[Federal Register Volume 62, Number 49 (Thursday, March 13, 1997)]
[Notices]
[Pages 12034-12051]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-6373]



[[Page 12033]]

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Part VII





Department of Education





_______________________________________________________________________



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

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

[[Page 12034]]



DEPARTMENT OF EDUCATION


Office for Civil Rights; Sexual Harassment Guidance: Harassment 
of Students by School Employees, Other Students, or Third Parties

ACTION: Final policy guidance.

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

SUMMARY: The Assistant Secretary for Civil Rights issues a final 
document entitled ``Sexual Harassment Guidance'' (Guidance). Sexual 
harassment of students is prohibited by Title IX of the Education 
Amendments of 1972 under the circumstances described in the Guidance. 
The Guidance provides educational institutions with information 
regarding the standards that are used by the Office for Civil Rights 
(OCR), and that institutions should use, to investigate and resolve 
allegations of sexual harassment of students engaged in by school 
employees, other students (peers), or third parties.

FOR FURTHER INFORMATION CONTACT: Howard I. Kallem. U.S. Department of 
Education, 600 Independence Avenue, S.W., Room 5412 Switzer Building, 
Washington, D.C. 20202-1174. Telephone (202) 205-9641. Internet 
address: Howard__K[email protected] For additional copies of this Guidance, 
individuals may call OCR's Customer Service Team at (202) 205-5413 or 
toll-free at 1-800-421-3481. Individuals who use a telecommunications 
device for the deaf (TDD) may call the Department's toll-free number, 
1-800-421-3481, in conjunction with the phone company's TDD relay 
capabilities. This Guidance will also be available at OCR's site on the 
Internet at URL http://www.ed.gov/offices/OCR/ocrpubs.html.

SUPPLEMENTARY INFORMATION:

Purpose of the Guidance

    Title IX of the Education Amendments of 1972 (Title IX) prohibits 
discrimination on the basis of sex in education programs and activities 
receiving Federal financial assistance. Sexual harassment of students 
can be a form of discrimination prohibited by Title IX. The Office for 
Civil Rights has long recognized that sexual harassment of students 
engaged in by school employees, other students, or third parties is 
covered by Title IX. OCR's policy and practice is consistent with the 
Congress' goal in enacting Title IX--the elimination of sex-based 
discrimination in federally assisted education programs. It is also 
consistent with United States Supreme Court precedent and well-
established legal principles that have developed under Title IX, as 
well as under the related anti-discrimination provisions of Title VI 
and Title VII of the Civil Rights Act of 1964.
    The elimination of sexual harassment of students in federally 
assisted educational programs is a high priority for OCR. Through its 
enforcement of Title IX, OCR has learned that a significant number of 
students, both male and female, have experienced sexual harassment, 
that sexual harassment can interfere with a student's academic 
performance and emotional and physical well-being, and that preventing 
and remedying sexual harassment in schools is essential to ensure 
nondiscriminatory, safe environments in which students can learn.
    The Guidance applies to students at every level of education. It 
provides information intended to enable school employees and officials 
to identify sexual harassment and to take steps to prevent its 
occurrence. In addition, the Guidance is intended to inform educational 
institutions about the standards that should be followed when 
investigating and resolving claims of sexual harassment of students. 
The Guidance is important because school personnel who understand their 
obligations under Title IX are in the best position to prevent 
harassment and to lessen the harm to students if, despite their best 
efforts, harassment occurs. The Guidance discusses factors to be 
considered in applying the standards and examples that are designed to 
illustrate how the standards may apply to particular situations. 
Overall, the Guidance illustrates that in addressing allegations of 
sexual harassment, the judgment and common sense of teachers and school 
administrators are important elements of a response that meets the 
requirements of Title IX.
    In addition, it is clear from the Guidance that not all behavior 
with sexual connotations constitutes sexual harassment under Federal 
law. In order to give rise to a complaint under Title IX, sexual 
harassment must be sufficiently severe, persistent, or pervasive that 
it adversely affects a student's education or creates a hostile or 
abusive educational environment. For a one-time incident to rise to the 
level of harassment, it must be severe.
    As illustrated in the Guidance, school personnel should consider 
the age and maturity of students when responding to allegations of 
sexual harassment. The Guidance explains that age is relevant in 
determining whether sexual harassment occurred in the first instance, 
as well as in determining the appropriate response by the school. For 
example, age is relevant in determining whether a student welcomed the 
conduct and in determining whether the conduct was severe, persistent, 
or pervasive. Age is a factor to be considered by school personnel when 
determining what type of education or training to provide to students 
in order to prevent sexual harassment from occurring.
    Notably, during the time that the Guidance was available for public 
comment, several incidents involving young students occurred in public 
schools and were widely reported in the press. In one incident a school 
reportedly punished a six-year-old boy, under its sexual harassment 
policy, for kissing a female classmate on the cheek. These incidents 
provide a good example of how the Guidance can assist schools in 
formulating appropriate responses to conduct of this type. The factors 
in the Guidance confirm that a kiss on the cheek by a first grader does 
not constitute sexual harassment.
    Consistent with the Guidance's reliance on school employees and 
officials to use their judgment and common sense, the Guidance offers 
school personnel flexibility in how to respond to sexual harassment. 
Commenters who read the Guidance as always requiring schools to punish 
alleged harassment under an explicit sexual harassment policy rather 
than by use of a general disciplinary or behavior code, even if the 
latter may provide more age-appropriate ways to handle those incidents, 
are incorrect. First, if inappropriate conduct does not rise to the 
level of harassment prohibited by Title IX, school employees or 
officials may rely entirely on their own judgment regarding how best to 
handle the situation.
    Even if a school determines that a student's conduct is sexual 
harassment, the Guidance explicitly states that Title IX permits the 
use of a general student disciplinary procedure. The critical issue 
under Title IX is whether responsive action that a school could 
reasonably be expected to take is effective in ending the sexual 
harassment and in preventing its recurrence. If treating sexual 
harassment merely as inappropriate behavior is not effective in ending 
the harassment or in preventing it from escalating, schools must take 
additional steps to ensure that students know that the conduct is 
prohibited sex discrimination.

