[Federal Register Volume 61, Number 194 (Friday, October 4, 1996)]
[Notices]
[Pages 52172-52183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25283]



[[Page 52171]]


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Part III





Department of Education





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Sexual Harassment Guidance: Harassment of Students by School Employees; 
Notice

  Federal Register / Vol. 61, No. 194 /  Friday, October 4, 1996 /  
Notices  

[[Page 52172]]



DEPARTMENT OF EDUCATION


Office for Civil Rights Sexual Harassment Guidance: Harassment of 
Students by School Employees

ACTION: Request for comments.

-----------------------------------------------------------------------

SUMMARY: The Assistant Secretary for Civil Rights issues a draft 
document entitled ``Sexual Harassment Guidance: Harassment of Students 
by School Employees'' (Guidance).
    The Guidance provides educational institutions with information 
regarding the standards used by the Office for Civil Rights (OCR) to 
investigate and resolve cases involving claims that sexual harassment 
of students by employees has created a hostile environment in violation 
of Title IX of the Education Amendments of 1972. Title IX prohibits 
gender discrimination in education programs that receive Federal 
financial assistance.
    The Assistant Secretary solicits from all interested parties 
written comments on the clarity and completeness of the Guidance, which 
is appended to this notice as Appendix One.

DATES: Comments on the Guidance must be received on or before November 
18, 1996.

ADDRESSES: All comments concerning the Guidance should be addressed to 
Howard I. Kallem, U.S. Department of Education, 600 Independence 
Avenue, S.W., Room 5414 Switzer Building, Washington, D.C. 20202-1174. 
Telephone: (202) 205-9641.

FOR FURTHER INFORMATION CONTACT: Howard I. Kallem. Telephone (202) 205-
9641. Individuals who use a telecommunications device for the deaf 
(TDD) may call the TDD number at (202) 205-9683 or 1-800-421-3481. 
Internet: Howard __K[email protected]

SUPPLEMENTARY INFORMATION: The purpose of the Guidance is to inform 
educational institutions that receive Federal financial assistance 
regarding the standards that OCR follows, and that the institutions 
should follow, when investigating allegations that Title IX has been 
violated because of sexual harassment of students by employees. 
Consistent with the Supreme Court's decision in Franklin v. Gwinnett 
County Public Schools, 503 U.S. 60 (1992) (holding that a student may 
sue a school district for damages based on sexual harassment by a 
teacher), OCR has applied Title IX to prohibit sexual harassment of 
students by school employees. The standards in the Guidance reflect 
OCR's longstanding nationwide practice and reflect well established 
legal principles developed under Title VII of the Civil Rights Act of 
1964, which prohibits gender discrimination in employment. The 
Department is accepting public comment on whether the Guidance in 
Appendix One is clear and complete.
    On August 16, 1996, the Assistant Secretary published a notice in 
the Federal Register (61 FR 42728) announcing the availability, upon 
request, of a document entitled ``Sexual Harassment Guidance: Peer 
Sexual Harassment'' and invited comments on the document. A copy of the 
Peer Harassment Guidance is appended to this notice as Appendix Two for 
the convenience of the readers of the Guidance issued today.
    Once the comments are assessed, OCR plans to publish a single 
document in the Federal Register combining the guidance found in 
Appendix One and Appendix Two.

Invitation to Comment

    Interested persons are invited to submit comments and 
recommendations on the clarity and completeness of the Guidance in 
Appendix One.
    All comments submitted in response to this notice will be available 
for public inspection, during and after the comment period, in Room 
5414, 330 C Street, S.W., Washington, D.C., between the hours of 8:30 
a.m. and 4:00 p.m., Monday through Friday of each week except Federal 
holidays.

    Dated: September 27, 1996.
Norma V. Cantu,
Assistant Secretary for Civil Rights.

Appendix One--Sexual Harassment Guidance: Harassment of Students by 
School Employees

    This guidance discusses the analysis that the Office for Civil 
Rights (OCR) follows, and that school districts, colleges, and other 
recipients of Federal funding (referred to in this guidance as 
``schools'') should use, when investigating allegations of sexual 
harassment of students in a school's educational program by a school's 
employees.1 This guidance is based on legal principles detailed in 
the endnotes accompanying the document.
    This guidance supplements and should be read in conjunction with 
OCR's policy guidance: ``Sexual Harassment Guidance: Peer Harassment,'' 
issued for comment on August 16, 1996 (Peer Harassment Guidance). Many 
of the issues discussed in the Peer Harassment Guidance are applicable 
to investigations of alleged harassment of students by a school's 
employees. Additional issues related to sexual harassment by employees 
are discussed below.

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 by a school employee is a form of prohibited sex 
discrimination in the following circumstances: 3

    Quid Pro Quo Harassment--A school employee explicitly or 
implicitly conditions a student's participation in an education 
program or school activity or bases an educational decision on the 
student's submission to unwelcome sexual advances, requests for 
sexual favors, or other verbal or physical conduct of a sexual 
nature.4 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 Harassment--Sexually harassing conduct by an 
employee (that can include unwelcome sexual advances, requests for 
sexual favors, and other verbal or physical conduct of a sexual 
nature 5) 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.6

    As discussed in the Peer Harassment Guidance, Title IX's 
prohibition of sexual harassment does not extend to nonsexual touching 
or other nonsexual conduct. For example, a high school athletic coach 
hugging a student who made a goal or a kindergarten teacher's consoling 
hug for a child with a skinned knee will not be considered sexual 
harassment.7 However, gender-based harassment--that is, acts of 
verbal or physical aggression, intimidation, or hostility based on sex 
but not involving sexual activity or language--is a form of 
discrimination prohibited by Title IX. Such incidents, combined with 
incidents of sexual harassment, could create a hostile environment, 
even if each by itself would not be sufficient.8
    As noted previously, many of the principles set out in the Peer 
Harassment Guidance apply to sexual harassment of students by school 
employees. Those principles are not repeated in this document. In 
particular, the principles in that Guidance relating to the 
applicability of Title IX, notice and grievance procedures, and the 
recipient's response to and prevention of sexual harassment all apply 
to sexual harassment of students by school employees.

