12034 Federal Register / Vol. 62, No. 49 / Thursday, March 13, 1997 / Notices

DEPARTMENT OF EDUCATION

Office for Civil Rights; Sexual

Harassment Guidance: Harassment of

Students by School Employees, Other

Students, or Third Parties

ACTION: Final policy guidance.

SUMMARY: The Assistant Secretary for

Civil Rights issues a final document

entitled ‘‘Sexual Harassment Guidance’’

(Guidance). Sexual harassment of

students is prohibited by Title IX of the

Education Amendments of 1972 under

the circumstances described in the

Guidance. The Guidance provides

educational institutions with

information regarding the standards that

are used by the Office for Civil Rights

(OCR), and that institutions should use,

to investigate and resolve allegations of

sexual harassment of students engaged

in by school employees, other students

(peers), or third parties.

FOR FURTHER INFORMATION CONTACT:

Howard I. Kallem. U.S. Department of

Education, 600 Independence Avenue,

S.W., Room 5412 Switzer Building,

Washington, D.C. 20202–1174.

Telephone (202) 205–9641. Internet

address: HowardlKallem@ed.gov For

additional copies of this Guidance,

individuals may call OCR’s Customer

Service Team at (202) 205–5413 or tollfree at 1–800–421–3481. Individuals

who use a telecommunications device

for the deaf (TDD) may call the

Department’s toll-free number, 1–800–

421–3481, in conjunction with the

phone company’s TDD relay

capabilities. This Guidance will also be

available at OCR’s site on the Internet at

URL http://www.ed.gov/offices/OCR/

ocrpubs.html.

SUPPLEMENTARY INFORMATION:

Purpose of the Guidance

Title IX of the Education

Amendments of 1972 (Title IX)

prohibits discrimination on the basis of

sex in education programs and activities

receiving Federal financial assistance.

Sexual harassment of students can be a

form of discrimination prohibited by

Title IX. The Office for Civil Rights has

long recognized that sexual harassment

of students engaged in by school

employees, other students, or third

parties is covered by Title IX. OCR’s

policy and practice is consistent with

the Congress’ goal in enacting Title IX—

the elimination of sex-based

discrimination in federally assisted

education programs. It is also consistent

with United States Supreme Court

precedent and well-established legal

principles that have developed under

Title IX, as well as under the related

anti-discrimination provisions of Title

VI and Title VII of the Civil Rights Act

of 1964.

The elimination of sexual harassment

of students in federally assisted

educational programs is a high priority

for OCR. Through its enforcement of

Title IX, OCR has learned that a

significant number of students, both

male and female, have experienced

sexual harassment, that sexual

harassment can interfere with a

student’s academic performance and

emotional and physical well-being, and

that preventing and remedying sexual

harassment in schools is essential to

ensure nondiscriminatory, safe

environments in which students can

learn.

The Guidance applies to students at

every level of education. It provides

information intended to enable school

employees and officials to identify

sexual harassment and to take steps to

prevent its occurrence. In addition, the

Guidance is intended to inform

educational institutions about the

standards that should be followed when

investigating and resolving claims of

sexual harassment of students. The

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.

The Guidance discusses factors to be

considered in applying the standards

and examples that are designed to

illustrate how the standards may apply

to particular situations. Overall, the

Guidance illustrates that in addressing

allegations of sexual harassment, the

judgment and common sense of teachers

and school administrators are important

elements of a response that meets the

requirements of Title IX.

In addition, it is clear from the

Guidance that not all behavior with

sexual connotations constitutes sexual

harassment under Federal law. In order

to give rise to a complaint under Title

IX, sexual harassment must be

sufficiently severe, persistent, or

pervasive that it adversely affects a

student’s education or creates a hostile

or abusive educational environment. For

a one-time incident to rise to the level

of harassment, it must be severe.

As illustrated in the Guidance, school

personnel should consider the age and

maturity of students when responding

to allegations of sexual harassment. The

Guidance explains that age is relevant in

determining whether sexual harassment

occurred in the first instance, as well as

in determining the appropriate response

by the school. For example, age is

relevant in determining whether a

student welcomed the conduct and in

determining whether the conduct was

severe, persistent, or pervasive. Age is a

factor to be considered by school

personnel when determining what type

of education or training to provide to

students in order to prevent sexual

harassment from occurring.

Notably, during the time that the

Guidance was available for public

comment, several incidents involving

young students occurred in public

schools and were widely reported in the

press. In one incident a school

reportedly punished a six-year-old boy,

under its sexual harassment policy, for

kissing a female classmate on the cheek.

These incidents provide a good example

of how the Guidance can assist schools

in formulating appropriate responses to

conduct of this type. The factors in the

Guidance confirm that a kiss on the

cheek by a first grader does not

constitute sexual harassment.

Consistent with the Guidance’s

reliance on school employees and

officials to use their judgment and

common sense, the Guidance offers

school personnel flexibility in how to

respond to sexual harassment.

Commenters who read the Guidance as

always requiring schools to punish

alleged harassment under an explicit

sexual harassment policy rather than by

use of a general disciplinary or behavior

code, even if the latter may provide

more age-appropriate ways to handle

those incidents, are incorrect. First, if

inappropriate conduct does not rise to

the level of harassment prohibited by

Title IX, school employees or officials

may rely entirely on their own judgment

regarding how best to handle the

situation.

Even if a school determines that a

student’s conduct is sexual harassment,

the Guidance explicitly states that Title

IX permits the use of a general student

disciplinary procedure. The critical

issue under Title IX is whether

responsive action that a school could

reasonably be expected to take is

effective in ending the sexual

harassment and in preventing its

recurrence. If treating sexual harassment

merely as inappropriate behavior is not

effective in ending the harassment or in

preventing it from escalating, schools

must take additional steps to ensure that

students know that the conduct is

prohibited sex discrimination.

Process in Developing the Guidance

Because of the importance of

eliminating sexual harassment in

schools, and based on the requests of

schools, teachers, parents, and other

interested parties, OCR determined that

it should provide to schools a
Federal Register / Vol. 62, No. 49 / Thursday, March 13, 1997 / Notices 12035

comprehensive discussion of the legal

standards and related issues involved in

resolving sexual harassment incidents.

While this document reflects

longstanding OCR policy and practice in

this area, it also reflects extensive

consultation with interested parties.

Even before making documents

available for formal comment, OCR held

a series of meetings with groups

representing students, teachers, school

administrators, and researchers. In these

discussions, OCR gained valuable

information regarding the realities of

sexual harassment in schools, as well as

information regarding promising

practices for identifying and preventing

harassment. These insights and learning

are reflected in the Guidance.

Issuance of the Guidance for Comment

and the Format of the Final Guidance

On August 16, 1996, the Assistant

Secretary for Civil Rights published a

notice in the Federal Register (61 FR

42728) regarding the availability of a

document entitled: ‘‘Sexual Harassment

Guidance: Peer Sexual Harassment’’

(Peer Guidance) and inviting comments

on the document. Subsequently, on

October 4, 1996, the Assistant Secretary

published in the Federal Register (61

FR 52172) a request for comments on a

document entitled: ‘‘Sexual Harassment

Guidance: Harassment of Students by

School Employees’’ (Employee

Guidance). Both notices stated that the

guidance documents reflected

longstanding OCR policy and practice

and invited comments and

recommendations regarding their clarity

and completeness.

The most significant change in the

format of the final document is that it

combines the two separate guidance

documents into one document that

addresses sexual harassment of students

by peers, school employees, or third

parties. Commenters frequently stated

that a combined document would be

clearer and easier to use. OCR agrees.

Thus, the term ‘‘Guidance’’ when used

in this preamble refers to the combined

document that incorporates both the

Peer Guidance and the Employee

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 web site.

For a copy of the pamphlet, individuals

may call OCR’s Customer Service Team

at (202) 205–5413 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 factand 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
12036 Federal Register / Vol. 62, No. 49 / Thursday, March 13, 1997 / Notices

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

Comments: Several commenters

requested clarification of the standards

to be applied to sexual harassment cases

in States subject to the jurisdiction of

the United States Court of Appeals for

the Fifth Circuit, specifically in light of

the Fifth Circuit’s decision in Rowinsky

v. Bryan Independent School District, 80

F.3d 1006 (5th Cir. 1996), cert. denied,

117 S. Ct. 165 (1996).

Discussion: One beneficial result of

the Guidance will be to provide courts

with ready access to the standards used

by the agency that has been given the

authority by law to interpret and enforce

Title IX. Courts generally benefit from

and defer to the expertise of an agency

with that authority.

Nevertheless, OCR recognizes that

recent Fifth Circuit decisions add to

schools’ confusion regarding Title IX

legal standards. In Rowinsky, the Fifth

Circuit held that a school is not liable

under Title IX even if it is on notice of

peer sexual harassment and it ignores or

fails to remedy it, unless it responds

differently based on the sex of the

alleged victim. Consistent with the

vigorous dissent in Rowinsky, as well as

with other Federal decisions contrary to

the Rowinsky holding, OCR continues to

believe that the Rowinsky decision was

wrongly decided. In OCR’s view, the

holding in Rowinsky was based on a

mistaken belief that the legal principle

underpinning this aspect of the

Guidance makes a school responsible

for the actions of a harassing student,

rather than for the school’s own

discrimination in failing to respond

once it knows that the harassment is

happening.