Process in Developing the Guidance

    Because of the importance of eliminating sexual harassment in 
schools, and based on the requests of schools, teachers, parents, and 
other interested parties, OCR determined that it should provide to 
schools a

[[Page 12035]]

comprehensive discussion of the legal standards and related issues 
involved in resolving sexual harassment incidents. While this document 
reflects longstanding OCR policy and practice in this area, it also 
reflects extensive consultation with interested parties. Even before 
making documents available for formal comment, OCR held a series of 
meetings with groups representing students, teachers, school 
administrators, and researchers. In these discussions, OCR gained 
valuable information regarding the realities of sexual harassment in 
schools, as well as information regarding promising practices for 
identifying and preventing harassment. These insights and learning are 
reflected in the Guidance.

Issuance of the Guidance for Comment and the Format of the Final 
Guidance

    On August 16, 1996, the Assistant Secretary for Civil Rights 
published a notice in the Federal Register (61 FR 42728) regarding the 
availability of a document entitled: ``Sexual Harassment Guidance: Peer 
Sexual Harassment'' (Peer Guidance) and inviting comments on the 
document. Subsequently, on October 4, 1996, the Assistant Secretary 
published in the Federal Register (61 FR 52172) a request for comments 
on a document entitled: ``Sexual Harassment Guidance: Harassment of 
Students by School Employees'' (Employee Guidance). Both notices stated 
that the guidance documents reflected longstanding OCR policy and 
practice and invited comments and recommendations regarding their 
clarity and completeness.
    The most significant change in the format of the final document is 
that it combines the two separate guidance documents into one document 
that addresses sexual harassment of students by peers, school 
employees, or third parties. Commenters frequently stated that a 
combined document would be clearer and easier to use. OCR agrees. Thus, 
the term ``Guidance'' when used in this preamble refers to the combined 
document that incorporates both the Peer Guidance and the Employee 
Guidance.

Analysis of Comments and Changes

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

The Need for Additional Guidance

    Comments: Many commenters agreed that a document combining the Peer 
Guidance and the Employee Guidance would provide more clarity to 
schools. Commenters disagreed, however, regarding whether, and what 
type of, additional information is needed to enhance schools' 
understanding of their legal obligations under Title IX. Some 
commenters asked for more detailed analysis regarding the applicable 
legal standards, including hard and fast rules for determining what is 
harassment and how a school should respond. Other commenters, by 
contrast, found OCR's guidance documents, including the extensive legal 
citations, to be too detailed and ``legalistic.'' They expressed a need 
for a document that is simpler and more accessible to teachers, 
parents, school administrators, and others who need to know how to 
recognize, report, or respond to sexual harassment.
    Discussion: As the Guidance makes clear, it is impossible to 
provide hard and fast rules applicable to all instances of sexual 
harassment. Instead, the Guidance provides factors to help schools make 
appropriate judgments.
    In response to concerns for more analysis of the legal standards, 
OCR has provided additional examples in the Guidance to illustrate how 
the Title IX legal standards may apply in particular cases. It is 
important to remember that examples are just that; they do not cover 
all the types of situations that may arise. Moreover, they may not 
illustrate the only way to respond to sexual harassment of students 
because there is often no one right way to respond.
    OCR also believes that there is a legitimate concern that school 
administrators, teachers, students, and parents need an accessible 
document to assist them in recognizing and appropriately responding to 
sexual harassment. Accordingly, OCR has developed, in addition to the 
final Guidance, a pamphlet for conveying basic information regarding 
parties' rights and responsibilities under Title IX. The pamphlet 
includes information from the Guidance that would be most useful to 
these groups as they confront issues of sexual harassment. Concurrent 
with the issuance of this Guidance, the pamphlet will be issued with 
copies available from all OCR offices and an electronic posting on 
OCR's web site. For a copy of the pamphlet, individuals may call OCR's 
Customer Service Team at (202) 205-5413 or toll-free 1-800-421-3481. 
Copies will also be available from all OCR enforcement offices, and the 
pamphlet will be posted on OCR's site on the Internet at URL http://
www.ed.gov/offices/OCR/ocrpubs.html.

Additional Guidance on the First Amendment

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

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the First Amendment principles discussed there.

