the

harassment and prevent its recurrence). This

is because, even if OCR identifies a violation,

Title IX requires OCR to attempt to secure

voluntary compliance.53 Thus, because a

school will have the opportunity to take

reasonable corrective action before OCR

issues a formal finding of violation, a school

does not risk losing its Federal funding solely

because discrimination occurred.

Factors Used To Evaluate Sexual Harassment

Types of Harassment: Quid Pro Quo

Harassment and Hostile Environment

Harassment. Sexual harassment may

constitute sex discrimination prohibited by

Title IX and the Title IX regulations. As

outlined in the following paragraphs, sexual

harassment may be categorized as either quid

pro quo harassment or hostile environment

harassment.54 Sexually harassing conduct

can include unwelcome sexual advances,

requests for sexual favors, and other physical,

verbal, or nonverbal conduct of a sexual

nature.55

It is important to recognize that the line

between quid pro quo and hostile

environment sexual harassment is often

blurred, and the prohibited conduct may

involve elements of both. What is important

is determining whether sexual harassment

has denied or limited a student’s ability to

participate in or benefit from the school’s

programs or activities based on sex,

regardless of whether it is labeled quid pro

quo or hostile environment harassment.

Quid Pro Quo Harassment. Quid pro quo

harassment occurs whenever a school

employee 56 explicitly or implicitly

conditions a student’s participation in an

education program or bases an educational

decision on the student’s submission to

unwelcome sexual advances, requests for

sexual favors, or other physical, verbal, or

nonverbal conduct of a sexual nature. When

quid pro quo harassment occurs, whether the

student resists and suffers the threatened

harm or submits and thus avoids the

threatened harm, the student has been treated

differently or the student’s ability to

participate in or benefit from the school’s

program has been denied or limited based on

sex.57

Hostile Environment Harassment. A

sexually hostile environment is created if

sexually harassing conduct by an employee,

by another student, or by a third party is

sufficiently serious that it denies or limits a

student’s ability to participate in or benefit

from the school’s program based on sex.58

As outlined in the following paragraphs,

OCR considers a variety of related factors to

evaluate the severity and pervasiveness of the

conduct. OCR considers the conduct from

both a subjective 59 and objective 60

perspective. In evaluating the severity and

pervasiveness of the conduct, OCR considers

all relevant circumstances, i.e., ‘‘the

constellation of surrounding circumstances,

expectations, and relationships.’’ 61 Schools

should also use these factors to evaluate

conduct in order to draw commonsense

distinctions between conduct that constitutes

sexual harassment and conduct that does not

rise to that level. Relevant factors include the

following:

• The degree to which the conduct affected

one or more students’ education. In

considering the effect of the harassment on

the student in terms of whether it has denied

or limited the student’s ability to participate

in or benefit from the school’s program, OCR

assesses both tangible and intangible effects.

Many hostile environment cases involve

tangible or obvious injuries.62 For example,

a student’s grades may go down or the

student may be forced to withdraw from

school because of the harassing behavior.63 A

student may also suffer physical injuries or

mental or emotional distress.64 In other cases

a hostile environment may exist even if there

is no tangible injury to the student.65 For

example, a student may have been able to

keep up his or her grades and continue to

attend school even though it was very

difficult for him or her to do so because of

the teacher’s repeated sexual advances.

Similarly, a student may be able to remain on

a sports team, despite experiencing great

difficulty performing at practices and games

from the humiliation and anger caused by

repeated sexual advances and intimidation

by several team members that create a hostile

environment. Harassing conduct in these

examples would alter a reasonable student’s

educational environment and adversely affect

the student’s ability to participate in or

benefit from the school’s program on the

basis of sex.

A hostile environment can occur even if

the harassment is not targeted specifically at

the individual complainant.66 For example, if

a student, group of students, or a teacher

regularly directs sexual comments toward a

Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Notices 66103

particular student, a hostile environment

may be created not only for the targeted

student, but also for others who witness the

conduct.