In two very recent decisions involving

sexual harassment of students by school

employees, the Fifth Circuit again

applied Title IX law in a manner

inconsistent with OCR’s longstanding

policy and practice. First, in Canutillo

Indep. School Dist. v. Leija, 101 F.3d

393, 398–400 (5th Cir. 1996), the court

held, again over a strong dissent and

contrary to OCR policy, that a school

district was not liable for the sexual

molestation of a second grade student

by one of her teachers because the

student and her mother only reported

the harassment to her homeroom

teacher. The court determined that

notice to the teacher was not notice to

the school—notwithstanding that a

school handbook instructed students

and parents to report complaints to the

child’s primary or homeroom teacher.

Finally, in Rosa H. v. San Elizario

Indep. School Dist., 1997 U.S. App.

LEXIS 2780 (Feb. 17, 1997), the Fifth

Circuit reversed a jury finding that a

school district was liable under Title IX

for a hostile environment created by the

school’s male karate instructor, who

repeatedly initiated sexual intercourse

with a fifteen-year-old female karate

student, often during the school day.

The court held that, while ‘‘there was no

question that the student was subject to

discrimination based on sex,’’ a school

is liable only in situations in which an

employee who has been invested by the

school board with supervisory power

over the offending employee actually

knew of the abuse, had the power to end

the abuse, and failed to do so.

Several of the decisions discuss

according ‘‘appreciable deference’’ to

OCR’s interpretation of Title IX in

appropriate circumstances and contain

other indications that Title IX law is

evolving in the Fifth Circuit. When OCR

investigates complaints involving

schools in States in the Fifth Circuit

(Texas, Louisiana, and Mississippi), it

will in each case determine and follow

the current applicable law, even if it is

inconsistent with OCR policy. OCR will

also participate where appropriate, and

in conjunction with the Department of

Justice, to shape the evolution of Title

IX law in a manner consistent with the

Guidance.

Inconsistent decisions do not prohibit

schools in States in the Fifth Circuit

from following the Guidance. Since the

Guidance assists school in ensuring that

students can learn in a safe and

nondiscriminatory educational

environment, it is the better practice for

these schools to follow the Guidance.

Indeed, in light of the evolving case law

in the Fifth Circuit, following the

Guidance may also be the safest way to

ensure compliance with the

requirements of Title IX. School

personnel in States in the Fifth Circuit

should also consider whether State,

local, or other Federal authority affects

their obligations in these areas.

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
Federal Register / Vol. 62, No. 49 / Thursday, March 13, 1997 / Notices 12037

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

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

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
12038 Federal Register / Vol. 62, No. 49 / Thursday, March 13, 1997 / Notices

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 a 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 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.

Dated: March 10, 1997.

Norma V. Cantu ́,

Assistant Secretary for Civil Rights.

Sexual Harassment Guidance:

Harassment of Students 1 by School

Employees, Other Students, or Third

Parties

Summary of Contents

Introduction

Applicability of Title IX

Liability of a School for Sexual Harassment

Welcomeness

Severe, Persistent, or Pervasive

Notice

Recipient’s Response

Prompt and Equitable Grievance Procedures

First Amendment

Introduction

Under Title IX of the Education

Amendments of 1972 (Title IX) and its

implementing regulations, no individual

may be discriminated against on the

basis of sex in any education program or

activity receiving Federal financial

assistance.2 Sexual harassment of

students is a form of prohibited sex

discrimination 3 under the

circumstances described in the

Guidance. The following types of

conduct constitute sexual harassment:

Quid Pro Quo Harassment

A school employee 4 explicitly or

implicitly conditions a student’s

participation in an education program

or activity or bases an educational

decision on the student’s submission to

unwelcome sexual advances, requests

for sexual favors, or other verbal,

nonverbal, or physical conduct of a

sexual nature.5 Quid pro quo

harassment is equally unlawful whether

the student resists and suffers the

threatened harm or submits and thus

avoids the threatened harm.

Hostile Environment Sexual Harassment

Sexually harassing conduct (which

can include unwelcome sexual

advances, requests for sexual favors, and

other verbal, nonverbal, or physical

conduct of a sexual nature) 6 by an

employee, by another student, or by a

third party that is sufficiently severe,

persistent, or pervasive to limit a

student’s ability to participate in or

benefit from an education program or

activity, or to create a hostile or abusive

educational environment.7

Schools are required by the Title IX

regulations to have grievance

procedures through which students can

complain of alleged sex discrimination,

including sexual harassment.8 As

outlined in this guidance, grievance

procedures also provide schools with an

excellent mechanism to be used in their

efforts to prevent sexual harassment

before it occurs.

Finally, if the alleged harassment

involves issues of speech or expression,

a school’s obligations may be affected by

the application of First Amendment

principles.

These and other issues are discussed

in more detail in the following

paragraphs.

Applicability of Title IX

Title IX applies to all public and

private educational institutions that

receive Federal funds, including

elementary and secondary schools,

school districts, proprietary schools,

colleges, and universities. The Guidance

uses the term ‘‘schools’’ to refer to all

those institutions. The ‘‘education

program or activity’’ of a school

includes all of the school’s operations.9

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 of 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.10 Similarly, one student’s

demonstration of a sports maneuver or
Federal Register / Vol. 62, No. 49 / Thursday, March 13, 1997 / Notices 12039

technique requiring contact with

another student will not be considered

sexual harassment. However, in some

circumstances, nonsexual conduct may

take on sexual connotations and may

rise to the level of sexual harassment.

For example, a teacher’s repeatedly

hugging and putting his or her arms

around students under inappropriate

circumstances could create a hostile

environment.

Title IX protects any ‘‘person’’ from

sex discrimination; accordingly both

male and female students are protected

from sexual harassment engaged in by a

school’s employees, other students, or

third parties.11 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.12 An

example would be a campaign of

sexually explicit graffiti directed at a

particular girl by other girls.13

Although Title IX does not prohibit

discrimination on the basis of sexual

orientation,14 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 or language 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 lesbian student

for physical sexual advances) may

create a sexually hostile environment

and, therefore, may be prohibited by

Title IX. 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.15

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, but not involving

conduct of a sexual nature, may be a

form of sex discrimination that violates

Title IX if it is sufficiently severe,

persistent, or pervasive and directed at

individuals because of their sex.16 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. Although a comprehensive

discussion of gender-based harassment

is beyond the scope of this Guidance, in

assessing all related circumstances to

determine whether a hostile

environment exists, incidents of genderbased harassment combined with

incidents of sexual harassment could

create a hostile environment, even if

neither the gender-based harassment

alone nor the sexual harassment alone

would be sufficient to do so.17

Liability of a School for Sexual

Harassment

Liability of a School for Sexual

Harassment by its Employees

A school’s liability for sexual

harassment by its employees is

determined by application of agency

principles,18 i.e., by principles

governing the delegation of authority to

or authorization of another person to act

on one’s behalf.

Accordingly, a school will always be

liable for even one instance of quid pro

quo harassment by a school employee in

a position of authority, such as a teacher

or administrator, whether or not it

knew, should have known, or approved

of the harassment at issue.19 Under

agency principles, if a teacher or other

employee uses the authority he or she

is given (e.g., to assign grades) to force

a student to submit to sexual demands,

the employee ‘‘stands in the shoes’’ of

the school and the school will be

responsible for the use of its authority

by the employee or agent.20

A school will also be liable for hostile

environment sexual harassment by its

employees,21 i.e., for harassment that 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 if

the employee— (1) acted with apparent

authority (i.e., because of the school’s

conduct, the employee reasonably

appears to be acting on behalf of the

school, whether or not the employee

acted with authority); 22 or (2) was aided

in carrying out the sexual harassment of

students by his or her position of

authority with the institution.23 For

example, a school will be liable if a

teacher abuses his or her delegated

authority over a student to create a

hostile environment, such as if the

teacher implicitly threatens to fail a

student unless the student responds to

his or her sexual advances, even though

the teacher fails to carry out the threat.24

As this example illustrates, in many

cases the line between quid pro quo and

hostile environment discrimination will

be blurred, and the employee’s conduct

may constitute both types of

harassment. However, what is important

is that the school is liable for that

conduct under application of agency

principles, regardless of whether it is

labeled as quid pro quo or hostile

environment harassment.

Whether other employees, such as a

janitor or cafeteria worker, are in

positions of authority in relation to

students—or whether it would be

reasonable for the student to believe the

employees are, even if the employees

are not (i.e., apparent authority)—will

depend on factors such as the authority

actually given to the employee 25 (e.g., in

some elementary schools, a cafeteria

worker may have authority to impose

discipline) and the age of the student.

For example, in some cases the younger

a student is, the more likely it is that he

or she will consider any adult employee

to be in a position of authority.