Liability of a School for Sexual Harassment by its Employees

    A school's liability for sexual harassment by its employees is

[[Page 52173]]

determined by application of agency principles,9 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.10 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/agent.11
    A school will also be liable for hostile environment sexual 
harassment by its employees, 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 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); 12 or (2) was aided in 
carrying out the sexual harassment of students by his or her position 
of authority with the institution.13 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 
explicitly or 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.14
    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--or whether it would be reasonable for the 
student to believe they are, even if not (i.e., apparent authority)--
will depend on factors such as the authority actually given to the 
employee 15 (e.g., in some elementary schools, a cafeteria worker 
may have authority to impose discipline) and the age of the student 
(the younger the student, 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 if the school has notice of the 
harassment (i.e., knew or should have known of the harassment) but 
failed to take immediate and appropriate steps to remedy it.16 
Determining when a school has notice of sexual harassment is discussed 
in the Peer Harassment Guidance.17
    Finally, 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.18 If a school fails to do so, it will be liable 
under Title IX for the lack of grievance procedures, regardless of 
whether sexual harassment occurred. In addition, if OCR determines that 
harassment occurred, the school may be in violation of Title IX as to 
the harassment, under the agency principles previously discussed, 
because a school's failure to implement effective policies and 
procedures against discrimination may create apparent authority for 
school employees to harass students.19
    In all cases of alleged harassment by employees investigated by 
OCR, OCR will determine whether a school has taken immediate and 
appropriate steps reasonably calculated to end any harassment that has 
occurred, remedy its effects, and prevent harassment from occurring 
again. If the school has done so, OCR will consider the case against 
that school resolved and will take no further action. This is true in 
cases in which the school was in violation of Title IX,20 as well 
as those in which there has been no violation of Federal law.21

Welcomeness

    In order to be actionable as harassment, sexual conduct must be 
unwelcome. Issues regarding credibility determinations and whether 
conduct is in fact unwelcome, notwithstanding a student's acquiescence 
or failure to complain, are discussed in the Peer Harassment Guidance. 
Schools should be particularly concerned about this issue when 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; 22 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 adult employees of elementary and secondary 
schools and students in those schools. 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. However, if that 
presumption is challenged for older secondary students, and for post-
secondary students, OCR will consider a number of factors in 
determining whether sexual advances or other sexual conduct could be 
considered welcome:

--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 with an adult school employee. A 
student's age or disability would affect his or her ability to do 
so.23

Severe, Persistent, or Pervasive

    Even a single instance of quid pro quo harassment is a violation of 
Title IX. In determining whether an employee's sexual harassment of a 
student created a hostile environment, i.e., whether it was 
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, OCR considers the 
factors discussed in the Peer Harassment Guidance.24 An additional 
factor to consider if a student is harassed by a school employee is the 
identity and relationship of the individuals involved. For example, due 
to the power that a professor or teacher has over a student, sexually 
based conduct by that person toward a student

[[Page 52174]]

may be more likely to create a hostile environment than similar conduct 
by another student.25

Prompt and Equitable Grievance Procedures

    Title IX's requirement that schools adopt and publish grievance 
procedures providing for prompt and equitable resolution of complaints 
of discrimination on the basis of sex is also applicable to complaints 
of harassment of students by a school's employees.26 Thus, a 
school's grievance procedures must also apply to those complaints.
    In addition, because it is possible that an employee designated to 
handle Title IX complaints may him or herself engage in harassment, it 
may be necessary for the school to designate more than one employee as 
responsible for handling these complaints in order to ensure that 
students have an effective means of reporting harassment.27
    As in the case of students accused of harassment, a school's 
employees may have certain due process rights.28 Procedures that 
ensure the Title IX rights of the complainant, while at the same time 
according due process rights to the parties involved, will lead to 
sound and supportable decisions. The rights established under Title IX 
must be interpreted consistently with any applicable federally 
guaranteed rights involved in a complaint. Schools should ensure that 
steps to accord due process rights do not obstruct or delay the 
protections provided by Title IX to the complainant.

Notice of Outcome and FERPA

    As discussed in the Peer Harassment Guidance, the Title IX 
grievance process should provide for notice of the outcome and 
disposition of a complaint if doing so is consistent with a school's 
obligations under the Family Educational Rights and Privacy Act (FERPA) 
and its regulations.29 FERPA generally prohibits a school from 
releasing personally identifiable information from a student's 
education record without the consent of the student (or his or her 
parents, if the student is a minor).30 Thus, if the alleged 
harasser is a teacher, administrator, or other non-student employee, 
FERPA would not limit the school's ability to inform the complainant of 
any disciplinary action taken.

First Amendment

    Just as with peer harassment, in cases of alleged harassment by 
employees, the protections of the First Amendment must be considered if 
issues of speech or expression are involved.31 Title IX is 
intended to protect students from sex discrimination, not to regulate 
the content of speech. This is a particularly important consideration 
in classroom and related activities by teachers. Thus, in regulating 
the conduct of its faculty to prevent or respond to sexual harassment, 
a school must formulate, interpret, and apply its rules so as to 
protect free speech rights.32