Application of Guidance to Harassment by Third Parties

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

Application of Guidance to Harassment Based on Sexual Orientation

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

The Effect on the Guidance of Conflicting Federal Court Decisions

    Comments: Several commenters requested clarification of the 
standards to be applied to sexual harassment cases in States subject to 
the jurisdiction of the United States Court of Appeals for the Fifth 
Circuit, specifically in light of the Fifth Circuit's decision in 
Rowinsky v. Bryan Independent School District, 80 F.3d 1006 (5th Cir. 
1996), cert. denied, 117 S. Ct. 165 (1996).
    Discussion: One beneficial result of the Guidance will be to 
provide courts with ready access to the standards used by the agency 
that has been given the authority by law to interpret and enforce Title 
IX. Courts generally benefit from and defer to the expertise of an 
agency with that authority.
    Nevertheless, OCR recognizes that recent Fifth Circuit decisions 
add to schools' confusion regarding Title IX legal standards. In 
Rowinsky, the Fifth Circuit held that a school is not liable under 
Title IX even if it is on notice of peer sexual harassment and it 
ignores or fails to remedy it, unless it responds differently based on 
the sex of the alleged victim. Consistent with the vigorous dissent in 
Rowinsky, as well as with other Federal decisions contrary to the 
Rowinsky holding, OCR continues to believe that the Rowinsky decision 
was wrongly decided. In OCR's view, the holding in Rowinsky was based 
on a mistaken belief that the legal principle underpinning this aspect 
of the Guidance makes a school responsible for the actions of a 
harassing student, rather than for the school's own discrimination in 
failing to respond once it knows that the harassment is happening.
    In two very recent decisions involving sexual harassment of 
students by school employees, the Fifth Circuit again applied Title IX 
law in a manner inconsistent with OCR's longstanding policy and 
practice. First, in Canutillo Indep. School Dist. v. Leija, 101 F.3d 
393, 398-400 (5th Cir. 1996), the court held, again over a strong 
dissent and contrary to OCR policy, that a school district was not 
liable for the sexual molestation of a second grade student by one of 
her teachers because the student and her mother only reported the 
harassment to her homeroom teacher. The court determined that notice to 
the teacher was not notice to the school--notwithstanding that a school 
handbook instructed students and parents to report complaints to the 
child's primary or homeroom teacher.
    Finally, in Rosa H. v. San Elizario Indep. School Dist., 1997 U.S. 
App. LEXIS 2780 (Feb. 17, 1997), the Fifth Circuit reversed a jury 
finding that a school district was liable under Title IX for a hostile 
environment created by the school's male karate instructor, who 
repeatedly initiated sexual intercourse with a fifteen-year-old female 
karate student, often during the school day. The court held that, while 
``there was no question that the student was subject to discrimination 
based on sex,'' a school is liable only in situations in which an 
employee who has been invested by the school board with supervisory 
power over the offending employee actually knew of the abuse, had the 
power to end the abuse, and failed to do so.
    Several of the decisions discuss according ``appreciable 
deference'' to OCR's interpretation of Title IX in appropriate 
circumstances and contain other indications that Title IX law is 
evolving in the Fifth Circuit. When OCR investigates complaints 
involving schools in States in the Fifth Circuit (Texas, Louisiana, and 
Mississippi), it will in each case determine and follow the current 
applicable law, even if it is inconsistent with OCR policy. OCR will 
also participate where appropriate, and in conjunction with the 
Department of Justice, to shape the evolution of Title IX law in a 
manner consistent with the Guidance.
    Inconsistent decisions do not prohibit schools in States in the 
Fifth Circuit from following the Guidance. Since the Guidance assists 
school in ensuring that students can learn in a safe and 
nondiscriminatory educational environment, it is the better practice 
for these schools to follow the Guidance. Indeed, in light of the 
evolving case law in the Fifth Circuit, following the Guidance may also 
be the safest way to ensure compliance with the requirements of Title 
IX. School personnel in States in the Fifth Circuit should also 
consider whether State, local, or other Federal authority affects their 
obligations in these areas.

Notice

    Comments: Several commenters recommended that additional guidance 
be provided regarding the types of employees through which a school can 
receive notice of sexual harassment. Commenters disagreed, however, on 
who should be able to receive notice. For instance, some commenters 
stated that OCR should find that a school has received notice only if 
``managerial'' employees, ``designated'' employees, or employees with 
the authority to correct the harassment receive notice of the 
harassment. Another commenter suggested, by contrast, that any school 
employee should be considered a

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

Remedying the Effects of Harassment on Students

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

Confidentiality

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

FERPA

    Comments: Several commenters stated that the Department should 
change its position that FERPA could prevent a school from informing a 
complainant of the sanction or discipline imposed on a student found 
guilty of harassment. Some commenters

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

Does Title IX Require Schools to Have a Sexual Harassment Policy

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

    Dated: March 10, 1997.
Norma V. Cantu,
Assistant Secretary for Civil Rights.

Sexual Harassment Guidance: Harassment of Students \1\ by School 
Employees, Other Students, or Third Parties

Summary of Contents

Introduction
Applicability of Title IX
Liability of a School for Sexual Harassment
Welcomeness
Severe, Persistent, or Pervasive
Notice
Recipient's Response
Prompt and Equitable Grievance Procedures
First Amendment

Introduction

    Under Title IX of the Education Amendments of 1972 (Title IX) and 
its implementing regulations, no individual may be discriminated 
against on the basis of sex in any education program or activity 
receiving Federal financial assistance.\2\ Sexual harassment of 
students is a form of prohibited sex discrimination \3\ under the 
circumstances described in the Guidance. The following types of conduct 
constitute sexual harassment:

Quid Pro Quo Harassment

    A school employee \4\ explicitly or implicitly conditions a 
student's participation in an education program or activity or bases an 
educational decision on the student's submission to unwelcome sexual 
advances, requests for sexual favors, or other verbal, nonverbal, or 
physical conduct of a sexual nature.\5\ Quid pro quo harassment is 
equally unlawful whether the student resists and suffers the threatened 
harm or submits and thus avoids the threatened harm.

Hostile Environment Sexual Harassment

    Sexually harassing conduct (which can include unwelcome sexual 
advances, requests for sexual favors, and other verbal, nonverbal, or 
physical conduct of a sexual nature) \6\ by an employee, by another 
student, or by a third party that is sufficiently severe, persistent, 
or pervasive to limit a student's ability to participate in or benefit 
from an education program or activity, or to create a hostile or 
abusive educational environment.\7\
    Schools are required by the Title IX regulations to have grievance 
procedures through which students can complain of alleged sex 
discrimination, including sexual harassment.\8\ As outlined in this 
guidance, grievance procedures also provide schools with an excellent 
mechanism to be used in their efforts to prevent sexual harassment 
before it occurs.
    Finally, if the alleged harassment involves issues of speech or 
expression, a school's obligations may be affected by the application 
of First Amendment principles.
    These and other issues are discussed in more detail in the 
following paragraphs.