Even in situations not involving (i)

quid pro quo harassment, (ii) creation of

a hostile environment through an

employee’s apparent authority, or (iii)

creation of a hostile environment in

which the employee is aided in carrying

out the sexual harassment by his or her

position of authority, a school will be

liable for sexual harassment of its

students by its employees under the

same standards applicable to peer and

third party hostile environment sexual

harassment, as discussed in the next

section. That is, if the school fails to

take immediate and appropriate steps to

remedy known harassment, then the

school will be liable under Title IX.26 It

is important to emphasize that under

this standard of liability the school can

avoid violating Title IX if it takes

immediate and appropriate action upon

notice of the harassment.

Liability of a School for Peer or Third

Party Harassment 27

In contrast to the variety of situations

in which a school may be liable for

sexual harassment by its employees, a

school will be liable under Title IX if its

students sexually harass other students

if (i) a hostile environment exists in the

school’s programs or activities, (ii) the

school knows or should have known of

the harassment, and (iii) the school fails

to take immediate and appropriate

corrective action.28 (Each of these

factors is discussed in detail in

subsequent sections of the Guidance.)

Under these circumstances, a school’s

failure to respond to the existence of a

hostile environment within its own

programs or activities permits an

atmosphere of sexual discrimination to

permeate the educational program and

results in discrimination prohibited by

Title IX. Conversely, if, upon notice of

hostile environment harassment, a

school takes immediate and appropriate
12040 Federal Register / Vol. 62, No. 49 / Thursday, March 13, 1997 / Notices

steps to remedy the hostile

environment, the school has avoided

violating Title IX. Thus, Title IX does

not make a school responsible for the

actions of harassing students, but rather

for its own discrimination in failing to

remedy it once the school has notice.

Sexually harassing conduct of third

parties, who are not themselves

employees or students at the school

(e.g., a visiting speaker or members of a

visiting athletic club) can also cause a

sexually hostile environment in school

programs or activities. For the same

reason that a school will be liable under

Title IX for a hostile environment

caused by its students, a school will be

liable if third parties sexually harass its

students if (i) a hostile environment

exists in the school’s programs or

activities, (ii) the school knows or

should have known of the harassment,

and (iii) the school fails to take

immediate and appropriate corrective

action.29 However, the type of

appropriate steps the school should take

will differ depending on the level of

control the school has over the third

party harasser.30 This issue is discussed

in ‘‘Recipient’s Response.’’

Effect of Grievance Procedures on

Liability

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.31 (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 Title IX. 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.

Accordingly, in the absence of

effective policies and grievance

procedures, if the alleged harassment

was sufficiently severe, persistent, or

pervasive to create a hostile

environment, a school will be in

violation of Title IX because of the

existence of a hostile environment, even

if the school was not aware of the

harassment and thus failed to remedy

it.32 This is because, without a policy

and procedure, a student does not know

either of the school’s interest in

preventing this form of discrimination

or how to report harassment so that it

can be remedied. Moreover, under the

agency principles previously discussed,

a school’s failure to implement effective

policies and procedures against

discrimination may create apparent

authority for school employees to harass

students.33

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 and effective Title IX

grievance procedures; 34 (2) the school

appropriately investigated or otherwise

responded to allegations of sexual

harassment; and (3) the school has taken

immediate and appropriate corrective

action responsive to quid pro quo or

hostile environment harassment. (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

take no further action other than

monitoring compliance with any

agreement between the school and OCR.

This is true in cases in which the school

was in violation of Title IX, as well as

those in which there has been no

violation of Title IX. 35

Welcomeness

In order to be actionable as

harassment, sexual conduct must be

unwelcome. Conduct is unwelcome if

the student did not request or invite it

and ‘‘regarded the conduct as

undesirable or offensive.’’ 36

Acquiescence in the conduct or the

failure to complain does not always

mean that the conduct was welcome.37

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 sexually

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.38 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.39

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, 40 OCR will consider a

number of factors in determining

whether a school employee’s sexual

advances or other sexual conduct could

be considered welcome.41 In addition,

OCR will consider these factors in all

cases involving postsecondary students

in making those determinations.42 The

factors include:

• 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
Federal Register / Vol. 62, No. 49 / Thursday, March 13, 1997 / Notices 12041

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 could be welcome—

determinations should be made based

on the totality of the circumstances. The

following types of information may be

helpful in resolving the dispute:

• Statements by any witnesses to the

alleged incident.

• Evidence about the relative

credibility of the allegedly harassed

student and the alleged harasser. For

example, the level of detail and

consistency of each person’s account

should be compared in an attempt to

determine who is telling the truth.

Another way to assess credibility is to

see if corroborative evidence is lacking

where it should logically exist.

However, the absence of witnesses may

indicate only the unwillingness of

others to step forward, perhaps due to

fear of the harasser or a desire not to get

involved.

• Evidence that the alleged harasser

has been found to have harassed others

may support the credibility of the

student claiming the harassment;

conversely, the student’s claim will be

weakened if he or she has been found

to have made false allegations against

other individuals.

• Evidence of the allegedly harassed

student’s reaction or behavior after the

alleged harassment. For example, were

there witnesses who saw the student

immediately after the alleged incident

who say that the student appeared to be

upset? However, it is important to note

that some students may respond to

harassment in ways that do not manifest

themselves right away, but may surface

several days or weeks after the

harassment. For example, a student may

initially show no signs of having been

harassed, but several weeks after the

harassment, there may be significant

changes in the student’s behavior,

including difficulty concentrating on

academic work, symptoms of

depression, and a desire to avoid certain

individuals and places at school.

• Evidence about whether the student

claiming harassment filed a complaint

or took other action to protest the

conduct soon after the alleged incident

occurred. However, failure to

immediately complain may merely

reflect a fear of retaliation or a fear that

the complainant may not be believed

rather than that the alleged harassment

did not occur.

• Other contemporaneous evidence.

For example, did the student claiming

harassment write about the conduct,

and his or her reaction to it, soon after

it occurred (e.g., in a diary or letter)?

Did the student tell others (friends,

parents) about the conduct (and his or

her reaction to it) soon after it occurred?

Severe, Persistent, or Pervasive

Hostile environment sexual

harassment of a student or students by

other students, employees, or third

parties is created if 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.

Thus, conduct that is sufficiently severe,

but not persistent or pervasive, can

result in hostile environment sexual

harassment.

In deciding whether conduct is

sufficiently severe, persistent, or

pervasive, the conduct should be

considered from both a subjective 43 and

objective 44 perspective. In making this

determination, all relevant

circumstances should be considered 45:

• The degree to which the conduct

affected one or more students’

education. For a hostile environment to

exist, the conduct must have limited the

ability of a student to participate in or

benefit from his or her education or

altered the conditions of the student’s

educational environment.46

•• Many hostile environment cases

involve tangible or obvious injuries.47

For example, a student’s grades may go

down or the student may be forced to

withdraw from school because of the

harassing behavior.48 A student may

also suffer physical injuries and mental

or emotional distress.49

•• However, a hostile environment

may exist even if there is no tangible

injury to the student.50 For example, a

student may have been able to keep up

his or her grades and continue to attend

school even though it was more difficult

for him or her to do so because of the

harassing behavior.51 A student may be

able to remain on a sports team, despite

feeling humiliated or angered by

harassment that creates a hostile

environment.52 Harassing conduct in

these examples alters the student’s

educational environment on the basis of

sex.

•• A hostile environment can occur

even if the harassment is not targeted

specifically at the individual

complainant.53 For example, if a student

or group of students regularly directs

sexual comments toward a particular

student, a hostile environment may be

created not only for the targeted student,

but also for others who witness the

conduct. Similarly, if a middle school

teacher directs sexual comments toward

a particular student, a hostile

environment may be created for the

targeted student and for the students

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.54 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, 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, genital area, or

buttocks, it need not be as persistent or

pervasive in order to create a hostile

environment. Indeed, a single or

isolated incident of sexual harassment

may, if sufficiently severe, create a

hostile environment.55 On the other

hand, conduct that is not severe,

persistent, or pervasive 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.56 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

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 that 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.57

• The number of individuals

involved. Sexual harassment may be

committed by an individual or a group.
12042 Federal Register / Vol. 62, No. 49 / Thursday, March 13, 1997 / Notices

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,58 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.59

• 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

the students to avoid their harassers.60

Harassing conduct in a personal or

secluded area such as a dormitory room

or residence hall can also 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 instances at the school, not

involving the same students, could—

taken together—create a hostile

environment, even if each by itself

would not be sufficient.61

• 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 severe,

persistent, or pervasive to create a

sexually hostile environment.62

Notice

A school will be in violation of Title

IX if the school ‘‘has notice’’ of a

sexually hostile environment and fails

to take immediate and appropriate

corrective action.63 A school has notice

if it actually ‘‘knew, or in the exercise

of reasonable care, should have known’’

about the harassment.64 In addition, as

long as an agent or responsible

employee of the school received

notice,65 the school has notice.