Footnotes

    1. 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 contained in the Department's Peer 
Harassment Guidance 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 
contained in this Guidance 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 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. Finally, this Guidance does not 
address employee-on-employee sexual harassment, even though that 
conduct is prohibited by Title IX. If employees bring sexual 
harassment claims under Title IX, case law applicable to sexual 
harassment in the work place under Title VII of the Civil Rights Act 
of 1964, and Equal Employment Opportunity (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. Sec. 1681, et seq., as amended; 34 CFR 106.31(b).
    3. For over a decade, the Department has applied Title IX to 
prohibit sexual harassment. As in the Peer Harassment Guidance, the 
Department also applies many of the principles developed in the case 
law governing sexual harassment in the workplace, under Title VII, 
as appropriate to the educational context. Similarly, many of the 
principles applicable to racial harassment under Title VI of the 
Civil Rights Act of 1964 also apply to sexual harassment under Title 
IX. See Department's Notice of Investigative Guidance for Racial 
Harassment, 59 FR 11448 (1994).
    4. Alexander v. Yale University, 459 F. Supp 1, 4 (D.Conn 1977), 
aff'd, 631 F.2d 178 (2nd Cir. 1980) (a claim that academic 
advancement was conditioned upon submission to sexual demands 
constitutes a claim of sex discrimination in education); Kadiki v. 
Virginia Commonwealth University, 892 F. Supp 746, 752 (E.D. Va. 
1995) (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).
    5. See Peer Harassment Guidance at n. 5 (describing conduct 
found to be of a sexual nature).
    6. Doe v. Petaluma City School Dist., 830 F. Supp. 1560, 1571-73 
(N.D. Cal. 1993), motion for reconsideration granted (July 22, 1996) 
(reaffirming Title IX liability for peer harassment); 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 
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (Title 
VII case).
    7. 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).
    8. See Peer Harassment Guidance at notes 9, 41, and 42 and 
accompanying text.
    9. 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 where 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 v. Gwinnett County Public 
Schools, 503 U.S. 60, 75 (1992).
    10. 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 v. University of Puerto Rico, 
864 F.2d 881, 901 (1st Cir. 1988); 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 purposes of quid pro quo harassment of a 
student, professor is in similar position as work place supervisor).
    11. 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).

[[Page 52175]]

    12. Restatement (Second) Agency Sec. 219(2)(d); Martin v. 
Cavalier Hotel Corp., 48 F.3d at 1352 (finding an employer liable 
under Title VII for its General Manager's sexual harassment of an 
employee where the Manager used his apparent authority to commit the 
harassment; the Manager was delegated the 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).
    13. See Restatement (Second) of Agency Sec. 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 
v. Cavalier Hotel Corp., 48 F.3d at 1352.
    14. Karibian, 14 F.3d at 780 (employer would be liable for 
hostile environment harassment where 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).
    15. Cf. Karibian, 14 F.3d at 780.
    16. Id.
    17. See Peer Harassment Guidance at pp. 6-7.
    18. 34 CFR 106.8(b).
    19. 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.'').
    20. 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.
    21. However, schools should note that the Supreme Court has held 
that, should a student file a private lawsuit under Title IX, 
monetary damages are available as a remedy if there has been a 
violation of Title IX. Franklin, 503 U.S. at 76. Of course, a 
school's immediate and appropriate remedial actions are relevant in 
determining the extent and nature of the damages suffered by a 
plaintiff.
    22. See Leija v. Cantutillo Independent School Dist., 887 F. 
Supp. 947, 954 (N.D. Tex. 1993) (``young children, taught to respect 
their teachers and follow their teacher's request, often do not know 
what to do when abuse occurs'').
    23. Of course, nothing in Title IX would prohibit a school from 
implementing policies prohibiting sexual conduct or sexual 
relationships between students and adult employees.
    24. These factors include the type, frequency, and duration of 
the conduct; the number of individuals involved; the age and sex of 
the individuals involved; the size of the school, the location of 
the incidents, and the context in which they occurred; any other 
incidents at the school; and any incidents of gender-based, but non-
sexual harassment. Note that, as with peer harassment, a single 
instance of severe harassment may be sufficient to create a hostile 
environment. Peer Harassment Guidance at p. 5 and n.35; Racial 
Harassment Investigative Guidance at 11449; 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 (S.D.N.Y. 1989) (Title VII case).
    25. 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,--U.S.--, 
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).
    26. At the elementary and secondary level, this responsibility 
generally lies with the school district. At the post-secondary 
level, there may be a procedure for a particular campus or college 
or for an entire university system. Moreover, 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.
    27. See Meritor, 477 U.S. at 72-73.
    28. These rights may be derived from the United States 
Constitution, State law, collective bargaining agreements, or 
institutional regulations and policies, such as faculty handbooks.
    29. See 20 U.S.C. Sec. 1232g; 34 CFR Part 99.
    30. Id.
    31. 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.
    32. For an example of the application of First Amendment 
principles to alleged sexual harassment by a school employee, see 
Silva v. University of New Hampshire, 883 F. Supp. 293 (D.N.H. 1994) 
(finding that a university professor was wrongly disciplined when he 
was fired for using classroom examples that seemed sexual in nature 
to some students, based on an impermissibly subjective sexual 
harassment policy). See also 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).

Appendix Two--Sexual Harassment Guidance: Peer Harassment

    This guidance discusses the analysis that the Office for Civil 
Rights (OCR) follows, and that recipients of Federal funding should 
use, when investigating allegations that sexual harassment of a student 
or students by another student or group of students (peer harassment) 
has created a hostile environment at an educational institutions that 
receive Federal financial assistance.1 This guidance is based on 
existing legal principles, which are detailed in the endnotes 
accompanying the document.

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 education programs receiving Federal 
financial assistance.2 Peer sexual harassment is a form of 
prohibited sex discrimination where the harassing conduct creates a 
hostile environment.3 Thus, unwelcome sexual advances, requests 
for sexual favors, and other verbal or physical conduct of a sexual 
nature 4  constitutes sexual harassment when the conduct 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.5
    OCR finds a school to be in violation of Title IX for peer hostile 
environment sexual harassment where a school knows of but fails to 
remedy the harassment in its education programs or activities.6 
Title IX does not make a school responsible for the actions of the 
harassing students, but rather for its own discrimination in permitting 
the harassment to continue once the school has notice of it. A school 
will have notice of a hostile environment when it knew or should have 
known of the harassment.7 Moreover, schools are required by the 
Title IX regulations to have grievance procedures through which 
students can complain of alleged sex discrimination by other students, 
including sexual harassment.8
    It is important to recognize that Title IX's prohibition of sexual 
harassment does not extend to nonsexual touching

[[Page 52176]]

or other nonsexual conduct.9 For example, one student's 
demonstration of a sports maneuver requiring contact with another 
student will not be considered sexual harassment.10
    Finally, where the alleged harassment involves issues of speech or 
expression, a school's obligations may be affected by application of 
First Amendment principles.
    These issues are discussed in more detail below.