• The type, frequency, and duration of the

conduct. In most cases, a hostile environment

will exist if there is a pattern or practice of

harassment, or if the harassment is sustained

and nontrivial.67 For instance, if a young

woman is taunted by one or more young men

about her breasts or genital area or both, OCR

may find that a hostile environment has been

created, particularly if the conduct has gone

on for some time, or takes place throughout

the school, or if the taunts are made by a

number of students. The more severe the

conduct, the less the need to show a

repetitive series of incidents; this is

particularly true if the harassment is

physical. For instance, if the conduct is more

severe, e.g., attempts to grab a female

student’s breasts or attempts to grab any

student’s genital area or buttocks, it need not

be as persistent to create a hostile

environment. Indeed, a single or isolated

incident of sexual harassment may, if

sufficiently severe, create a hostile

environment.68 On the other hand, conduct

that is not severe will not create a hostile

environment; e.g., a comment by one student

to another student that she has a nice figure.

Indeed, depending on the circumstances, this

may not even be conduct of a sexual nature.69

Similarly, because students date one another,

a request for a date or a gift of flowers, even

if unwelcome, would not create a hostile

environment. However, there may be

circumstances in which repeated,

unwelcome requests for dates or similar

conduct could create a hostile environment.

For example, a person, who has been refused

previously, may request dates in an

intimidating or threatening manner.

• The identity of and relationship between

the alleged harasser and the subject or

subjects of the harassment. A factor to be

considered, especially in cases involving

allegations of sexual harassment of a student

by a school employee, is the identity of and

relationship between the alleged harasser and

the subject or subjects of the harassment. For

example, due to the power a professor or

teacher has over a student, sexually based

conduct by that person toward a student is

more likely to create a hostile environment

than similar conduct by another student.70

• The number of individuals involved.

Sexual harassment may be committed by an

individual or a group. In some cases, verbal

comments or other conduct from one person

might not be sufficient to create a hostile

environment, but could be if done by a

group. Similarly, while harassment can be

directed toward an individual or a group,71

the effect of the conduct toward a group may

vary, depending on the type of conduct and

the context. For certain types of conduct,

there may be ‘‘safety in numbers.’’ For

example, following an individual student

and making sexual taunts to him or her may

be very intimidating to that student, but, in

certain circumstances, less so to a group of

students. On the other hand, persistent

unwelcome sexual conduct still may create a

hostile environment if directed toward a

group.

• The age and sex of the alleged harasser

and the subject or subjects of the harassment.

For example, in the case of younger students,

sexually harassing conduct is more likely to

be intimidating if coming from an older

student.72

• The size of the school, location of the

incidents, and context in which they

occurred. Depending on the circumstances of

a particular case, fewer incidents may have

a greater effect at a small college than at a

large university campus. Harassing conduct

occurring on a school bus may be more

intimidating than similar conduct on a

school playground because the restricted area

makes it impossible for students to avoid

their harassers.73 Harassing conduct in a

personal or secluded area, such as a

dormitory room or residence hall, can have

a greater effect (e.g., be seen as more

threatening) than would similar conduct in a

more public area. On the other hand,

harassing conduct in a public place may be

more humiliating. Each incident must be

judged individually.

• Other incidents at the school. A series of

incidents at the school, not involving the

same students, could—taken together—create

a hostile environment, even if each by itself

would not be sufficient.74

• Incidents of gender-based, but nonsexual

harassment. Acts of verbal, nonverbal or

physical aggression, intimidation or hostility

based on sex, but not involving sexual

activity or language, can be combined with

incidents of sexual harassment to determine

if the incidents of sexual harassment are

sufficiently serious to create a sexually

hostile environment.75

It is the totality of the circumstances in

which the behavior occurs that is critical in

determining whether a hostile environment

exists. Consequently, in using the factors

discussed previously to evaluate incidents of

alleged harassment, it is always important to

use common sense and reasonable judgement

in determining whether a sexually hostile

environment has been created.