A school can receive notice in many

different ways. A student may have filed

a grievance or complained to a teacher

about fellow students sexually harassing

him or her. A student, parent, or other

individual may have contacted other

appropriate personnel, such as a

principal, campus security, bus driver,

teacher, an affirmative action officer, or

staff in the office of student affairs. An

agent or responsible employee of the

school may have witnessed the

harassment. The school may receive

notice 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 received notice

from flyers about the incident or

incidents posted around the school.66

Constructive notice exists if the

school ‘‘should have’’ known about the

harassment—if the school would have

found out about the harassment through

a ‘‘reasonably diligent inquiry.’’ 67 For

example, if a school knows of some

incidents of harassment, there may be

situations in which it will be charged

with notice of others—if the known

incidents should have triggered an

investigation that would have led to a

discovery of the additional incidents. 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 hallways, graffiti in public

areas, or harassment occurring during

recess under a teacher’s supervision).68

In addition, if a school otherwise has

actual or constructive notice of a hostile

environment and fails to take immediate

and appropriate corrective action, a

school has violated Title IX even if the

student fails to use the school’s existing

grievance procedures.

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.69 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 by a Responsible Employee

or Agent of Harassment

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 or agent 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), 70 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 school employee or agent),

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 the

Guidance.)
Federal Register / Vol. 62, No. 49 / Thursday, March 13, 1997 / Notices 12043

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 immediately place the students 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 public

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. 71

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. 72 A series of

escalating consequences may be

necessary if the initial steps are

ineffective in stopping the

harassment. 73 In some cases, it may be

appropriate to further separate the

harassed student and the harasser, e.g.,

by changing housing arrangements 74 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 75.

Steps also should 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. 76 For example, if an

instructor gives a student a low grade

because the student failed to respond to

his sexual advances, this constitutes

quid pro quo harassment for which the

school is liable under Title IX regardless

of whether it knew of the harassment.

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

appropriately.

Finally, a school should take steps to

prevent any further harassment 77 and to

prevent any retaliation against the

student who made the complaint (or

was the subject of the harassment),

against a person who filed a complaint

on behalf of a student, or against those

who provided information as

witnesses.78 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.79

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 try 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 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.80

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
12044 Federal Register / Vol. 62, No. 49 / Thursday, March 13, 1997 / Notices

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 or agent

directly observes sexual harassment of a

student. If a school learns of harassment

through other means, for example if

information about harassment is

received from a third party (such as

from a witness to an incident or an

anonymous letter or telephone call),

different factors will affect the school’s

response. These factors include the

source and nature of the information;

the seriousness of the alleged incident;

the specificity of the information; the

objectivity and credibility of the source

of the report; whether any individuals

can be identified who were subjected to

the alleged harassment; and whether

those individuals want to pursue the

matter. If, based on these factors, it is

reasonable for the school to investigate

and it can confirm the allegations, the

considerations described in the previous

sections concerning interim measures

and appropriate responsive action will

apply.

For example, if a parent visiting a

school observes a student repeatedly

harassing a group of female students

and reports this to school officials,

school personnel can speak with the

female students to confirm whether that

conduct has occurred and whether they

view it as unwelcome. If the school

determines that the conduct created a

hostile environment, it can take

reasonable, age-appropriate steps to

address the situation. If, on the other

hand, the students in this example were

to ask that their names not be disclosed

or indicate that they do not want to

pursue the matter, the considerations

described in the previous section related

to requests for confidentiality will shape

the school’s response.

In a contrasting example, a student

newspaper at a large university may

print an anonymous letter claiming that

a professor is sexually harassing

students in class on a daily basis, but

the letter provides no clue as to the

identity of the professor or the

department in which the conduct is

allegedly taking place. Due to the

anonymous source and lack of

specificity of the information, a school

would not reasonably be able to

investigate and confirm these

allegations. However, in response to the

anonymous letter, the school could

submit a letter or article to the

newspaper reiterating its policy against

sexual harassment, encouraging persons

who believe that they have been

sexually harassed to come forward, and

explaining how its grievance procedures

work.

Prevention

A policy specifically prohibiting

sexual harassment and separate

grievance procedures for violations of

that policy can help ensure that all

students and employees understand the

nature of sexual harassment and that the

school will not tolerate it. Indeed, they

might even bring conduct of a sexual

nature to the school’s attention so that

the school can address it before it

becomes sufficiently severe, persistent,

or pervasive 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 Title IX 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. 81

Accordingly, regardless of whether

harassment occurred, a school violates

this requirement of Title IX if it does not

have those procedures and policy in

place.82

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.83 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 that conduct is

prohibited sex discrimination, a

school’s general policy and procedures

relating to sex discrimination

complaints will not be considered

effective.84

OCR has identified a number of

elements in evaluating whether a

school’s grievance procedures are

prompt and equitable, including

whether the procedures provide for—

(1) Notice to students, parents of

elementary and secondary students, and

employees of the procedure, including

where complaints may be filed;

(2) Application of the procedure to

complaints alleging harassment carried

out by employees, other students, or

third parties;

(3) Adequate, reliable, and impartial

investigation of complaints, including

the opportunity to present witnesses

and other evidence;

(4) Designated and reasonably prompt

timeframes for the major stages of the

complaint process;

(5) Notice to the parties of the

outcome of the complaint; 85 and

(6) 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.86

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.
Federal Register / Vol. 62, No. 49 / Thursday, March 13, 1997 / Notices 12045

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.87 The school must

notify all of its students and employees

of the name, office address, and

telephone number of the employee or

employees designated.88 Because it is

possible that an employee designated to

handle Title IX complaints may him 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.89 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.90 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.91

Grievance procedures may include

informal mechanisms for resolving

sexual harassment complaints to be

used if the parties agree to do so.92 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 factgathering. However, because legal

standards for criminal conduct 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.93

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.94

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 Statesupported 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.95 Free

speech rights apply in the classroom

(e.g., classroom lectures and

discussions) 96 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 97; and student newspapers,

journals and other publications 98). In

addition, First Amendment rights apply

to the speech of students and teachers.99

Title IX is intended to protect

students from sex discrimination, not to

regulate the content of speech. OCR

recognizes that the offensiveness of

particular expression as perceived by

some students, standing alone, is not a

legally sufficient basis to establish a

sexually hostile environment under

Title IX. 100 In order to establish a

violation of Title IX, the harassment

must be 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. 101

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 severe,

persistent, or pervasive 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
12046 Federal Register / Vol. 62, No. 49 / Thursday, March 13, 1997 / Notices

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 consistent with the First

Amendment.102 As an example of the

application of free speech rights to

allegations of sexual harassment,

consider the following:

Example 1: In a college level creative

writing class, a professor’s required

reading list includes excerpts from

literary classics that contain

descriptions of explicit sexual conduct,

including scenes that depict women in

submissive and demeaning roles. The

professor also assigns students to write

their own materials, which are read in

class. Some of the student essays

contain sexually derogatory themes

about women. Several female students

complain to the Dean of Students that

the materials and related classroom

discussion have created a sexually

hostile environment for women in the

class. What must the school do in

response?

Answer: Academic discourse in this

example is protected by the First

Amendment even if it is offensive to

individuals. Thus, Title IX would not

require the school to discipline the

professor or to censor the reading list or

related class discussion.

Example 2: A group of male students

repeatedly targets a female student for

harassment during the bus ride home

from school, including making explicit

sexual comments about her body,

passing around drawings that depict her

engaging in sexual conduct, and, on

several occasions, attempting to follow

her home off the bus. The female

student and her parents complain to the

principal that the male students’

conduct has created a hostile

environment for girls on the bus and

that they fear for their daughter’s safety.

What must the school do in response?

Answer: Threatening and intimidating

actions targeted at a particular student

or group of students, even though they

contain elements of speech, are not

protected by the First Amendment. The

school must take reasonable and

appropriate actions against the students,

including disciplinary action if

necessary, to remedy the hostile

environment and prevent future

harassment.

Footnotes

1. This Guidance does not address sexual

harassment of employees, although that

conduct may be prohibited by Title IX. If

employees bring sexual harassment claims

under Title IX, case law applicable to sexual

harassment in the workplace under Title VII

of the Civil Rights Act of 1964, 42 U.S.C.

2000e–2(a), and Equal Employment

Opportunity Commission (EEOC) guidelines

will apply. See 28 CFR 42.604 (Procedures

for Complaints of Employment

Discrimination Filed Against Recipients of

Federal Financial Assistance).

2. 20 U.S.C. 1681 et seq., as amended; 34

CFR 106.1, 106.31(a)(b). In analyzing sexual

harassment claims, the Department also

applies, as appropriate to the educational

context, many of the legal principles

applicable to sexual harassment in the

workplace developed under Title VII. See

Franklin v. Gwinnett County Public Schools,

503 U.S. 60, 75 (1992) (applying Title VII

principles in determining that a student was

entitled to protection from sexual harassment

by a teacher in school under Title IX);

Kinman v. Omaha Public School Dist., 94

F.3d 463, 469 (8th Cir. 1996) (applying Title

VII principles in determining that a student

was entitled to protection from hostile

environment sexual harassment by a teacher

in school under Title IX); Doe v. Claiborne

County, 1996 WL 734583, *19 (6th Cir.