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. This 
guidance uses the term ``schools'' to refer to all such institutions. 
The ``education program'' of a school includes all of the school's 
operations.11 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.
    Title IX protects any ``person'' from sex discrimination; 
accordingly both male and female students are protected from sexual 
harassment by their peers.12 Moreover, Title IX prohibits sexual 
harassment regardless of the sex of the harasser, e.g., even where the 
harasser and the person being harassed are members of the same 
sex.13 One example would be a campaign of sexually explicit 
graffiti directed at a particular girl by other girls.14 Title IX 
does not, however, apply to discrimination on the basis of sexual 
orientation,15 although such conduct may be prohibited by State or 
local laws.

Liability of a School for Peer Sexual Harassment

    A school will be liable for the conduct of its students that 
creates a sexually hostile environment where (i) a hostile environment 
exists, (ii) the school knows (``has notice'') of the harassment, and 
(iii) the school fails to take immediate and appropriate steps to 
remedy it. Under such 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.16
    For the same reason, a school will be liable for sexual harassing 
conduct of third parties, who are not themselves students at the school 
(e.g., members of a visiting athletic club), where the conduct creates 
a sexually hostile environment in the school's programs or activities, 
if the school has notice of the harassment but fails to take 
appropriate steps to remedy it.17 In determining whether the 
school took appropriate measures to remedy the sexual harassment in 
these cases, OCR will consider the level of control that the school has 
over the alleged harasser.18

Welcomeness

    In order to be actionable as harassment, sexual conduct must be 
unwelcome. Conduct is unwelcome when the student being harassed did not 
``solicit or incite it'' and ``regarded the conduct as undesirable or 
offensive.'' 19 Mere acquiescence in the conduct or the failure to 
complain does not always mean that the conduct was welcome.20 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.21 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, where a student actively 
participates in sexual banter and discussions and gives no indication 
that he or she doesn't like it, then the evidence generally will not 
support a conclusion that the conduct was unwelcome.22
    When 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 of welcoming sexual conduct.
    If there is a dispute about whether the harassment occurred or 
whether it was welcome--in a case where it is appropriate to consider 
whether the conduct could be welcome--determinations should be made 
based on the totality of the circumstances. While this is not an 
exhaustive list, 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 had been found to have harassed 
others may support the credibility of the student claiming 
harassment; conversely, the student's claim will be weakened if he 
or she had been found to have made false allegations against other 
individuals.
--Evidence of the allegedly harassed student's reaction or behavior 
immediately 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?
--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

    Peer sexual harassment is created when 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. In deciding 
whether conduct is sufficiently severe, persistent or pervasive, the 
conduct should be considered from both a subjective 23 and 
objective 24 perspective. In making this determination, all 
relevant circumstances should be considered: 25
    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.26

--Many hostile environment cases involve tangible or obvious 
injuries.27 For example

[[Page 52177]]

a student's grades may go down or the student may be forced to 
withdraw from school.28 A student may also suffer physical 
injuries and mental or emotional distress.29
--However, a hostile environment may exist even where there is no 
tangible injury to the student.30 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.31 A student may be able to remain on a sports team, despite 
feeling humiliated or angered by harassment that creates a hostile 
environment.32 Harassing conduct in these examples alters the 
student's educational environment on the basis of sex.
--A hostile environment can occur even where the harassment is not 
targeted specifically at the individual complainant.33 For 
example, where a student or group of students regularly directs 
sexual comments towards a particular student, a hostile environment 
may be created not only for the targeted student, but for others who 
witness the conduct.

    The type, frequency and duration of the conduct. In most cases, a 
hostile environment will exist where there is a pattern or practice of 
harassment, or where the harassment is sustained and nontrivial.34 
For instance, where a young woman is taunted by one or more young men 
about her breasts and/or genital area, OCR may find that a hostile 
environment has been created, particularly where the conduct has gone 
on for some time, takes place throughout the school, or where 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 when the harassment is physical. For instance, where 
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.35 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.36 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, where it is 
clear that the conduct is unwelcome, repeated requests for dates or 
attempts to make contact could create a hostile environment.
    The number of individuals involved. For example, sexual harassment 
may be committed by an individual or a group. In some cases, verbal 
comments or other conduct from one person might not be sufficient to 
create a hostile environment, but could be if done by a group. 
Similarly, while harassment can be directed towards an individual or a 
group,37 the effect of the conduct towards 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 when directed towards a 
group.
    The age and sex of the alleged harasser and the subject(s) of the 
harassment. For example, in the case of younger students, sexually 
harassing conduct may be more intimidating when coming from an older 
student.38
    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.39 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.40
    Incidents of gender-based, but non-sexual harassment. Acts of 
verbal or physical aggression, intimidation, or hostility based on sex, 
but not involving sexual activity or language, is a form of 
discrimination and is unlawful if it is ``sufficiently patterned or 
pervasive'' and directed at individuals because of their sex.41 
Such incidents, combined with incidents of sexual harassment, could 
create a hostile environment, even if each by itself would not be 
sufficient.42

Notice and Grievance Procedures

    A school will be in violation of Title IX for peer sexual 
harassment occurring in its programs or activities if the school ``has 
notice'' of a sexually hostile environment and fails to take immediate 
and appropriate corrective action. A school will have notice when it 
actually ``knew, or in the exercise of reasonable care, should have 
known'' about the harassment. In addition, so long as an agent or 
responsible employee of the recipient received notice, that notice will 
be imputed to the recipient.
    A recipient can receive notice in many different ways. Because 
schools are required to have Title IX grievance procedures, 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 institution may have witnessed the 
harassment. The recipient 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 recipient also may 
have received notice from flyers about the incident(s) posted around 
the school.43
    Constructive notice exists when the school ``should have'' known 
about the harassment--when the school would have found out about the 
harassment through a ``reasonably diligent inquiry.'' 44 For 
example, where a school knows of some incidents of harassment, there 
may be situations where it will be charged with notice of others--where 
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--where 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).45
    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.46 These procedures provide a school with a 
mechanism for