Welcomeness. In order for conduct of a

sexual nature to be sexual harassment, it

must be unwelcome. Conduct is unwelcome

if the student did not request or invite it and

‘‘regarded the conduct as undesirable or

offensive.’’ 76 Acquiescence in the conduct or

the failure to complain does not always mean

that the conduct was welcome.77 For

example, a student may decide not to resist

sexual advances of another student or may

not file a complaint out of fear. In addition,

a student may not object to a pattern of

demeaning comments directed at him or her

by a group of students out of a concern that

objections might cause the harassers to make

more comments. The fact that a student may

have accepted the conduct does not mean

that he or she welcomed it.78 Also, the fact

that a student willingly participated in

conduct on one occasion does not prevent

him or her from indicating that the same

conduct has become unwelcome on a

subsequent occasion. On the other hand, if a

student actively participates in sexual banter

and discussions and gives no indication that

he or she objects, then the evidence generally

will not support a conclusion that the

conduct was unwelcome.79

If younger children are involved, it may be

necessary to determine the degree to which

they are able to recognize that certain sexual

conduct is conduct to which they can or

should reasonably object and the degree to

which they can articulate an objection.

Accordingly, OCR will consider the age of

the student, the nature of the conduct

involved, and other relevant factors in

determining whether a student had the

capacity to welcome sexual conduct.

Schools should be particularly concerned

about the issue of welcomeness if the

harasser is in a position of authority. For

instance, because students may be

encouraged to believe that a teacher has

absolute authority over the operation of his

or her classroom, a student may not object to

a teacher’s sexually harassing comments

during class; however, this does not

necessarily mean that the conduct was

welcome. Instead, the student may believe

that any objections would be ineffective in

stopping the harassment or may fear that by

making objections he or she will be singled

out for harassing comments or other

retaliation.

In addition, OCR must consider particular

issues of welcomeness if the alleged

harassment relates to alleged ‘‘consensual’’

sexual relationships between a school’s adult

employees and its students. If elementary

students are involved, welcomeness will not

be an issue: OCR will never view sexual

conduct between an adult school employee

and an elementary school student as

consensual. In cases involving secondary

students, there will be a strong presumption

that sexual conduct between an adult school

employee and a student is not consensual. In

cases involving older secondary students,

subject to the presumption,80 OCR will

consider a number of factors in determining

whether a school employee’s sexual advances

or other sexual conduct could be considered

welcome.81 In addition, OCR will consider

these factors in all cases involving

postsecondary students in making those

determinations.82 The factors include the

following:

• The nature of the conduct and the

relationship of the school employee to the

student, including the degree of influence

(which could, at least in part, be affected by

the student’s age), authority, or control the

employee has over the student.

• Whether the student was legally or

practically unable to consent to the sexual

conduct in question. For example, a student’s

age could affect his or her ability to do so.

Similarly, certain types of disabilities could

affect a student’s ability to do so.

If there is a dispute about whether

harassment occurred or whether it was

welcome—in a case in which it is

appropriate to consider whether the conduct

would be welcome—determinations should

be made based on the totality of the

circumstances. The following types of

information may be helpful in resolving the

dispute:

• Statements by any witnesses to the

alleged incident.

• Evidence about the relative credibility of

the allegedly harassed student and the

alleged harasser. For example, the level of

66104 Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Notices

detail and consistency of each person’s

account should be compared in an attempt to

determine who is telling the truth. Another

way to assess credibility is to see if

corroborative evidence is lacking where it

should logically exist. However, the absence

of witnesses may indicate only the

unwillingness of others to step forward,

perhaps due to fear of the harasser or a desire

not to get involved.

• Evidence that the alleged harasser has

been found to have harassed others may

support the credibility of the student

claiming the harassment; conversely, the

student’s claim will be weakened if he or she

has been found to have made false allegations

against other individuals.

• Evidence of the allegedly harassed

student’s reaction or behavior after the

alleged harassment. For example, were there

witnesses who saw the student immediately

after the alleged incident who say that the

student appeared to be upset? However, it is

important to note that some students may

respond to harassment in ways that do not

manifest themselves right away, but may

surface several days or weeks after the

harassment. For example, a student may

initially show no signs of having been

harassed, but several weeks after the

harassment, there may be significant changes

in the student’s behavior, including difficulty

concentrating on academic work, symptoms

of depression, and a desire to avoid certain

individuals and places at school.