Applicability of Title IX

    Title IX applies to all public and private educational institutions 
that receive Federal funds, including elementary and secondary schools, 
school districts, proprietary schools, colleges, and universities. The 
Guidance uses the term ``schools'' to refer to all those institutions. 
The ``education program or activity'' of a school includes all of the 
school's operations.\9\ This means that Title IX protects students in 
connection with all of the academic, educational, extra-curricular, 
athletic, and other programs of the school, whether they take place in 
the facilities of the school, on a school bus, at a class or training 
program sponsored by the school at another location, or elsewhere.
    It is important to recognize that Title IX's prohibition of sexual 
harassment does not extend to legitimate nonsexual touching or other 
nonsexual conduct. For example, a high school athletic coach hugging a 
student who made a goal or a kindergarten teacher's consoling hug for a 
child with a skinned knee will not be considered sexual harassment.\10\ 
Similarly, one student's demonstration of a sports maneuver or

[[Page 12039]]

technique requiring contact with another student will not be considered 
sexual harassment. However, in some circumstances, nonsexual conduct 
may take on sexual connotations and may rise to the level of sexual 
harassment. For example, a teacher's repeatedly hugging and putting his 
or her arms around students under inappropriate circumstances could 
create a hostile environment.
    Title IX protects any ``person'' from sex discrimination; 
accordingly both male and female students are protected from sexual 
harassment engaged in by a school's employees, other students, or third 
parties.\11\ Moreover, Title IX prohibits sexual harassment regardless 
of the sex of the harasser, i.e., even if the harasser and the person 
being harassed are members of the same sex.\12\ An example would be a 
campaign of sexually explicit graffiti directed at a particular girl by 
other girls.\13\
    Although Title IX does not prohibit discrimination on the basis of 
sexual orientation,\14\ sexual harassment directed at gay or lesbian 
students may constitute sexual harassment prohibited by Title IX. For 
example, if students heckle another student with comments based on the 
student's sexual orientation (e.g., ``gay students are not welcome at 
this table in the cafeteria''), but their actions or language do not 
involve sexual conduct, their actions would not be sexual harassment 
covered by Title IX. On the other hand, harassing conduct of a sexual 
nature directed toward gay or lesbian students (e.g., if a male student 
or a group of male students target a lesbian student for physical 
sexual advances) may create a sexually hostile environment and, 
therefore, may be prohibited by Title IX. It should be noted that some 
State and local laws may prohibit discrimination on the basis of sexual 
orientation. Also, under certain circumstances, courts may permit 
redress for harassment on the basis of sexual orientation under other 
Federal legal authority.\15\
    It is also important to recognize that gender-based harassment, 
which may include acts of verbal, nonverbal, or physical aggression, 
intimidation, or hostility based on sex, but not involving conduct of a 
sexual nature, may be a form of sex discrimination that violates Title 
IX if it is sufficiently severe, persistent, or pervasive and directed 
at individuals because of their sex.\16\ For example, the repeated 
sabotaging of female graduate students' laboratory experiments by male 
students in the class could be the basis of a violation of Title IX. 
Although a comprehensive discussion of gender-based harassment is 
beyond the scope of this Guidance, in assessing all related 
circumstances to determine whether a hostile environment exists, 
incidents of gender-based harassment combined with incidents of sexual 
harassment could create a hostile environment, even if neither the 
gender-based harassment alone nor the sexual harassment alone would be 
sufficient to do so.\17\

Liability of a School for Sexual Harassment

Liability of a School for Sexual Harassment by its Employees

    A school's liability for sexual harassment by its employees is 
determined by application of agency principles,\18\ i.e., by principles 
governing the delegation of authority to or authorization of another 
person to act on one's behalf.
    Accordingly, a school will always be liable for even one instance 
of quid pro quo harassment by a school employee in a position of 
authority, such as a teacher or administrator, whether or not it knew, 
should have known, or approved of the harassment at issue.\19\ Under 
agency principles, if a teacher or other employee uses the authority he 
or she is given (e.g., to assign grades) to force a student to submit 
to sexual demands, the employee ``stands in the shoes'' of the school 
and the school will be responsible for the use of its authority by the 
employee or agent.\20\
    A school will also be liable for hostile environment sexual 
harassment by its employees,\21\ i.e., for harassment that is 
sufficiently severe, persistent, or pervasive to limit a student's 
ability to participate in or benefit from the education program or to 
create a hostile or abusive educational environment if the employee-- 
(1) acted with apparent authority (i.e., because of the school's 
conduct, the employee reasonably appears to be acting on behalf of the 
school, whether or not the employee acted with authority); \22\ or (2) 
was aided in carrying out the sexual harassment of students by his or 
her position of authority with the institution.\23\ For example, a 
school will be liable if a teacher abuses his or her delegated 
authority over a student to create a hostile environment, such as if 
the teacher implicitly threatens to fail a student unless the student 
responds to his or her sexual advances, even though the teacher fails 
to carry out the threat.\24\
    As this example illustrates, in many cases the line between quid 
pro quo and hostile environment discrimination will be blurred, and the 
employee's conduct may constitute both types of harassment. However, 
what is important is that the school is liable for that conduct under 
application of agency principles, regardless of whether it is labeled 
as quid pro quo or hostile environment harassment.
    Whether other employees, such as a janitor or cafeteria worker, are 
in positions of authority in relation to students--or whether it would 
be reasonable for the student to believe the employees are, even if the 
employees are not (i.e., apparent authority)--will depend on factors 
such as the authority actually given to the employee 25 (e.g., in 
some elementary schools, a cafeteria worker may have authority to 
impose discipline) and the age of the student. For example, in some 
cases the younger a student is, the more likely it is that he or she 
will consider any adult employee to be in a position of authority.
    Even in situations not involving (i) quid pro quo harassment, (ii) 
creation of a hostile environment through an employee's apparent 
authority, or (iii) creation of a hostile environment in which the 
employee is aided in carrying out the sexual harassment by his or her 
position of authority, a school will be liable for sexual harassment of 
its students by its employees under the same standards applicable to 
peer and third party hostile environment sexual harassment, as 
discussed in the next section. That is, if the school fails to take 
immediate and appropriate steps to remedy known harassment, then the 
school will be liable under Title IX.26 It is important to 
emphasize that under this standard of liability the school can avoid 
violating Title IX if it takes immediate and appropriate action upon 
notice of the harassment.