[[Page 52178]]

discovering sexual harassment as early as possible and for effectively 
correcting problems, as required by Title IX. By having accessible, 
effective, and fairly applied grievance procedures (see discussion 
below), 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, where a school has failed to provide this mechanism 
for notice of and resolving complaints, it will be liable under Title 
IX for the lack of grievance procedures, regardless of whether sexual 
harassment occurred.47 Moreover, in the absence of effective 
grievance procedures, if OCR determines that the alleged harassment was 
sufficiently severe, persistent or pervasive to create a hostile 
environment, a school will be in violation of Title IX as to the 
existence of a hostile environment, even if the school was not aware of 
the harassment and thus failed to remedy it.48
    In addition, where a school otherwise has actual or constructive 
notice of a hostile environment (as discussed above), and fails to 
remedy the harassment, then OCR will find a violation even if the 
student fails to use the school's existing grievance procedures.
    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, as discussed in 
more detail below, Title IX grievance procedures must provide an 
effective means for responding to alleged sex discrimination at the 
school. Thus, where, because of the lack of a policy or procedures 
specifically addressing sexual harassment, students are unaware of what 
constitutes sexual harassment, or that such conduct is prohibited sex 
discrimination, OCR will not consider the school's general policy and 
procedures relating to sex discrimination complaints to be 
effective.49

Recipient's Response

    What constitutes a reasonable response to information about 
possible sexual harassment will differ. Where a student, parent, or 
other individual has filed a complaint or otherwise reported incidents 
of harassment, the school must investigate and determine appropriate 
steps to resolve the situation.50 Where information about possible 
harassment is less direct, the school's response to the information may 
vary depending upon factors such as: the source and nature of the 
information; the seriousness of the alleged harassment; whether any 
individuals can be identified who were subjected to the harassment, and 
their age; whether those individuals want to pursue the matter; whether 
there have been other complaints or reports of harassment by the 
alleged harasser; the specificity of the information; and the 
objectivity and credibility of the source of the report. It may be 
appropriate for a school to take interim measures. For instance, where 
a student alleges that she has been sexually assaulted by another 
student, it may be appropriate for the school to immediately separate 
the two students pending the results of the school's investigation.
    Where a school determines that sexual harassment has occurred, it 
should take reasonable, timely and effective corrective action, 
including steps tailored to the specific situation.51 As discussed 
above, where the harasser is not a student of the recipient, OCR will 
consider the level of control the school has over the harasser in 
determining what response would be appropriate.
    First, appropriate steps should be taken to end the harassment. For 
example, a school may need to counsel, warn or even take disciplinary 
action against the harasser, based on the severity of the harassment 
and/or any record of prior incidents.52 In some cases, it may be 
appropriate to separate the harassed student and the harasser, e.g., by 
changing housing arrangements 53 or directing the student harasser 
to have no further contact with the harassed student. It may also be 
appropriate to direct the harasser to apologize to the harassed 
student. Counseling for the harasser may be appropriate, as to what 
constitutes harassment and the effects it can have.
    In addition, corrective action should address the effects on those 
who have been subject to harassment. For example, if a student was 
forced to withdraw from a class because of harassment from fellow 
students, he or she should be given the opportunity to take the class 
again. In some instances, a school may be required to provide or 
reimburse the student for professional counseling or other services 
necessary to address the effects of the harassment on the person 
subjected to it.54
    Finally, a school should take steps to prevent any further 
harassment.55 At a minimum, this includes making sure that the 
harassed students and their parents know how to report any further 
problems and making follow-up inquiries to see if there have been any 
further incidents or any retaliation. In addition, depending on how 
widespread the harassment was and whether there had been any prior 
incidents, the school may need to provide training for the larger 
educational community to prevent any future incidents and ensure that 
students, parents, and teachers can recognize any that do occur and 
know how to respond.56 A school must always ensure that there is 
no retaliation against a student for raising a sexual harassment 
complaint.
    Where a student reporting harassment asks that his or her name not 
be disclosed, or even that nothing be done about the alleged 
harassment, the school should try to determine whether the student is 
afraid of reprisals from the alleged harasser, and inform the student 
that Title IX prohibits this sort of retaliation and that the school 
will take strong responsive steps if it occurs. The school must then 
takes steps to ensure that no retaliation occurs.
    Should the student continue to ask for confidentiality, the school 
should take all possible steps to investigate and respond to the 
complaint consistent with that request. While confidentiality may limit 
the school's ability to fully respond to the complaint--for example, 
the school may not be able to find out the alleged harasser's version 
of events without at least indirectly revealing the complainant's 
name--the school may still be able to take steps to address the 
harassment. For example, the school may be able to counsel the student 
or provide general training about sexual harassment to the school or 
portion of the school where the problem was raised. 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.

Prevention

    Adopting and publicizing a policy specifically prohibiting sexual 
harassment and having separate grievance procedures available 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, a school can provide training to 
administrators, teachers, and staff, and age-appropriate classroom 
information to students, to ensure that they understand what types

[[Page 52179]]

of conduct can cause sexual harassment and that they know how to 
respond.