• Evidence about whether the student

claiming harassment filed a complaint or

took other action to protest the conduct soon

after the alleged incident occurred. However,

failure to immediately complain may merely

reflect a fear of retaliation or a fear that the

complainant may not be believed rather than

that the alleged harassment did not occur.

• Other contemporaneous evidence. For

example, did the student claiming

harassment write about the conduct and his

or her reaction to it soon after it occurred

(e.g., in a diary or letter)? Did the student tell

others (friends, parents) about the conduct

(and his or her reaction to it) soon after it

occurred?

Recipient’s Response. Once a school has

notice of possible sexual harassment of

students—whether carried out by employees,

other students, or third parties—it should

take immediate and appropriate steps to

investigate or otherwise determine what

occurred and take steps reasonably

calculated to end any harassment, eliminate

a hostile environment if one has been

created, and prevent harassment from

occurring again. These steps are the school’s

responsibility whether or not the student

who was harassed makes a complaint or

otherwise asks the school to take action.83 As

described in the next section, in appropriate

circumstances the school will also be

responsible for taking steps to remedy the

effects of the harassment on the individual

student or students who were harassed. What

constitutes a reasonable response to

information about possible sexual

harassment will differ depending upon the

circumstances.

Response to Student or Parent Reports of

Harassment; Response to Direct Observation

of Harassment by a Responsible Employee. If

a student or the parent of an elementary or

secondary student provides information or

complains about sexual harassment of the

student, the school should initially discuss

what actions the student or parent is seeking

in response to the harassment. The school

should explain the avenues for informal and

formal action, including a description of the

grievance procedure that is available for

sexual harassment complaints and an

explanation of how the procedure works. If

a responsible school employee has directly

observed sexual harassment of a student, the

school should contact the student who was

harassed (or the parent, depending upon the

age of the student),84 explain that the school

is responsible for taking steps to correct the

harassment, and provide the same

information described in the previous

sentence.

Regardless of whether the student who was

harassed, or his or her parent, decides to file

a formal complaint or otherwise request

action on the student’s behalf (including in

cases involving direct observation by a

responsible employee), the school must

promptly investigate to determine what

occurred and then take appropriate steps to

resolve the situation. The specific steps in an

investigation will vary depending upon the

nature of the allegations, the source of the

complaint, the age of the student or students

involved, the size and administrative

structure of the school, and other factors.

However, in all cases the inquiry must be

prompt, thorough, and impartial. (Requests

by the student who was harassed for

confidentiality or for no action to be taken,

responding to notice of harassment from

other sources, and the components of a

prompt and equitable grievance procedure

are discussed in subsequent sections of this

guidance.)

It may be appropriate for a school to take

interim measures during the investigation of

a complaint. For instance, if a student alleges

that he or she has been sexually assaulted by

another student, the school may decide to

place the students immediately in separate

classes or in different housing arrangements

on a campus, pending the results of the

school’s investigation. Similarly, if the

alleged harasser is a teacher, allowing the

student to transfer to a different class may be

appropriate. In cases involving potential

criminal conduct, school personnel should

determine whether appropriate law

enforcement authorities should be notified.

In all cases, schools should make every effort

to prevent disclosure of the names of all

parties involved, except to the extent

necessary to carry out an investigation.

If a school determines that sexual

harassment has occurred, it should take

reasonable, timely, age-appropriate, and

effective corrective action, including steps

tailored to the specific situation.85

Appropriate steps should be taken to end the

harassment. For example, school personnel

may need to counsel, warn, or take

disciplinary action against the harasser,

based on the severity of the harassment or

any record of prior incidents or both.86 A

series of escalating consequences may be

necessary if the initial steps are ineffective in

stopping the harassment.87 In some cases, it

may be appropriate to further separate the

harassed student and the harasser, e.g., by

changing housing arrangements 88 or

directing the harasser to have no further

contact with the harassed student.

Responsive measures of this type should be

designed to minimize, as much as possible,

the burden on the student who was harassed.

If the alleged harasser is not a student or

employee of the recipient, OCR will consider

the level of control the school has over the

harasser in determining what response would

be appropriate.89

Steps should also be taken to eliminate any

hostile environment that has been created.