December 26, 1996) (holding in a case

involving allegations of hostile environment

sexual harassment of a student by a teacher

that Title VII agency principles apply to

sexual harassment cases brought under Title

IX); Murray v. New York University College

of Dentistry, 57 F.3d 243, 249 (2nd Cir. 1995)

(while finding notice lacking, court applied

Title VII principles in assuming a Title IX

cause of action for sexual harassment of a

medical student by a patient visiting the

school clinic); Doe v. Petaluma City School

Dist., 830 F.Supp. 1560, 1571–72 (N.D. Cal.

1993) (applying Title VII principles in

determining that if school had notice of peer

sexual harassment and failed to take

appropriate corrective action, school liable

under Title IX), rev’d in part on other

grounds, 54 F.3d 1447 (9th Cir. 1995); Kadiki

v. Virginia Commonwealth University, 892

F.Supp. 746, 749 (E.D. Va. 1995) (in Title IX

case involving allegations of both quid pro

quo and hostile environment sexual

harassment, court indicated that Title VII

standards should be applied).

In addition, many of the principles

applicable to racial harassment under Title

VI of the Civil Rights Act of 1964, 42 U.S.C.

2000d et seq., and Title VII also apply to

sexual harassment under Title IX. Indeed,

Title IX was modeled on Title VI, Cannon v.

University of Chicago, 441 U.S. 677, 694

(1979). For information on racial harassment,

see the Department’s Notice of Investigative

Guidance for Racial Harassment, 59 FR 11448

(1994).

3. Consistent with Supreme Court

decisions, see Franklin, 503 U.S. at 75

(expressly ruling that the sexual harassment

of a student by a teacher violates Title IX),

the Department has interpreted Title IX as

prohibiting sexual harassment for over a

decade. Kinman, 94 F.3d at 469 (Title IX

prohibits hostile environment sexual

harassment of student by teacher). Moreover,

it has been OCR’s longstanding practice to

apply Title IX to peer harassment. See also

Bosley v. Kearney R–1 School Dist., 904

F.Supp. 1006, 1023 (W.D. Mo. 1995); Doe v.

Petaluma City School Dist., Plaintiff’s Motion

for Reconsideration Granted, 1996 WL

432298 (N.D. Cal. July 22, 1996) (reaffirming

Title IX liability for peer harassment if the

school knows of the hostile environment but

fails to take remedial action); Burrow v.

Postville Community School District, 929

F.Supp. 1193, 1205 (N.D. Iowa 1996) (student

may bring Title IX cause of action against a

school for its knowing failure to take

appropriate remedial action in response to

the hostile environment created by students

at the school); Oona R.–S. v. Santa Rosa City

Schools, 890 F.Supp. 1452 (N.D. Cal. 1995);

Davis v. Monroe County Bd. of Education, 74

F.3d 1186, 1193 (11th Cir. 1996) (as Title VII

is violated if a sexually hostile working

environment is created by co-workers and

tolerated by the employer, Title IX is violated

if a sexually hostile educational environment

is created by a fellow student or students and

the supervising authorities knowingly failed

to act to eliminate the harassment), vacated,

reh’g granted, 91 F.3d 1418 (11th Cir. 1996);

cf. Murray, 57 F.3d at 249 (while court finds

no notice to school, assumes a Title IX cause

of action for sexual harassment of a medical

student by a patient visiting school clinic).

But see note 27. Of course, OCR has

interpreted Title IX as prohibiting quid pro

quo harassment of students for many years.

See Alexander v. Yale University, 459

F.Supp. 1, 4 (D.Conn. 1977), aff’d, 631 F.2d

178 (2nd Cir. 1980).

4. The term ‘‘employee’’ refers to

employees and agents of a school. This

includes persons with whom the school

contracts to provide services for the school.

See Brown v. Hot, Sexy, and Safer

Productions, Inc., 68 F.3d 525 (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, while the standards applicable

to peer sexual harassment are generally

applicable to claims of student-on-student

harassment, schools will be liable for the

sexual harassment of one student by another

student under the standards applicable to

employee-on-student harassment if a student

engages in sexual harassment as an agent or

employee of a school. For instance, a school

would be liable under the standards

applicable to quid pro quo harassment if a

student teaching assistant, who has been

given the authority to assign grades, requires

a student in his or her class to submit to

sexual advances in order to obtain a certain

grade in the class.

5. Alexander, 459 F.Supp. at 4 (a claim that

academic advancement was conditioned

upon submission to sexual demands

constitutes a claim of sex discrimination in

education); Kadiki, 892 F.Supp. at 752

(reexamination in a course conditioned on

college student’s agreeing to be spanked

should she not attain a certain grade may

constitute quid pro quo harassment); see also

Karibian v. Columbia University, 14 F.3d

773, 777–79 (2nd Cir. 1994) (Title VII case).

6. See e.g., Franklin, 503 U.S. at 63

(conduct of a sexual nature found to support

a sexual harassment claim under Title IX
Federal Register / Vol. 62, No. 49 / Thursday, March 13, 1997 / Notices 12047

included kissing, sexual intercourse); Meritor

Savings Bank FSB v. Vinson, 477 U.S. 57,

60–61 (1986) (demands for sexual favors,

sexual advances, fondling, indecent

exposure, sexual intercourse, rape sufficient

to raise hostile environment claim under

Title VII); Harris v. Forklift Systems, Inc., 510

U.S. 17, 114 S.Ct. 367 (1993) (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 a 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, 903–4 (1st Cir. 1988) (sexually

derogatory comments, posting of sexually

explicit drawing of plaintiff, sexual advances

may support sexual harassment claim);

Kadiki, 892 F.Supp. at 751 (professor’s

spanking of a 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. #1, 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.)

7. Davis, 74 F.3d at 1194, vacated, reh’g

granted; Doe v. Petaluma, 830 F.Supp. at

1571–73; Moire v. Temple University School

of Medicine, 613 F.Supp. 1360, 1366 (E.D. Pa.

1985), aff’d mem., 800 F.2d 1136 (3d Cir.

1986); see also Vinson, 477 U.S. at 67;

Lipsett, 864 F.2d at 901; Racial Harassment

Guidance, 59 FR 11449–50. But see note 27.

8. 34 CFR 106.8(b).

9. 20 U.S.C. 1687 (codification of Title IX

portion of the Civil Rights Restoration Act of

1987).

10. See also Shoreline School Dist., OCR

Case No. 10–92–1002 (a teacher’s patting

student on 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 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.)

11. Cf. John Does 1 v. Covington County

School Bd., 884 F.Supp. 462, 464–65 (M.D.

Ala. 1995) (male students alleging that

teacher sexually harassed and abused them

stated cause of action under Title IX).

12. Title IX and the regulations

implementing it prohibit discrimination ‘‘on

the basis of sex;’’ they do not restrict sexual

harassment to those circumstances in which

the harasser only harasses members of the

opposite sex in incidents involving either

quid pro quo or hostile environment sexual

harassment. See 34 CFR 106.31. In order for

hostile environment harassment to be

actionable under Title IX, it must create a

hostile or abusive environment. This can

occur when a student or employee harasses

a member of the same sex. See Kinman, 94

F.3d at 468 (female student’s alleging sexual

harassment by female teacher sufficient to

raise a claim under Title IX); Doe v.

Petaluma, 830 F.Supp. at 1564–65, 1575

(female junior high school student alleging

sexual harassment by other students,

including both boys and girls, sufficient to

raise claim under Title IX); John Does 1, 884

F.Supp. at 465 (same as to male students’

allegations of sexual harassment and abuse

by male teacher.) It can also occur in certain

situations if the harassment is directed at

students of both sexes. Chiapuzo v. BLT

Operating Co., 826 F.Supp. 1334 (D. Wyo.

1993) (court found that such harassment

could 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 gender-driven in that

they were made with an intent to demean

each member of the couple because of his or

her respective sex. 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).

13. Nashoba Regional High School, OCR

Case No. 01–92–1397. In Conejo Valley

School Dist., OCR Case No. 09–93–1305,

female students allegedly taunted another

female student about engaging in sexual

activity; OCR found that the alleged

comments were sexually explicit and, if true,

would be sufficiently severe, persistent, and

pervasive to create a hostile environment.

14. Williamson v. A.G. Edwards & Sons,

Inc., 876 F.2d 69 (8th Cir. 1989, cert. denied

493 U.S. 1089 (1990) (Title VII case);

DeSantis v. Pacific Tel. & Tel. Co., Inc., 608

F.2d 327 (9th Cir. 1979) (same); Blum v. Gulf

Oil Corp., 597 F.2d 936 (5th Cir. 1979)

(same).

15. See Nabozny v. Podlesny, 92 F.3d 446

(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

case in which school district officials

allegedly 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).