Prompt and Equitable Grievance Procedures

    Schools are required to adopt and publish grievance procedures 
providing for prompt and equitable resolution of complaints of 
discrimination on the basis of sex.57 In the context of peer 
harassment, OCR has examined a number of elements in determining 
whether a school's grievance procedures are prompt and equitable, 
including whether the procedures provide for:
    (1) Notice of the procedure to students, parents, and employees;
    (2) Application of the procedure to complaints alleging harassment 
by students;
    (3) Adequate and reliable investigation of complaints by an 
impartial investigator, including the opportunity to present witnesses 
and other evidence;
    (4) Designated time frames for the major stages of the complaint 
process;
    (5) Notice to the parties of the disposition of the complaint;
    (6) Steps to prevent recurrence of any harassment and to correct 
its effects on the complainant and others.
    In addition, many schools also provide an opportunity to appeal the 
findings and/or remedy. Procedures adopted by schools will vary 
considerably in specificity and components, reflecting different 
audiences, sizes, administrative structures, state or local legal 
requirements, and past experience. In addition, whether procedures are 
timely will vary depending on the complexity and severity of the 
harassment.
    A grievance procedure applicable to peer 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 putting them in the school's 
administrative or policy manual, may not 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 process in all major publications issued by the school 
(handbooks or catalogs for students, parents, faculty, staff); and 
identifying individuals who can explain how the procedure works.
    A college or school district must designate at least one employee 
to coordinate its efforts to comply with and carry out its Title IX 
responsibilities.58 The school must notify all of its students and 
employees of the name, office address and telephone number of the 
employee(s) designated.59 While a school may choose to have a 
number of employees responsible for Title IX matters, it is advisable 
to give one official responsibility for overall coordination and 
oversight of all sexual harassment complaints to ensure consistent 
practices and standards in the handling of all complaints. Coordination 
in terms of recordkeeping is also essential to ensure that the school 
can and will identify and resolve recurring problems and the problem of 
repeat offenders.60 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.61
    Grievance procedures may include informal mechanisms for resolving 
sexual harassment complaints, to be used where the parties agree to do 
so.62 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 student 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, where 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 resolution process. 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 
complaint may allege harassing conduct that constitutes both sex 
discrimination and possible criminal conduct. Police investigations or 
reports may be useful in terms of fact-gathering. However, because they 
use different standards they may not be dispositive under Title IX, and 
do not relieve the school of its duty to respond promptly.63 
Similarly, schools are cautioned about using the results of insurance 
company investigations of sexual harassment allegations. The purpose of 
an insurance investigation is to determine liability under the 
insurance policy, and the applicable standards (the insurance contract 
and applicable state or Federal insurance law) 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.64
    Finally, the United States Constitution guarantees due process to 
public school students accused of infractions such as sexual 
harassment. Similarly, state laws may provide additional rights to 
students, even at private schools. Schools should be aware of these 
rights and their legal responsibilities to those students accused of 
harassment. Indeed, procedures that ensure the Title IX rights of the 
complainant while at the same time according due process to the 
individual accused of harassment will lead to sound and supportable 
decisions. The rights established under Title IX must be interpreted 
consistently with any federally guaranteed rights involved in a 
complaint. Recipients should ensure that steps to accord due process 
rights to the accused do not obstruct or delay the protections provided 
by Title IX to the complainant.

Notice of Outcome and FERPA

    The Title IX grievance process should provide for notice of the 
outcome and disposition of a complaint 65 where doing so is 
consistent with a school's obligations under the Family Educational 
Rights and Privacy Act (FERPA) and its regulations.66 The parties 
to a complaint need information such as whether or not sexual 
harassment was found to have occurred and, if so, the steps that the 
school has taken or will take to correct the discrimination in order to 
know if the complaint has been resolved equitably.
    When determining what information will be provided to and about 
students, however, a school must consider the requirements of FERPA. 
FERPA generally prohibits a school from releasing personally 
identifiable information from a student's education record without the 
consent of the student (or his or her parents, if the student is a 
minor).67 Thus, FERPA's requirements may prevent a school from 
informing a complainant of any sanction or discipline imposed on a 
student found guilty of harassment, where that information is contained 
in the student's education record.68
    FERPA provides that the complainant may learn of actions taken 
against

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another student in certain limited circumstances. Under FERPA, a 
student has the right to inspect and review any personally identifiable 
information contained in the education record of another student if 
that information is directly related to the first student.69 For 
example, in the case of a disciplinary record or order requiring the 
student harasser not to have contact with the complainant, the 
complainant would be entitled to review that portion of the record that 
contains this information; thus, it would not be a violation of FERPA 
for the school to tell the complainant of the order. Also, where the 
harassment involves a crime of violence or a sexual assault, 
postsecondary schools are permitted and may even be required to 
disclose the results to the complainant.70
    FERPA is enforced by the Department through its Family Policy 
Compliance Office, U.S. Department of Education, Washington, D.C. 
20202.

First Amendment

    In cases of alleged harassment, the protections of the First 
Amendment must be considered where issues of speech or expression are 
involved. Free speech rights apply in the classroom (e.g., classroom 
lectures and discussions) 71 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 72; 
and student newspapers, journals and other publications 73).
    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.74 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.75
    Moreover, in regulating the conduct of its students to prevent or 
redress discrimination prohibited by Title IX (e.g., in responding to 
peer harassment that is sufficiently severe as to create a hostile 
environment), a school must formulate, interpret and apply its rules so 
as to protect free speech rights. For instance, while the First 
Amendment may prohibit a school from restricting the right of students 
to express opinions about one sex that may be viewed as derogatory, the 
school can take steps to denounce such opinions and ensure that 
competing views are heard. It can also take other measures to prevent 
and eliminate a sexually hostile environment, such as instituting 
restrictions related to disorderly or disruptive conduct. Moreover, the 
age of the students involved and the location or forum may affect how 
the school can respond consistent with the First Amendment.76