For example, if a female student has been

subjected to harassment by a group of other

students in a class, the school may need to

deliver special training or other interventions

for that class to repair the educational

environment. If the school offers the student

the option of withdrawing from a class in

which a hostile environment occurred, the

school should assist the student in making

program or schedule changes and ensure that

none of the changes adversely affect the

student’s academic record. Other measures

may include, if appropriate, directing a

harasser to apologize to the harassed student.

If a hostile environment has affected an

entire school or campus, an effective

response may need to include dissemination

of information, the issuance of new policy

statements, or other steps that are designed

to clearly communicate the message that the

school does not tolerate harassment and will

be responsive to any student who reports that

conduct.

In some situations, a school may be

required to provide other services to the

student who was harassed if necessary to

address the effects of the harassment on that

student.90 For example, if an instructor gives

a student a low grade because the student

failed to respond to his sexual advances, as

discussed in the section on ‘‘Harassment by

Teachers and Other Employees,’’ the

employee engaged in the harassment in the

context of providing aid, benefits, or services

to students. Because the school is responsible

for the discriminatory denial or limitation of

a benefit to the student, the school is

responsible for taking appropriate corrective

action, including remedying the effects of the

harassment on the victim. Thus, the school

may be required to make arrangements for an

independent reassessment of the student’s

work, if feasible, and change the grade

accordingly; make arrangements for the

student to take the course again with a

different instructor; provide tutoring; make

tuition adjustments; offer reimbursement for

professional counseling; or take other

measures that are appropriate to the

circumstances. As another example, if a

school delays responding or responds

inappropriately to information about

harassment, such as a case in which the

school ignores complaints by a student that

he or she is being sexually harassed by a

classmate, the school will be required to

remedy the effects of the harassment that

could have been prevented had the school

responded promptly and effectively.

Finally, a school should take steps to

prevent any further harassment 91 and to

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

66106 Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Notices

including whether the procedures provide

for—

• Notice to students, parents of elementary

and secondary students, and employees of

the procedure, including where complaints

may be filed;

• Application of the procedure to

complaints alleging harassment carried out

by employees, other students, or third

parties;

• Adequate, reliable, and impartial

investigation of complaints, including the

opportunity to present witnesses and other

evidence;

• Designated and reasonably prompt

timeframes for the major stages of the

complaint process;

• Notice to the parties of the outcome of

the complaint; 99 and

• An assurance that the school will take

steps to prevent recurrence of any

harassment and to correct its discriminatory

effects on the complainant and others, if

appropriate.100

Many schools also provide an opportunity

to appeal the findings or remedy or both. In

addition, because retaliation is prohibited by

Title IX, schools may want to include a

provision in their procedures prohibiting

retaliation against any individual who files a

complaint or participates in a harassment

inquiry.

Procedures adopted by schools will vary

considerably in detail, specificity, and

components, reflecting differences in

audiences, school sizes and administrative

structures, State or local legal requirements,

and past experience. In addition, whether

complaint resolutions are timely will vary

depending on the complexity of the

investigation and the severity and extent of

the harassment. During the investigation it is

a good practice for schools to inform students

who have alleged harassment about the status

of the investigation on a periodic basis.

A grievance procedure applicable to sexual

harassment complaints cannot be prompt or

equitable unless students know it exists, how

it works, and how to file a complaint. Thus,

the procedures should be written in language

appropriate to the age of the school’s

students, easily understood, and widely

disseminated. Distributing the procedures to

administrators, or including them in the

school’s administrative or policy manual,

may not by itself be an effective way of

providing notice, as these publications are

usually not widely circulated to and

understood by all members of the school

community. Many schools ensure adequate

notice to students by having copies of the

procedures available at various locations

throughout the school or campus; publishing

the procedures as a separate document;

including a summary of the procedures in

major publications issued by the school, such

as handbooks and catalogs for students,

parents of elementary and secondary

students, faculty, and staff; and identifying

individuals who can explain how the

procedures work.