Liability of a School for Peer or Third Party Harassment 27

    In contrast to the variety of situations in which a school may be 
liable for sexual harassment by its employees, a school will be liable 
under Title IX if its students sexually harass other students if (i) a 
hostile environment exists in the school's programs or activities, (ii) 
the school knows or should have known of the harassment, and (iii) the 
school fails to take immediate and appropriate corrective 
action.28 (Each of these factors is discussed in detail in 
subsequent sections of the Guidance.) Under these circumstances, a 
school's failure to respond to the existence of a hostile environment 
within its own programs or activities permits an atmosphere of sexual 
discrimination to permeate the educational program and results in 
discrimination prohibited by Title IX. Conversely, if, upon notice of 
hostile environment harassment, a school takes immediate and 
appropriate

[[Page 12040]]

steps to remedy the hostile environment, the school has avoided 
violating Title IX. Thus, Title IX does not make a school responsible 
for the actions of harassing students, but rather for its own 
discrimination in failing to remedy it once the school has notice.
    Sexually harassing conduct of third parties, who are not themselves 
employees or students at the school (e.g., a visiting speaker or 
members of a visiting athletic club) can also cause a sexually hostile 
environment in school programs or activities. For the same reason that 
a school will be liable under Title IX for a hostile environment caused 
by its students, a school will be liable if third parties sexually 
harass its students if (i) a hostile environment exists in the school's 
programs or activities, (ii) the school knows or should have known of 
the harassment, and (iii) the school fails to take immediate and 
appropriate corrective action.29 However, the type of appropriate 
steps the school should take will differ depending on the level of 
control the school has over the third party harasser.30 This issue 
is discussed in ``Recipient's Response.''

Effect of Grievance Procedures on Liability

    Schools are required by the Title IX regulations to adopt and 
publish grievance procedures providing for prompt and equitable 
resolution of sex discrimination complaints, including complaints of 
sexual harassment, and to disseminate a policy against sex 
discrimination.31 (These issues are discussed in the section on 
``Prompt and Equitable Grievance Procedures.'') These procedures 
provide a school with a mechanism for discovering sexual harassment as 
early as possible and for effectively correcting problems, as required 
by Title IX. By having a strong policy against sex discrimination and 
accessible, effective, and fairly applied grievance procedures, a 
school is telling its students that it does not tolerate sexual 
harassment and that students can report it without fear of adverse 
consequences.
    Accordingly, in the absence of effective policies and grievance 
procedures, if the alleged harassment was sufficiently severe, 
persistent, or pervasive to create a hostile environment, a school will 
be in violation of Title IX because of the existence of a hostile 
environment, even if the school was not aware of the harassment and 
thus failed to remedy it.32 This is because, without a policy and 
procedure, a student does not know either of the school's interest in 
preventing this form of discrimination or how to report harassment so 
that it can be remedied. Moreover, under the agency principles 
previously discussed, a school's failure to implement effective 
policies and procedures against discrimination may create apparent 
authority for school employees to harass students.33

OCR Case Resolution

    If OCR is asked to investigate or otherwise resolve incidents of 
sexual harassment of students, including incidents caused by employees, 
other students, or third parties, OCR will consider whether--(1) the 
school has a policy prohibiting sex discrimination under Title IX and 
effective Title IX grievance procedures; 34 (2) the school 
appropriately investigated or otherwise responded to allegations of 
sexual harassment; and (3) the school has taken immediate and 
appropriate corrective action responsive to quid pro quo or hostile 
environment harassment. (Issues related to appropriate investigative 
and corrective actions are discussed in detail in the section on 
``Recipient's Response.'') If the school has taken each of these steps, 
OCR will consider the case against the school resolved and take no 
further action other than monitoring compliance with any agreement 
between the school and OCR. This is true in cases in which the school 
was in violation of Title IX, as well as those in which there has been 
no violation of Title IX. 35

Welcomeness

    In order to be actionable as harassment, sexual conduct must be 
unwelcome. Conduct is unwelcome if the student did not request or 
invite it and ``regarded the conduct as undesirable or offensive.'' 
36 Acquiescence in the conduct or the failure to complain does not 
always mean that the conduct was welcome.37 For example, a student 
may decide not to resist sexual advances of another student or may not 
file a complaint out of fear. In addition, a student may not object to 
a pattern of sexually demeaning comments directed at him or her by a 
group of students out of a concern that objections might cause the 
harassers to make more comments. The fact that a student may have 
accepted the conduct does not mean that he or she welcomed it.38 
Also, the fact that a student willingly participated in conduct on one 
occasion does not prevent him or her from indicating that the same 
conduct has become unwelcome on a subsequent occasion. On the other 
hand, if a student actively participates in sexual banter and 
discussions and gives no indication that he or she objects, then the 
evidence generally will not support a conclusion that the conduct was 
unwelcome.39
    If younger children are involved, it may be necessary to determine 
the degree to which they are able to recognize that certain sexual 
conduct is conduct to which they can or should reasonably object and 
the degree to which they can articulate an objection. Accordingly, OCR 
will consider the age of the student, the nature of the conduct 
involved, and other relevant factors in determining whether a student 
had the capacity to welcome sexual conduct.
    Schools should be particularly concerned about the issue of 
welcomeness if the harasser is in a position of authority. For 
instance, because students may be encouraged to believe that a teacher 
has absolute authority over the operation of his or her classroom, a 
student may not object to a teacher's sexually harassing comments 
during class; however, this does not necessarily mean that the conduct 
was welcome. Instead, the student may believe that any objections would 
be ineffective in stopping the harassment or may fear that by making 
objections he or she will be singled out for harassing comments or 
other retaliation.
    In addition, OCR must consider particular issues of welcomeness if 
the alleged harassment relates to alleged ``consensual'' sexual 
relationships between a school's adult employees and its students. If 
elementary students are involved, welcomeness will not be an issue: OCR 
will never view sexual conduct between an adult school employee and an 
elementary school student as consensual. In cases involving secondary 
students, there will be a strong presumption that sexual conduct 
between an adult school employee and a student is not consensual. In 
cases involving older secondary students, subject to the presumption, 
40 OCR will consider a number of factors in determining whether a 
school employee's sexual advances or other sexual conduct could be 
considered welcome.41 In addition, OCR will consider these factors 
in all cases involving postsecondary students in making those 
determinations.42 The factors include:
     The nature of the conduct and the relationship of the 
school employee to the student, including the degree of influence 
(which could, at least in part, be affected by the student's age), 
authority, or control the employee has over the student.
     Whether the student was legally or practically unable to 
consent to the sexual conduct in question. For