Footnotes

    1. This guidance is limited to peer sexual harassment that 
creates a hostile environment. Where a student engages in sexual 
harassment as an agent or employee of an educational institution, 
for instance where a student teaching assistant requires a student 
in his or her class to submit to his or her sexual advances in order 
to obtain a certain grade in the course, this conduct also would 
violate Title IX; however, these types of situations are not 
addressed in this guidance.
    2. 20 U.S.C. Sec. 1681 et seq. See also 34 C.F.R. 
Sec. 106.31(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 
work place, developed under Title VII of the Civil Rights Act of 
1964, 42 U.S.C. Sec. 2000e-2(a). 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); 
Murray v. New York University College of Dentistry, 57 F.3d 243, 249 
(2d Cir. 1995) (same); Doe v. Petaluma City School Dist., 830 F. 
Supp. 1560, 1571-72 (N.D. Cal. 1993) (same), rev'd in part on other 
grounds, 54 F.3d 1447 (9th Cir. 1995).
    In addition, many of the principles applicable to racial 
harassment under Title VI of the Civil Rights Act, 42 U.S.C. 
Sec. 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 Fed. Reg. 11,448 (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. 
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, 830 F. Supp at 
1575-76, motion for reconsideration granted (July 22, 1996) 
(reaffirming Title IX liability for peer harassment where the school 
knows of the hostile environment but fails to take remedial action; 
applying Title VII standard, i.e., no additional, separate intent 
requirement); Burrow v. Postville Community School District, No. 
C94-1031, 1996 U.S. Dist LEXIS 9147 at *34 (N.D. Iowa June 17, 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 where a sexually hostile 
working environment is created by co-workers and tolerated by the 
employer, Title IX is violated where 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; cf. Murray v. New York 
University, 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).
    One Federal court decision, Rowinsky v. Bryan Independent School 
District, 80 F.3d 1006 (5th Cir. 1996), petition for cert. filed 
(July 1, 1996), has held to the contrary. In that case, over a 
strongly worded 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 claims of girls versus boys.
    The Rowinsky decision misunderstands a school's liability under 
Title IX. Title IX does not make a school responsible for the 
actions of the harassing student, but rather for its own 
discrimination in failing to act and permitting the harassment to 
continue once a school official knows that it is happening. When 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. Title VII cases 
making employers responsible for remedying hostile environment 
harassment of one worker by a coworker 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. Allis-
Chalmers 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).
    The petition for certiorari in the Rowinsky case (July 1, 1996) 
will likely be ruled on this fall.
    See e.g., Franklin, 503 U.S. at 63 (conduct of a sexual nature 
found to support a sexual harassment claim under Title IX included 
kissing, sexual intercourse); Meritor Savings Bank FSB v. Vinson, 
477 U.S. 57, 60-61 (1986) (demands for sexual favors, sexual 
advances, fondling, indecent exposure, sexual intercourse, rape 
sufficient to raise hostile environment claim under Title VII); 
Harris v. Forklift Systems, Inc., 510 U.S. ____, 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

[[Page 52181]]

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 v. Virginia Commonwealth University, 892 F. Supp. 746, 751 
(E.D. Va. 1995) (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).
    Davis v. Monroe County, 74 F.3d at 1194, vacated, reh'g granted; 
Doe v. Petaluma City School Dist., 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.
    Davis v. Monroe County, 74 F.3d at 1193-94, vacated, reh'g 
granted; Racial Harassment Guidance, 59 Fed. Reg. at 11,449-50.
    As explained in Rosa H. v. San Elizario Ind. School Dist., 887 
F. Supp. 140, 143 (W.D. Tex. 1995):

[T]he school district is in the best position to be on the lookout 
for discriminatory conduct * * * A ``knew or should have known'' 
requirement mandates that the school district monitor its employees 
and students and prevents a situation where the district, through 
its employees or policies, turns a blind eye toward discriminatory 
conduct.

    8. 34 CFR Sec. 106.8(b).
    9. However, gender-based peer harassment--that is acts of verbal 
or physical aggression, intimidation, or hostility based on sex but 
not involving sexual activity or language--is a form of 
discrimination (just as in the case of harassment based on race or 
national origin). 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; assault could be sex-based 
harassment if shown to be unequal treatment that would not have 
taken place but for the employee's sex).
    10. Cf. Dartmouth Public Schools, OCR Case No. 01-90-1058 
(contact between high school coach and students not conduct of a 
sexual nature); 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); 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).
    11. 20 U.S.C. Sec. 1687 (codification of the Title IX part of 
the Civil Rights Restoration Act of 1987); Leija v. Cantutillo Ind. 
School Dist., 887 F. Supp. 947, 957 (W.D. Tex. 1995).
    12. 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).
    13. Title IX and the regulations implementing it prohibit 
discrimination ``on the basis of sex;'' they do not restrict sexual 
harassment to those circumstances in which the harasser only 
harasses members of the opposite sex. See 34 C.F.R. Sec. 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 harasses a member of the same sex. See 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). Cf 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 when 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., where a 
female student is repeatedly propositioned by a male student (or, 
for that matter, where a male student is repeatedly propositioned by 
a male student). In other circumstances, harassing conduct will be 
on the basis of sex where 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 and/or affected the 
nature of the harasser's conduct. 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 1458, 1463-64 (9th Cir. 1994) (Title 
VII case).
    14. Nashoba Regional High School, OCR Case No. 01-92-1397. In 
Conejo Valley School Dist., OCR Case No. 09-93-1305 (5/27/94), 
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.
    15. Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69 (8th 
Cir. 1989), (Title VII case) cert. denied 493 U.S. 1089 (1994); 
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).
    16. See note 3.
    17. As with peer harassment by its own students, a school's 
liability for the harassment of its students by others is based on 
its obligation to provide an environment free of discrimination. 
Racial Harassment Investigative Guidance, 59 Fed. Reg. at 11,450 
(referring to harassment by neighborhood teenagers, guest speaker, 
and parents); Murray, 57 F.3d at 250 (student participating in 
university dental clinic providing services to the public alleged 
harassment by a patient; while court ruled in defendant's favor 
because of lack of notice, it considered such a claim actionable 
under Title IX).
    18. For example, where athletes from a visiting team harass the 
home school's students, the home school may not be able to 
discipline the students. However, it could encourage the athletes' 
school to take appropriate action to prevent further incidents; if 
necessary, the home school may choose not to invite the athletes' 
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 airport where she was assigned to 
work, e.g., contacting airport management to see what remedial 
measures could be taken).
    19. Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982) 
(Title VII case).
    20. [T]he fact that sex-related conduct was ``voluntary,'' in 
the sense that the complainant was not forced to participate against 
her will, is not a defense to a sexual harassment suit brought under 
Title VII * * *. The correct inquiry is whether [the subject of the 
harassment] by her conduct indicated that the alleged sexual 
advances were unwelcome, not whether her actual participation in 
sexual intercourse was voluntary.
Vinson, 477 U.S. at 68.
    21. Lipsett, 864 F.2d at 898 (while, in some instances, a person 
may have the responsibility for telling the harasser directly that 
the conduct is unwelcome, in other cases a ``consistent failure to 
respond to suggestive comments or gestures may be sufficient * * 
*.''); Danna, 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.'').
    22. Reed v. Shepard, 939 F.2d 484, 486-87, 491-92 (7th Cir. 
1991) (no harassment