A school must designate at least one

employee to coordinate its efforts to comply

with and carry out its Title IX

responsibilities.101 The school must notify all

of its students and employees of the name,

office address, and telephone number of the

employee or employees designated.102

Because it is possible that an employee

designated to handle Title IX complaints may

himself or herself engage in harassment, a

school may want to designate more than one

employee to be responsible for handling

complaints in order to ensure that students

have an effective means of reporting

harassment.103 While a school may choose to

have a number of employees responsible for

Title IX matters, it is also advisable to give

one official responsibility for overall

coordination and oversight of all sexual

harassment complaints to ensure consistent

practices and standards in handling

complaints. Coordination of recordkeeping

(for instance, in a confidential log maintained

by the Title IX coordinator) will also ensure

that the school can and will resolve recurring

problems and identify students or employees

who have multiple complaints filed against

them.104 Finally, the school must make sure

that all designated employees have adequate

training as to what conduct constitutes

sexual harassment and are able to explain

how the grievance procedure operates.105

Grievance procedures may include

informal mechanisms for resolving sexual

harassment complaints to be used if the

parties agree to do so.106 OCR has frequently

advised schools, however, that it is not

appropriate for a student who is complaining

of harassment to be required to work out the

problem directly with the individual alleged

to be harassing him or her, and certainly not

without appropriate involvement by the

school (e.g., participation by a counselor,

trained mediator, or, if appropriate, a teacher

or administrator). In addition, the

complainant must be notified of the right to

end the informal process at any time and

begin the formal stage of the complaint

process. In some cases, such as alleged sexual

assaults, mediation will not be appropriate

even on a voluntary basis. Title IX also

permits the use of a student disciplinary

procedure not designed specifically for Title

IX grievances to resolve sex discrimination

complaints, as long as the procedure meets

the requirement of affording a complainant a

‘‘prompt and equitable’’ resolution of the

complaint.

In some instances, a complainant may

allege harassing conduct that constitutes both

sex discrimination and possible criminal

conduct. Police investigations or reports may

be useful in terms of fact-gathering. However,

because legal standards for criminal

investigations are different, police

investigations or reports may not be

determinative of whether harassment

occurred under Title IX and do not relieve

the school of its duty to respond promptly.107

Similarly, schools are cautioned about using

the results of insurance company

investigations of sexual harassment

allegations. The purpose of an insurance

investigation is to assess liability under the

insurance policy, and the applicable

standards may well be different from those

under Title IX. In addition, a school is not

relieved of its responsibility to respond to a

sexual harassment complaint filed under its

grievance procedure by the fact that a

complaint has been filed with OCR.108

Finally, a public school’s employees may

have certain due process rights under the

United States Constitution. The Constitution

also guarantees due process to students in

public and State-supported schools who are

accused of certain types of infractions. The

rights established under Title IX must be

interpreted consistently with any federally

guaranteed rights involved in a complaint

proceeding. In both public and private

schools, additional or separate rights may be

created for employees or students by State

law, institutional regulations and policies,

such as faculty or student handbooks, and

collective bargaining agreements. Schools

should be aware of these rights and their

legal responsibilities to those accused of

harassment. Indeed, procedures that ensure

the Title IX rights of the complainant, while

at the same time according due process to

both parties involved, will lead to sound and

supportable decisions. Schools should ensure

that steps to accord due process rights do not

restrict or unnecessarily delay the protections

provided by Title IX to the complainant.

First Amendment. In cases of alleged

harassment, the protections of the First

Amendment must be considered if issues of

speech or expression are involved.109 Free

speech rights apply in the classroom (e.g.,

classroom lectures and discussions)110 and in

all other education programs and activities of

public schools (e.g., public meetings and

speakers on campus; campus debates, school

plays and other cultural events 111; and

student newspapers, journals, and other

publications 112). In addition, First

Amendment rights apply to the speech of

students and teachers.113

Title IX is intended to protect students

from sex discrimination, not to regulate the

content of speech. OCR recognizes that the

offensiveness of a particular expression as

perceived by some students, standing alone,

is not a legally sufficient basis to establish a

sexually hostile environment under Title

IX.114 In order to establish a violation of Title

IX, the harassment must be sufficiently

serious to deny or limit a student’s ability to

participate in or benefit from the education

program.115

Moreover, in regulating the conduct of its

students and its faculty to prevent or redress

discrimination prohibited by Title IX (e.g., in

responding to harassment that is sufficiently

serious as to create a hostile environment), a

school must formulate, interpret, and apply

its rules so as to protect academic freedom

and free speech rights. For instance, while

the First Amendment may prohibit a school

from restricting the right of students to

express opinions about one sex that may be

considered derogatory, the school can take

steps to denounce those opinions and ensure

that competing views are heard. The age of

the students involved and the location or

forum may affect how the school can respond

consistently with the First Amendment.116

As an example of the application of free

speech rights to allegations of sexual

harassment, consider the following:

Example 1: In a college level creative

writing class, a professor’s required reading

list includes excerpts from literary classics

that contain descriptions of explicit sexual

conduct, including scenes that depict women

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

1This 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.

3See, 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’’). 5See 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. 7Cf. 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). 8Title 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). 9Nashoba 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. 10See 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

66108 Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Notices

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). 12See 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 sexbased 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). 13See 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. 16These 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. 28For 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). 30See section on ‘‘Notice of Employee,

Peer, or Third Party Harassment.’’ 31See section on ‘‘Notice of Employee,

Peer, or Third Party Harassment.’’ 32See section on ‘‘Applicability of Title

IX’’ for scope of coverage. 33 Davis, 526 U.S. at 646. 34See section on ‘‘Notice of Employee,

Peer, or Third Party Harassment.’’ 35 34 CFR 106.31(b). 36 34 CFR 106.31(b). 37See section on ‘‘Notice of Employee,

Peer, or Third Party Harassment.’’ 38Cf. Davis, 526 U.S. at 646. 39 34 CFR 106.31(b). 40 34 CFR 106.31(b). 41Consistent 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). 42Whether 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. 43The 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). 45For 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). 46Cf. 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

Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Notices 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.’ § 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. 54The 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. 55See, 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.) 56See 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 studenton-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. 60See 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). 61See Davis, 526 U.S. at 651, citing both

Oncale, 523 U.S. at 82, and OCR’s 1997

guidance (62 FR 12041–12042). 62Harris, 510 U.S. at 23. 63See, 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. 65See 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. 66See 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). 67See, e.g., Andrews, 895 F.2d at 1484

(‘‘Harassment is pervasive when ‘incidents of

harassment occur either in concert or with

66110 Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Notices

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). 69See 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). 71See, e.g., McKinney, 765 F.2d at 1138–

49; Robinson v. Jacksonville Shipyards, 760

F.Supp. 1486, 1522 (M.D. Fla. 1991). 72Cf. Patricia H., 830 F.Supp. at 1297. 73See, e.g., Barrett, 584 F.Supp. at 30

(finding harassment occurring in a car from

which the victim could not escape

particularly severe). 74See 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 CityDel 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). 76Henson v. City of Dundee, 682 F.2d 897,

903 (11th Cir. 1982) (Title VII case). 77See 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.’’ 78 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

* * *’’). 79See 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. 80The school bears the burden of rebutting

the presumption. 81Of course, nothing in Title IX would

prohibit a school from implementing policies

prohibiting sexual conduct or sexual

relationships between students and adult

employees.

82See note 81. 83Schools 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. 84 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. 85Bundy 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). 86See 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). 87See 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). 88Offering 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). 89See section on ‘‘Harassment by Other

Students or Third Parties.’’ 90University 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). 91Even 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). 92 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. 93Tacoma 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

Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Notices 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 nonmanagement personnel). 94 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. 95 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. 96 Fenton Community High School Dist. #100,

OCR Case 05–92–1104. 97While 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. 98See 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). 99The 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. 100The section in the guidance on

‘‘Recipient’s Response’’ provides examples of

reasonable and appropriate corrective action. 101 34 CFR 106.8(a). 102 Id. 103See Meritor, 477 U.S. at 72–73.

104University 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. 105For 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. 107Academy 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). 108Cf. 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). 109The 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 RendellBaker 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. 110See, 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). 111See 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). 112See 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.) 113Tinker 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.) 114See, 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.) 115See 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). 116Compare 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

66112 Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Notices

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

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

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

66114 Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Notices

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]

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