16. See Vinson, 477 U.S. at 65–66; Harris,

114 S.Ct. at 370–371; see also Hicks v. Gates

Rubber Co., 833 F.2d 1406, 1416 (10th Cir.

1987) (Title VII case); McKinney v. Dole, 765

F.2d 1129, 1138 (D.C. Cir. 1985) (Title VII

case; physical, but non-sexual, assault could

be sex-based harassment if shown to be

unequal treatment that would not have taken

place but for the employee’s sex); Cline v.

General Electric Capital Auto Lease, Inc., 757

F.Supp. 923 (N.D. Ill. 1991) (Title VII case).

17. See Harris, 114 S.Ct. at 370–371;

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); 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.

18. The Supreme Court has ruled that

agency principles apply in determining an

employer’s liability under Title VII for the

harassment of its employees by supervisors.

See Vinson, 477 U.S. at 72. These principles

would govern in Title IX cases involving

employees who are harassed by their

supervisors. See 28 CFR 42.604 (regulations

providing for handling employment

discrimination complaints by Federal

agencies; requiring agencies to apply Title VII

law if applicable). These same principles

should govern the liability of educational

institutions under Title IX for the harassment

of students by teachers and other school

employees in positions of authority. See

Franklin, 503 U.S. at 75.

19. The Supreme Court in Vinson did not

alter the standard developed in the lower

Federal courts whereby an institution is

absolutely liable for quid pro quo sexual

harassment whether or not it knew, should

have known, or approved of the harassment

at issue. 477 U.S. at 70–71; see also Lipsett,

864 F.2d at 901; EEOC Notice N–915–050,

March 1990, Policy Guidance on Current

Issues of Sexual Harassment, at p. 21. This

standard applies in the school context as

well. Kadiki, 892 F.Supp. at 752 (for the

purposes of quid pro quo harassment of a

student, professor is in similar position as

workplace supervisor).

20. Kadiki, 892 F.Supp. at 754–755; cf.

Martin v. Cavalier Hotel Corp., 48 F.3d 1343,

1351 n.3 (4th Cir. 1995) (Title VII case);

Karibian, 14 F.3d at 777–78; Henson v. City

of Dundee, 682 F.2d 897, 910 (11th Cir. 1982)

(Title VII case).
12048 Federal Register / Vol. 62, No. 49 / Thursday, March 13, 1997 / Notices

21. See note 4.

22. Restatement (Second) Agency

§ 219(2)(d); Martin, 48 F.3d at 1352 (finding

an employer liable under Title VII for sexual

harassment of an employee in case in which

the Manager used his apparent authority to

commit the harassment; the Manager was

delegated full authority to hire, fire, promote,

and discipline employees and used the

authority to accomplish the harassment; and

company policy required employees to report

harassment to the Manager with no other

grievance process made available to them).

23. See Restatement (Second) of Agency

§ 219(2)(d); EEOC Policy Guidance on

Current Issues of Sexual Harassment at p. 28;

Karibian, 14 F.3d at 780; Hirschfeld v. New

Mexico Corrections Dept., 916 F.2d 572, 579

(10th Cir. 1990) (Title VII case); Martin, 48

F.3d at 1352. But see Rosa H v. San Elizario

Ind. School Dist., 1997 U.S. App. LEXIS 2780

(5th Cir. Feb. 17, 1997). In San Elizario the

Fifth Circuit reversed a jury finding that a

school district was liable under Title IX for

a hostile environment created by the school’s

male karate instructor, who repeatedly

initiated sexual intercourse with a fifteenyear-old female karate student. The court

held, contrary to OCR policy, that a school

could not be found liable under Title IX

pursuant to agency principles.

However, language in this and previous

decisions indicates that Title IX law is

evolving in the Fifth Circuit. When OCR

investigates complaints involving schools in

the Fifth Circuit (Texas, Louisiana, and

Mississippi), it will in each case determine

and follow the current applicable law. In

light of the evolving case law in the Fifth

Circuit, adhering to the standards in the

Guidance may be the best way for schools in

these States to ensure compliance with the

requirements of Title IX. School personnel

should also consider whether State, local, or

other Federal authority affects their

obligations in these areas.

24. Karibian, 14 F.3d at 780 (employer

would be liable for hostile environment

harassment in case in which allegations were

that a supervisor coerced employee into a

sexual relationship by, among other things,

telling her she ‘‘ ‘owed him’ for all he was

doing for her as her supervisor’’); Sparks v.

Pilot Freight Carriers, Inc., 830 F.2d 1554,

1558–60 (11th Cir. 1987) (Title VII case

holding employer liable for sexually hostile

environment created by supervisor who

repeatedly reminded the harassed employee

that he could fire her if she did not comply

with his sexual advances).

25. Cf. Karibian, 14 F.3d at 780.

26. Id.

27. The overwhelming majority of courts

that have considered the issue of sexually

hostile environments caused by peers have

indicated that schools may be liable under

Title IX for their knowing failure to take

appropriate actions to remedy the hostile

environment. See note 7 and peer hostile

environment cases cited in note 3. However,

one Federal Circuit Court of Appeals

decision, Rowinsky v. Bryan Independent

School Dist., 80 F.3d 1006 (5th Cir. 1996),

cert. denied, 117 S.Ct. 165 (1996), has held

to the contrary. In that case, over a strong

dissent, the court rejected the authority of

other Federal courts and OCR’s longstanding

construction of Title IX and held that a

school district is not liable under Title IX for

peer harassment unless ‘‘the school district

itself directly discriminated based on sex,’’

i.e., the school responded differently to

sexual harassment or similar claims of girls

versus boys. For cases specifically rejecting

the Rowinsky interpretation, see e.g., Doe v.

Petaluma, Plaintiff’s Motion for

Reconsideration Granted, 1996 WL 432298

*6 (N.D. Cal. 1996); Burrow v. Postville

Community School Dist., 929 F.Supp. at

1193.

OCR believes that the Rowinsky decision

misinterprets Title IX. As explained in this

Guidance, Title IX does not make a school

responsible for the actions of the harassing

student, but rather for its own discrimination

in failing to take immediate and appropriate

steps to remedy the hostile environment once

a school official knows about it. If a student

is sexually harassed by a fellow student, and

a school official knows about it, but does not

stop it, the school is permitting an

atmosphere of sexual discrimination to

permeate the educational program. The

school is liable for its own action, or lack of

action, in response to this discrimination.

Notably, Title VII cases that hold that

employers are responsible for remedying

hostile environment harassment of one

worker by a co-worker apply this same

standard. See, e.g., Ellison v. Brady, 924 F.2d

at 881–82; Hall v. Gus Construction Co., 842

F.2d 1010 (8th Cir. 1988); Hunter v. AllisChalmers Corp., 797 F.2d 1417 (7th Cir.

1986); Snell v. Suffolk, 782 F.2d 1094 (2nd

Cir. 1986); Robinson v. Jacksonville

Shipyards, 760 F.Supp. 1486 (M.D. Fla.

1991).

Language in subsequent decisions

indicates that Title IX law is evolving in the

Fifth Circuit. When OCR investigates

complaints involving schools in States in the

Fifth Circuit (Texas, Louisiana, and

Mississippi), it will in each case determine

and follow the current applicable law.

However, the existence of Fifth Circuit

decisions that are inconsistent with OCR

policy does not prohibit schools in these

States from following the Guidance. In order

to ensure students a safe and

nondiscriminatory educational environment,

the better practice is for these schools to

follow the Guidance. Thus, schools should

take prompt corrective action to address peer

harassment of which they knew or should

have known. Indeed, following the Guidance

may be the safest way for schools in these

States to ensure compliance with the

requirements of Title IX.

28. See Restatement (Second) of Agency

§ 219(2)(b).

29. As with peer harassment by its own

students, a school’s liability for the

harassment of its students by third parties is

based on its obligation to provide an

environment free of discrimination. Murray,

57 F.3d at 250 (student participating in

university dental clinic providing services to

the public alleged harassment by a patient;

while the court ruled in defendant’s favor

because of lack of notice, it considered such

a claim actionable under Title IX); Racial

Harassment Investigative Guidance, 59 FR

11450 (referring to harassment by

neighborhood teenagers, guest speaker, and

parents). See, e.g., 29 CFR 1604.11(e); Sparks

v. Regional Medical Ctr., 792 F.Supp. 735,

738 n.1 (N.D. Ala. 1992) (Title VII case);

Powell v. Las Vegas Hilton Corp., 841

F.Supp. 1024, 1027–28 (D. Nev. 1992) (Title

VII case); Magnuson v. Peak Technical

Servs., Inc., 808 F.Supp. 500, 512–13 (E.D.

Va. 1992) (Title VII case); EEOC v. Sage

Realty Corp., 507 F.Supp. 599, 611 (S.D.N.Y.

1981) (Title VII case); cf. Dornhecker v.

Malibu Grand Prix Corp., 828 F.2d 307 (5th

Cir. 1987) (assuming Title VII required

employer to respond appropriately to sexual

harassment of an employee by a contractor,

but finding employer’s response sufficient).