[[Page 52182]]

found under Title VII where female employees not only tolerated, but 
also participated and instigated the suggestive joking activities 
about which she was now complaining); Weinsheimer v. Rockwell Int'l 
Corp., 754 F. Supp. 1559, 1563-64 (D. Fl. 1990) (same, where general 
shop banter was full of vulgarity and sexual innuendo by men and 
women alike, and plaintiff contributed her share to this 
atmosphere).
    23. Davis v. Monroe County, 74 F.3d at 1126 (when interpreting 
the requirement in Harris that the harassment must unreasonably 
interfere with the plaintiff's performance, 114 S.Ct. at 371, the 
court stated: ``* * * if the plaintiff does not subjectively 
perceive the environment to be abusive, then the conduct has not 
actually altered the conditions of her learning environment, and 
there is no Title IX violation''), vacated, reh'g granted.
    24. 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 v. Brady, 924 F.2d at 878-79 (applying a 
``reasonable women'' standard to sexual harassment), and has been 
adapted to sexual harassment in education, Davis v. Monroe County, 
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 Fed. Reg. at 11,452 (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).
    25. Harris, 114 S.Ct. at 371; Racial Harassment Guidance, 59 
Fed. Reg. at 11449 and 11452.
    26. Davis v. Monroe County, 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).
    27. Harris, 114 S.Ct. at 371.
    28. 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).
    29. Doe v. Petaluma, 830 F. Supp. at 1566.
    30. See Harris, 114 S.Ct. at 371, where 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.
    31. 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).
    32. Summerfield Schools, OCR Case No. 15-92-1029.
    33. See Waltman v. Int'l Paper Co., 875 F.2d 468, 477 (5th Cir. 
1989) (Title VII case); see also Hall v. Gus Construction Co., 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 Fed. Reg. at 11,453.
    34. 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).
    35. 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 
coworker'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).
    36. 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).
    37. See, e.g., McKinney, 765 F.2d at 1138-40; Robinson v. 
Jacksonville Shipyard, 760 F. Supp. at 1522.
    38. Cf. Patricia H., 830 F. Supp. at 1297.
    39. See also Barrett v. Omaha National Bank, 584 F. Supp. at 24 
(harassment occurring in a car from which the plaintiff could not 
escape was deemed particularly severe).
    40. 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). See also Hall v. Gus Construction Co. 842 F.2d at 
1015 (incidents of sexual harassment directed at other employees); 
Hicks v. Gates Rubber, 833 F.2d at 1415-16 (same).
    41. 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).
    42. See Harris, 114 S. Ct. at 370-71; 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 
1094, 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). 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 v. Gates Rubber Co., 833 F.2d at 
1416; Jefferies v. Harris Community Action Ass'n, 615 F.2d 1025, 
1032 (5th Cir. 1980) (Title VII case).
    43 Racial Harassment Guidance, 59 Fed. Reg. at 11450 (discussing 
how a school may receive notice).
    44. 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 
Fed. Reg. at 11,450.
    45. Cf. Katz v. Dole, 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 where these

[[Page 52183]]

students may not have been aware that the conduct was offensive or 
abusive).
    46. See 34 C.F.R. Sec. 106.8(b). Moreover, schools have an 
obligation to ensure that the educational environment is free of 
harassment, and cannot fulfill this obligation without determining 
whether sexual harassment complaints have merit.
    47. Fenton Community High School Dist. #100, OCR Case No. 05-92-
1104.
    48. See Racial Harassment Investigative Guidance, 59 Fed. Reg. 
at 11,450.
    49. See Vinson, 477 U.S. at 72-73.
    50. Schools have an obligation to ensure that the educational 
environment is free of harassment, and cannot fulfill this 
obligation without determining where sexual harassment complaints 
have merit. Moreover, failure to respond to a complaint does not 
meet the ``prompt and equitable'' requirements for grievance 
procedures under Title IX.
    51. 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 Fed. Reg. 
at 11,450.
    52. 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).
    53. 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).
    54. Leija, 878 F. Supp. at 957 (medical and mental health 
treatment and any special education needed as a result of the 
harassment); 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).
    55. 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).
    56. 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 
non-management personnel).
    57. 34 C.F.R Sec. 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.
    58. 34 C.F.R. Sec. 106.8(a).
    59. Id.
    60. 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 individual file.
    61. 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.
    62. 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, where 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.
    63. Academy School Dist. No. 20, OCR Case No. 08-93-1023 
(school's response determined to be insufficient where 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).
    64. 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).
    65. University of California, Santa Cruz, OCR Case No. 09-93-
2141; Cerro Cosa Community College, OCR Case No. 09-92-2120.
    66. See 20 U.S.C. Sec. 1232g; 34 C.F.R. Part 99.
    67. Id.
    68. Under FERPA, education records are defined as records, 
documents, or other materials maintained by a school that contain 
information directly related to a student. 20 U.S.C. 
Sec. 1232(g)(4).
    69. 20 U.S.C. Sec. 1232g(a)(1)(A); 34 C.F.R. Sec. 99.12(a).
    70. Colleges and other postsecondary schools are required to 
disclose the outcome in cases involving sexual assault, 20 U.S.C. 
Sec. 1092(f). In addition, information about ``crimes of violence'' 
can be disclosed to the complainant consistent with FERPA, 20 U.S.C. 
Sec. 1232(g)(b)(6).
    71. 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 a historical novel 
aloud in class constituted an academic decision on presentation of 
curriculum, not racial harassment).
    72. 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).
    73. See Florida Agricultural and Mechanical University, OCR Case 
No. 04-92-2054 (no discrimination where campus newspaper, which 
welcomed individual opinions of all sorts, printed article 
expressing one student's viewpoint on white students on campus).
    74. 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).
    75. Cf. 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.
    76. 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. 96-25283 Filed 10-3-96; 8:45 am]
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