[[Page 12041]]

example, a student's age could affect his or her ability to do so. 
Similarly, certain types of disabilities could affect a student's 
ability to do so.
    If there is a dispute about whether harassment occurred or whether 
it was welcome--in a case in which it is appropriate to consider 
whether the conduct could be welcome--determinations should be made 
based on the totality of the circumstances. The following types of 
information may be helpful in resolving the dispute:
     Statements by any witnesses to the alleged incident.
     Evidence about the relative credibility of the allegedly 
harassed student and the alleged harasser. For example, the level of 
detail and consistency of each person's account should be compared in 
an attempt to determine who is telling the truth. Another way to assess 
credibility is to see if corroborative evidence is lacking where it 
should logically exist. However, the absence of witnesses may indicate 
only the unwillingness of others to step forward, perhaps due to fear 
of the harasser or a desire not to get involved.
     Evidence that the alleged harasser has been found to have 
harassed others may support the credibility of the student claiming the 
harassment; conversely, the student's claim will be weakened if he or 
she has been found to have made false allegations against other 
individuals.
     Evidence of the allegedly harassed student's reaction or 
behavior after the alleged harassment. For example, were there 
witnesses who saw the student immediately after the alleged incident 
who say that the student appeared to be upset? However, it is important 
to note that some students may respond to harassment in ways that do 
not manifest themselves right away, but may surface several days or 
weeks after the harassment. For example, a student may initially show 
no signs of having been harassed, but several weeks after the 
harassment, there may be significant changes in the student's behavior, 
including difficulty concentrating on academic work, symptoms of 
depression, and a desire to avoid certain individuals and places at 
school.
     Evidence about whether the student claiming harassment 
filed a complaint or took other action to protest the conduct soon 
after the alleged incident occurred. However, failure to immediately 
complain may merely reflect a fear of retaliation or a fear that the 
complainant may not be believed rather than that the alleged harassment 
did not occur.
     Other contemporaneous evidence. For example, did the 
student claiming harassment write about the conduct, and his or her 
reaction to it, soon after it occurred (e.g., in a diary or letter)? 
Did the student tell others (friends, parents) about the conduct (and 
his or her reaction to it) soon after it occurred?

Severe, Persistent, or Pervasive

    Hostile environment sexual harassment of a student or students by 
other students, employees, or third parties is created if conduct of a 
sexual nature is sufficiently severe, persistent, or pervasive to limit 
a student's ability to participate in or benefit from the education 
program or to create a hostile or abusive educational environment. 
Thus, conduct that is sufficiently severe, but not persistent or 
pervasive, can result in hostile environment sexual harassment.
    In deciding whether conduct is sufficiently severe, persistent, or 
pervasive, the conduct should be considered from both a subjective 
43 and objective 44 perspective. In making this 
determination, all relevant circumstances should be considered 45:
     The degree to which the conduct affected one or more 
students' education. For a hostile environment to exist, the conduct 
must have limited the ability of a student to participate in or benefit 
from his or her education or altered the conditions of the student's 
educational environment.46
     Many hostile environment cases involve tangible or 
obvious injuries.47 For example, a student's grades may go down or 
the student may be forced to withdraw from school because of the 
harassing behavior.48 A student may also suffer physical injuries 
and mental or emotional distress.49
     However, a hostile environment may exist even if 
there is no tangible injury to the student.50 For example, a 
student may have been able to keep up his or her grades and continue to 
attend school even though it was more difficult for him or her to do so 
because of the harassing behavior.51 A student may be able to 
remain on a sports team, despite feeling humiliated or angered by 
harassment that creates a hostile environment.52 Harassing conduct 
in these examples alters the student's educational environment on the 
basis of sex.
     A hostile environment can occur even if the 
harassment is not targeted specifically at the individual 
complainant.53 For example, if a student or group of students 
regularly directs sexual comments toward a particular student, a 
hostile environment may be created not only for the targeted student, 
but also for others who witness the conduct. Similarly, if a middle 
school teacher directs sexual comments toward a particular student, a 
hostile environment may be created for the targeted student and for the 
students who witness the conduct.
     The type, frequency, and duration of the conduct. In most 
cases, a hostile environment will exist if there is a pattern or 
practice of harassment or if the harassment is sustained and 
nontrivial.54 For instance, if a young woman is taunted by one or 
more young men about her breasts or genital area or both, OCR may find 
that a hostile environment has been created, particularly if the 
conduct has gone on for some time, takes place throughout the school, 
or if the taunts are made by a number of students. The more severe the 
conduct, the less the need to show a repetitive series of incidents; 
this is particularly true if the harassment is physical. For instance, 
if the conduct is more severe, e.g., attempts to grab a female 
student's breasts, genital area, or buttocks, it need not be as 
persistent or pervasive in order to create a hostile environment. 
Indeed, a single or isolated incident of sexual harassment may, if 
sufficiently severe, create a hostile environment.55 On the other 
hand, conduct that is not severe, persistent, or pervasive will not 
create a hostile environment; e.g., a comment by one student to another 
student that she has a nice figure. Indeed, depending on the 
circumstances, this may not even be conduct of a sexual nature.56 
Similarly, because students date one another, a request for a date or a 
gift of flowers, even if unwelcome, would not create a hostile 
environment. However, there may be circumstances in which repeated, 
unwelcome requests for dates or similar conduct could create a hostile 
environment. For example, a person may request dates in an intimidating 
or threatening manner.
     The identity of and relationship between the alleged 
harasser and the subject or subjects of the harassment. A factor to be 
considered, especially in cases involving allegations of sexual 
harassment of a student by a school employee, is the identity of and 
relationship between the alleged harasser and the subject or subjects 
of the harassment. For example, due to the power that a professor or 
teacher has over a student, sexually based conduct by that person 
toward a student is more likely to create a hostile environment than 
similar conduct by another student.57
     The number of individuals involved. Sexual harassment may 
be committed by an individual or a group.