See also Restatement (Second) of Agency

§ 219(2)(b).

30. 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. Cf. Danna v. New York

Telephone Co., 752 F.Supp. 594, 611

(S.D.N.Y. 1990) (telephone company in

violation of Title VII for not taking sufficient

action to protect its own employee from

sexually explicit graffiti at the airport where

she was assigned to work, e.g., contacting

airport management to see what remedial

measures could be taken).

31. 34 CFR 106.8(b) and 106.9.

32. See Racial Harassment Investigative

Guidance, 59 FR 11450; Murray, 57 F.3d at

249 (an employer is liable for the harassment

of co-workers if the employer ‘‘either

provided no reasonable avenue for complaint

or knew of the harassment but did nothing

about it’’.

33. EEOC Policy Guidance at p. 25 (‘‘* * *

in the absence of a strong, widely

disseminated, and consistently enforced

employer policy against sexual harassment,

and an effective complaint procedure,

employees could reasonably believe that a

harassing supervisor’s actions will be

ignored, tolerated, or even condoned by

upper management.’’)

34. 34 CFR 106.8(b).

35. If OCR finds a violation of Title IX, it

will seek to obtain an agreement with the

school to voluntarily correct the violation.

The agreement will set out the specific steps

the school will take and provide for

monitoring by OCR to ensure that the school

complies with the agreement. Schools should

note that the Supreme Court has held that

monetary damages are available as a remedy

in private lawsuits brought to redress

violations of Title IX. Franklin, 503 U.S. at

76. Of course, a school’s immediate and

appropriate remedial actions are relevant in

determining the nature and extent of the

damages suffered by a plaintiff.

36. Henson, 682 F.2d at 903 (Title VII

case).

37. [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
Federal Register / Vol. 62, No. 49 / Thursday, March 13, 1997 / Notices 12049

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. Vinson, 477 U.S. at 68.

38. Lipsett, 864 F.2d at 898 (while, in some

instances, a person may have 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, 752 F.Supp. at 612 (despite

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;

cursing and dirty jokes by 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.’’).

39. Reed v. Shepard, 939 F.2d 484, 486–

87, 491–92 (7th Cir. 1991) (no harassment

found under Title VII in case in which female

employee not only tolerated, but also

participated in and instigated the suggestive

joking activities about which she was now

complaining); Weinsheimer v. Rockwell Int’l

Corp., 794 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.

40. The school bears the burden of

rebutting the presumption.

41. Of course, nothing in Title IX would

prohibit a school from implementing policies

prohibiting sexual conduct or sexual

relationships between students and adult

employees.

42. See note 41.

43. 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.’’ 114 S.Ct.

at 370.

44. The Supreme Court used a ‘‘reasonable

person’’ standard in Harris, 114 S.Ct. at 370–

71 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 women’’

standard to sexual harassment), and has been

adapted to sexual harassment in education,

Davis, 74 F.3d at 1126 (relying on Harris to

adopt an objective, reasonable person

standard), vacated, reh’g granted; 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); Racial Harassment

Guidance, 59 FR 11452 (the standard must

take into account the characteristics and

circumstances of victims on a case-by-case

basis, particularly the victim’s race and age).

45. Harris, 114 S.Ct. at 371; See Racial

Harassment Guidance, 59 FR 11449 and

11452; Brock v. United States, 64 F.3d 1421,

1423 (9th Cir. 1995) (Title VII case); Simon

v. Morehouse Sch. of Medicine, 908 F.Supp.

959, 969–970 (N.D. Ga. 1995) (Title VII case);

Al-Dabbagh v. Greenpeace, Inc., 873 F.Supp.

1105, 1111–12 (N.D. Ill. 1994) (Title VII case);

Watts v. N.Y.C. Police Dept., 724 F.Supp. 99,

104 (S.D.N.Y. 1989) (Title VII case).

46. Davis, 74 F.3d at 1126 (no Title IX

violation unless the conduct has ‘‘actually

altered the conditions of [the student’s]

learning environment’’), vacated, reh’g

granted; Lipsett, 864 F.2d at 898 (‘‘ altered’’

the educational environment); Patricia H.,

830 F. Supp. at 1297 (sexual harassment

could be found where conduct interfered

with student’s ability to learn); see also

Andrews, 895 F.2d at 1482 (Title VII case).

47. Harris, 114 S.Ct. at 371.

48. See e.g., 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 services, so no hostile environment).

49. Doe v. Petaluma, 830 F. Supp. at 1566.

50. See Harris, 114 S.Ct. at 371, in which

the Court held 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.

51. See Modesto City Schools, OCR Case

No. 09–93–1391 (evidence showed that

several girls were afraid to go to school

because of the harassment).

52. Summerfield Schools, OCR Case No.

15–92–1029.

53. See Waltman v. Int’l Paper Co., 875

F.2d 468, 477 (5th Cir. 1989) (Title VII case);

see also Hall, 842 F.2d at 1015 (evidence of

sexual harassment directed at others is

relevant to show hostile environment under

Title VII); Racial Harassment Investigative

Guidance, 59 FR 11453.

54. See, e.g., Andrews, 895 F.2d at 1484

(‘‘Harassment is pervasive when ‘incidents of

harassment occur either in concert or with

regularity’.’’); Moylan v. Maries County, 792

F.2d 746, 749 (8th Cir. 1986) (Title VII case);

Downes v. Federal Aviation Administration,

775 F.2d 288, 293 (D.C. Cir. 1985) (same); cf.

Scott v. Sears, Roebuck and Co., 798 F.2d

210, 214 (7th Cir. 1986) (Title VII case;

conduct was not pervasive or debilitating).

55. The U.S. Equal Employment

Opportunity Commission (EEOC) has stated:

‘‘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, p. 17. See also Barrett v.

Omaha National Bank, 584 F. Supp. 22, 30

(D. Neb. 1983), aff’d, 726 F.2d 424 (8th Cir.

1984) (hostile environment 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 offensive manner while they

were inside a vehicle from which she could

not escape).

56. See also Ursuline College, OCR Case

No. 05–91–2068 (A single incident of

comments on a male student’s muscles

arguably not sexual; however, assuming they

were, not severe enough to create a hostile

environment).

57. Patricia H., 830 F.Supp. at 1297 (’’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 (5th Cir. 1994), cert. denied, 115 S.Ct. 70

(1994) (Sec. 1983 case; in finding that a

sexual relationship between a high school

teacher and a student was unlawful, court

considered the influence that the teacher had

over the student by virtue of his position of

authority).

58. See, e.g., McKinney, 765 F.2d at 1138–

40; Robinson, 760 F. Supp. at 1522.

59. Cf. Patricia H., 830 F. Supp. at 1297.

60. See also Barrett, 584 F. Supp. at 24

(harassment occurring in a car from which

the plaintiff could not escape was deemed

particularly severe).

61. See also Hall, 842 F.2d at 1015

(incidents of sexual harassment directed at

other employees); Hicks, 833 F.2d at 1415–

16 (same). Cf. Midwest City-Del City Public

Schools, OCR Case No. 06–92–1012 (finding

of racially hostile environment based in part

on several racial incidents at school shortly

before incidents in complaint, a number of

which involved the same student involved in

the complaint).

62. See note 17. 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;
12050 Federal Register / Vol. 62, No. 49 / Thursday, March 13, 1997 / Notices

Jefferies v. Harris Community Action Ass’n,

615 F.2d 1025, 1032 (5th Cir. 1980) (Title VII

case).

63. In addition, even if there is no notice,

schools may be liable for sexual harassment.

See previous discussions of liability in

situations involving quid pro quo harassment

and hostile environment sexual harassment

by employees in situations in which the

employee acted with apparent authority or

was aided in carrying out the harassment of

students by his or her position of authority

with the school.

64. See Ellison v. Brady, 924 F.2d 872, 881

(9th Cir. 1991), quoting EEOC v. Hacienda

Hotel, 881 F.2d 1504, 1515–1516 (9th Cir.

1989) (Title VII cases); Swentek v. USAir, 830

F.2d 552, 558 (4th Cir. 1987), quoting Katz

v. Dole, 709 F.2d at 255 (Title VII cases).

But see Rosa H. v. San Elizario Indep.

School Dist., 1997 U.S. App. LEXIS 2780 (5th

Cir. Feb. 17, 1997) and note 23. In San

Elizario, the Fifth Circuit held, among other

things, that liability for hostile environment

harassment cannot attach if the school has

only constructive notice of the harassment.

See note 23.

65. Whether an employee is an agent or

responsible school 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

authority actually given to the employee and

the age of the student.

With respect to the notice provisions

applicable to schools under Title IX, one

Federal Circuit Court of Appeals decision,

Canutillo Indep. School Dist. v. Leija, 101

F.3d 393, 398–400 (5th Cir. 1996), has held,

contrary to OCR policy, that a school district

was not liable in a case in which one of its

teachers sexually molested a second grade

student, because the student and her mother

only reported the harassment to her

homeroom teacher. Notwithstanding that a

school handbook instructed students and

parents to report complaints to the child’s

primary or homeroom teacher, the court held

that notice must be given to ‘‘someone with

authority to take remedial action.’’ See also

Rosa H. v. San Elizario Indep. School Dist.,

1997 U.S. App. LEXIS 2780 (5th Cir. Feb. 17,

1997), and notes 23 and 64. In San Elizario,

the Fifth Circuit held, among other things,

that although the fifteen-year-old student,

whose karate instructor had repeatedly

initiated sexual intercourse, ‘‘was subject to

discrimination on the basis of sex,’’ a school

district is only liable if an employee who has

been invested by the school board with

supervisory power over the offending

employee actually knew of the abuse, had the

power to end the abuse, and failed to do so.

Based on these and other decisions, Title

IX law is evolving in the Fifth Circuit. When

OCR investigates complaints involving

schools in States in the Fifth Circuit (Texas,

Louisiana, and Mississippi), it will in each

case determine and follow the current

applicable law. However, the existence of

Fifth Circuit decisions that are inconsistent

with OCR policy does not prohibit schools in

these States from following the Guidance. In

order to ensure students a safe and

nondiscriminatory educational environment,

it is the better practice for these schools to

follow the Guidance. For example, the better

practice is for schools to ensure that teachers

and other personnel recognize and report

sexual harassment of students to the

appropriate school staff so that schools can

take prompt corrective action and ensure a

safe educational environment. In addition,

the Guidance makes clear that providing

students with several avenues to report

sexual harassment is a very helpful means for

addressing and preventing sexually harassing

conduct in the first place. Schools in States

in the Fifth Circuit should also consider

whether State, local or other Federal laws

may affect their responsibilities in this

regard.

66. Racial Harassment Guidance, 59 FR

11450 (discussing how a school may receive

notice).

67. See Yates v. Avco Corp., 819 F.2d 630,

634–36 (6th Cir. 1987) (Title VII case); Katz

v. Dole, 709 F.2d 251, 256 (4th Cir. 1983)

(same); See also Racial Harassment

Investigative Guidance, 59 FR 11450.

68. Cf. Katz, 709 F.2d at 256 (the employer

‘‘should have been aware of the * * *

problem both because of its pervasive

character and because of Katz’ 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 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, 57 F.3d at

250–51 (that other students knew of the

conduct was not enough to charge the school

with notice, particularly in case in which

these students may not have been aware that

the conduct was offensive or abusive).

69. Schools have an obligation to ensure

that the educational environment is free of

discrimination and cannot fulfill this

obligation without determining if sexual

harassment complaints have merit.

70. 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 may still 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.

71. Cf. Bundy v. Jackson, 641 F.2d 934, 947

(D.C. Cir. 1981) (employers should take

corrective and preventive measures under

Title VII); accord, Jones v. Flagship Int’l, 793

F.2d 714, 719–720 (5th Cir. 1986) (employer

should take prompt remedial action under

Title VII). Racial Harassment Investigative

Guidance, 59 FR 11450.

72. Waltman v. Int’l Paper Co., 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; employer arranged for victim

to no longer work with alleged harasser).

73. Intlekofer v. Turnage, 973 F.2d 773 (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).

74. Offering assistance in changing living

arrangements is one of the actions required

of colleges and universities by the Campus

Security Act in cases of rape and sexual

assault. See 20 U.S.C. 1092(f).

75. See note 30.

76. University of California at Santa Cruz,

OCR Case No. 09–93–2141 (extensive

individual and group counseling); Eden

Prairie Schools, Dist. #272, OCR Case No. 05–

92–1174 (counseling).

77. Even if the harassment stops without

the school’s involvement, the school may

still need to take steps to prevent or deter any

future harassment—to inform the school

community that harassment will not be

tolerated. Fuller v. City of Oakland, 47 F.3d

1522, 1528–29 (9th Cir. 1995).

78. 34 CFR 106.8(b) and 106.71,

incorporating by reference 34 CFR 100.7(e).

Title IX prohibits intimidation, threats,

coercion, or discrimination against any

individual for the purpose of interfering with

any right or privilege secured by Title IX.

79. Tacoma School Dist. No. 10, OCR Case

No. 10–94–1079 (due to the large number of

students harassed by an employee, the

extended period of time over which the

harassment occurred, and the failure of

several of the students to report the

harassment, school committed as part of

corrective action plan to providing training

for students); Los Medanos College, OCR Case

No. 09–84–2092 (as part of corrective action

plan, school committed to providing sexual

harassment seminar for campus employees);

Sacramento City Unified School Dist., OCR

Case No. 09–83–1063 (same as to workshops

for management and administrative

personnel, in-service training for nonmanagement personnel).

80. 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
Federal Register / Vol. 62, No. 49 / Thursday, March 13, 1997 / Notices 12051

FERPA to override any federally

protected due process rights of a school

employee accused of harassment.

81. 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.

82. Fenton Community High School

Dist. # 100, OCR Case 05–92–1104.

83. While a school is required to have

a grievance procedure under which

complaints of sex discrimination

(including sexual harassment) can be

filed, the same procedure may also be

used to address other forms of

discrimination.

84. See Vinson, 477 U.S. at 72–73.

85. It is the Department’s current

position under the Family Educational

Rights and Privacy Act (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 80. If the alleged harasser is a

teacher, administrator, or other nonstudent employee, FERPA would not

limit the school’s ability to inform the

complainant of any disciplinary action

taken.

86. The section in the Guidance on

‘‘Recipient’s Response’’ provides

examples of reasonable and appropriate

corrective action.

87. 34 CFR 106.8(a).

88. Id.

89. See Vinson, 477 U.S. at 72–73.

90. University of California, Santa

Cruz, OCR Case No. 09–93–2141;

Sonoma State University, 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.

91. For example, in Cape Cod

Community College, OCR Case No. 01–

93–2047, the College was found to have

violated Title IX in part because the

person identified by the school as the

Title IX coordinator was unfamiliar with

Title IX, had no training, and did not

even realize he was the coordinator.

92. 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.

93. Academy School Dist. No. 20,

OCR Case No. 08–93–1023 (school’s

response determined to be insufficient

in 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).

94. Cf. EEOC v. Board of Governors of

State Colleges and Universities, 957

F.2d 424 (7th Cir.) (Title VII case), cert.

denied, 113 S.Ct. 299 (1992); Johnson v.

Palma, 931 F.2d 203 (2nd Cir. 1991)

(same).

95. The First Amendment applies to

entities and individuals that are State

actors. The receipt of Federal funds by

private schools does not directly subject

those schools to the U.S. Constitution.

See Rendell-Baker v. Kohn, 457 U.S.

830, 840 (1982). However, all actions

taken by OCR must comport with First

Amendment principles, even in cases

involving private schools that are not

directly subject to the First Amendment.

96. See, e.g., George Mason

University, OCR Case No. 03–94–2086

(law professor’s use of a racially

derogatory word, as part of an

instructional hypothetical regarding

verbal torts, did not constitute racial

harassment); Portland School Dist. 1J,

OCR Case No. 10–94–1117 (reading

teacher’s choice to substitute a less

offensive term for a racial slur when

reading an historical novel aloud in

class constituted an academic decision

on presentation of curriculum, not racial

harassment).

97. See Iota Xi Chapter of Sigma Chi

Fraternity v. George Mason University,

993 F.2d 386 (4th Cir. 1993) (fraternity

skit in which white male student

dressed as an offensive caricature of a

black female constituted student

expression).

98. See Florida Agricultural and

Mechanical University, OCR Case No.

04–92–2054 (no discrimination in case

in which campus newspaper, which

welcomed individual opinions of all

sorts, printed article expressing one

student’s viewpoint on white students

on campus).

99. Tinker v. Des Moines Indep.

Community Sch. Dist., 393 U.S. 503, 506

(1969) (neither students nor teachers

shed their constitutional rights to

freedom of expression at the

schoolhouse gates); Cf. Cohen v. San

Bernardino Valley College, (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).

100. See, e.g., University of Illinois,

OCR Case No. 05–94–2104 (fact that

university’s use of Native American

symbols was offensive to some Native

American students and employees was

not dispositive, in and of itself, in

assessing a racially hostile environment

claim under Title VI).

101. See Vinson, 477 U.S. at 67 (the

‘‘mere utterance of an ethnic or racial

epithet which engenders offensive

feelings in an employee’’ would not

affect the conditions of employment to

a sufficient degree to violate Title VII),

quoting Henson, 682 F.2d at 904; cf.

R.A.V. v. City of St. Paul, 505 U.S. 377,

389 (1992) (citing with approval EEOC’s

sexual harassment guidelines).

102. Compare Bethel School Dist. No.

403 v. Fraser, 478 U.S. 675, 685 (1986)

(Court upheld discipline of high school

student for making lewd speech to

student assembly, noting that ‘‘[t]he

undoubted freedom to advocate

unpopular and controversial issues in

schools and classrooms 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).

[FR Doc. 97–6373 Filed 3–12–97; 8:45 am]

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