[[Page 12042]]

In some cases, verbal comments or other conduct from one person might 
not be sufficient to create a hostile environment, but could be if done 
by a group. Similarly, while harassment can be directed toward an 
individual or a group,58 the effect of the conduct toward a group 
may vary, depending on the type of conduct and the context. For certain 
types of conduct, there may be ``safety in numbers.'' For example, 
following an individual student and making sexual taunts to him or her 
may be very intimidating to that student but, in certain circumstances, 
less so to a group of students. On the other hand, persistent unwelcome 
sexual conduct still may create a hostile environment if directed 
toward a group.
     The age and sex of the alleged harasser and the subject or 
subjects of the harassment. For example, in the case of younger 
students, sexually harassing conduct is more likely to be intimidating 
if coming from an older student.59
     The size of the school, location of the incidents, and 
context in which they occurred. Depending on the circumstances of a 
particular case, fewer incidents may have a greater effect at a small 
college than at a large university campus. Harassing conduct occurring 
on a school bus may be more intimidating than similar conduct on a 
school playground because the restricted area makes it impossible for 
the students to avoid their harassers.60 Harassing conduct in a 
personal or secluded area such as a dormitory room or residence hall 
can also have a greater effect (e.g., be seen as more threatening) than 
would similar conduct in a more public area. On the other hand, 
harassing conduct in a public place may be more humiliating. Each 
incident must be judged individually.
     Other incidents at the school. A series of instances at 
the school, not involving the same students, could--taken together--
create a hostile environment, even if each by itself would not be 
sufficient.61
     Incidents of gender-based, but non-sexual, harassment. 
Acts of verbal, nonverbal, or physical aggression, intimidation, or 
hostility based on sex, but not involving sexual activity or language, 
can be combined with incidents of sexual harassment to determine if the 
incidents of sexual harassment are sufficiently severe, persistent, or 
pervasive to create a sexually hostile environment.62

Notice

    A school will be in violation of Title IX if the school ``has 
notice'' of a sexually hostile environment and fails to take immediate 
and appropriate corrective action.63 A school has notice if it 
actually ``knew, or in the exercise of reasonable care, should have 
known'' about the harassment.64 In addition, as long as an agent 
or responsible employee of the school received notice,65 the 
school has notice.
    A school can receive notice in many different ways. A student may 
have filed a grievance or complained to a teacher about fellow students 
sexually harassing him or her. A student, parent, or other individual 
may have contacted other appropriate personnel, such as a principal, 
campus security, bus driver, teacher, an affirmative action officer, or 
staff in the office of student affairs. An agent or responsible 
employee of the school may have witnessed the harassment. The school 
may receive notice in an indirect manner, from sources such as a member 
of the school staff, a member of the educational or local community, or 
the media. The school also may have received notice from flyers about 
the incident or incidents posted around the school.66
    Constructive notice exists if the school ``should have'' known 
about the harassment--if the school would have found out about the 
harassment through a ``reasonably diligent inquiry.'' 67 For 
example, if a school knows of some incidents of harassment, there may 
be situations in which it will be charged with notice of others--if the 
known incidents should have triggered an investigation that would have 
led to a discovery of the additional incidents. In other cases, the 
pervasiveness of the harassment may be enough to conclude that the 
school should have known of the hostile environment--if the harassment 
is widespread, openly practiced, or well-known to students and staff 
(such as sexual harassment occurring in hallways, graffiti in public 
areas, or harassment occurring during recess under a teacher's 
supervision).68
    In addition, if a school otherwise has actual or constructive 
notice of a hostile environment and fails to take immediate and 
appropriate corrective action, a school has violated Title IX even if 
the student fails to use the school's existing grievance procedures.

Recipient's Response

    Once a school has notice of possible sexual harassment of 
students--whether carried out by employees, other students, or third 
parties--it should take immediate and appropriate steps to investigate 
or otherwise determine what occurred and take steps reasonably 
calculated to end any harassment, eliminate a hostile environment if 
one has been created, and prevent harassment from occurring again. 
These steps are the school's responsibility whether or not the student 
who was harassed makes a complaint or otherwise asks the school to take 
action.69 As described in the next section, in appropriate 
circumstances the school will also be responsible for taking steps to 
remedy the effects of the harassment on the individual student or 
students who were harassed. What constitutes a reasonable response to 
information about possible sexual harassment will differ depending upon 
the circumstances.

Response to Student or Parent Reports of Harassment; Response to Direct 
Observation by a Responsible Employee or Agent of Harassment

    If a student or the parent of an elementary or secondary student 
provides information or complains about sexual harassment of the 
student, the school should initially discuss what actions the student 
or parent is seeking in response to the harassment. The school should 
explain the avenues for informal and formal action, including a 
description of the grievance procedure that is available for sexual 
harassment complaints and an explanation of how the procedure works. If 
a responsible school employee or agent has directly observed sexual 
harassment of a student, the school should contact the student who was 
harassed (or the parent, depending upon the age of the student), 
70 explain that the school is responsible for taking steps to 
correct the harassment, and provide the same information described in 
the previous sentence.
    Regardless of whether the student who was harassed, or his or her 
parent, decides to file a formal complaint or otherwise request action 
on the student's behalf (including in cases involving direct 
observation by a responsible school employee or agent), the school must 
promptly investigate to determine what occurred and then take 
appropriate steps to resolve the situation. The specific steps in an 
investigation will vary depending upon the nature of the allegations, 
the source of the complaint, the age of the student or students 
involved, the size and administrative structure of the school, and 
other factors. However, in all cases the inquiry must be prompt, 
thorough, and impartial. (Requests by the student who was harassed for 
confidentiality or for no action to be taken, responding to notice of 
harassment from other sources, and the components of a prompt and 
equitable grievance procedure are discussed in subsequent sections of 
the Guidance.)

[[Page 12043]]

    It may be appropriate for a school to take interim measures during 
the investigation of a complaint. For instance, if a student alleges 
that he or she has been sexually assaulted by another student, the 
school may decide to immediately place the students in separate classes 
or in different housing arrangements on a campus, pending the results 
of the school's investigation. Similarly, if the alleged harasser is a 
teacher, allowing the student to transfer to a different class may be 
appropriate. In cases involving potential criminal conduct, school 
personnel should determine whether appropriate law enforcement 
authorities should be notified. In all cases, schools should make every 
effort to prevent public disclosure of the names of all parties 
involved, except to the extent necessary to carry out an investigation.
    If a school determines that sexual harassment has occurred, it 
should take reasonable, timely, age-appropriate, and effective 
corrective action, including steps tailored to the specific situation. 
71 Appropriate steps should be taken to end the harassment. For 
example, school personnel may need to counsel, warn, or take 
disciplinary action against the harasser, based on the severity of the 
harassment or any record of prior incidents or both. 72 A series 
of escalating consequences may be necessary if the initial steps are 
ineffective in stopping the harassment. 73 In some cases, it may 
be appropriate to further separate the harassed student and the 
harasser, e.g., by changing housing arrangements 74 or directing 
the harasser to have no further contact with the harassed student. 
Responsive measures of this type should be designed to minimize, as 
much as possible, the burden on the student who was harassed. If the 
alleged harasser is not a student or employee of the recipient, OCR 
will consider the level of control the school has over the harasser in 
determining what response would be appropriate 75.
    Steps also should be taken to eliminate any hostile environment 
that has been created. For example, if a female student has been 
subjected to harassment by a group of other students in a class, the 
school may need to deliver special training or other interventions for 
that class to repair the educational environment. If the school offers 
the student the option of withdrawing from a class in which a hostile 
environment occurred, the school should assist the student in making 
program or schedule changes and ensure that none of the changes 
adversely affect the student's academic record. Other measures may 
include, if appropriate, directing a harasser to apologize to the 
harassed student. If a hostile environment has affected an entire 
school or campus, an effective response may need to include 
dissemination of information, the issuance of new policy statements, or 
other steps that are designed to clearly communicate the message that 
the school does not tolerate harassment and will be responsive to any 
student who reports that conduct.
    In some situations, a school may be required to provide other 
services to the student who was harassed if necessary to address the 
effects of the harassment on that student. 76 For example, if an 
instructor gives a student a low grade because the student failed to 
respond to his sexual advances, this constitutes quid pro quo 
harassment for which the school is liable under Title IX regardless of 
whether it knew of the harassment. Thus, the school may be required to 
make arrangements for an independent reassessment of the student's 
work, if feasible, and change the grade accordingly; make arrangements 
for the student to take the course again with a different instructor; 
provide tutoring; make tuition adjustments; offer reimbursement for 
professional counseling; or take other measures that are appropriate to 
the circumstances. As another example, if a school delays responding or 
responds inappropriately to information about harassment, such as a 
case in which the school ignores complaints by a student that he or she 
is being sexually harassed by a classmate, the school will be required 
to remedy the effects of the harassment that could have been prevented 
had the school responded promptly and appropriately.
    Finally, a school should take steps to prevent any further 
harassment 77 and to prevent any retaliation against the student 
who made the complaint (or was the subject of the harassment), against 
a person who filed a complaint on behalf of a student, or against those 
who provided information as witnesses.78 At a minimum, this 
includes making sure that the harassed students and their parents know 
how to report any subsequent problems and making follow-up inquiries to 
see if there have been any new incidents or any retaliation. To prevent 
recurrences, counseling for the harasser may be appropriate to ensure 
that he or she understands what constitutes harassment and the effects 
it can have. In addition, depending on how widespread the harassment 
was and whether there have been any prior incidents, the school may 
need to provide training for the larger school community to ensure that 
students, parents, and teachers can recognize harassment if it recurs 
and know how to respond.79

Requests by the Harassed Student for Confidentiality

    The scope of a reasonable response also may depend upon whether a 
student, or parent of a minor student, reporting harassment asks that 
the student's name not be disclosed to the harasser or that nothing be 
done about the alleged harassment. In all cases a school should discuss 
confidentiality standards and concerns with the complainant initially. 
The school should inform the student that the request may limit the 
school's ability to respond. The school also should tell the student 
that Title IX prohibits retaliation and that, if he or she is afraid of 
reprisals from the alleged harasser, the school will take steps to try 
to prevent retaliation and will take strong responsive actions if 
retaliation occurs. If the student continues to ask that his or her 
name not be revealed, the school should take all reasonable steps to 
investigate and respond to the complaint consistent with that request 
as long as doing so does not preclude the school from responding 
effectively to the harassment and preventing harassment of other 
students. Thus, for example, a reasonable response would not require 
disciplinary action against an alleged harasser if a student, who was 
the only student harassed, insists that his or her name not be 
revealed, and the alleged harasser could not respond to the charges of 
sexual harassment without that information.
    At the same time, a school should evaluate the confidentiality 
request in the context of its responsibility to provide a safe and 
nondiscriminatory environment for all students. The factors a school 
may consider in this regard include the seriousness of the alleged 
harassment, the age of the student harassed, whether there have been 
other complaints or reports of harassment against the alleged harasser, 
and the rights of the accused individual to receive information about 
the accuser and the allegations if a formal proceeding with sanctions 
may result.80
    Although a student's request to have his or her name withheld may 
limit the school's ability to respond fully to an individual complaint 
of harassment, other means may be available to address the harassment. 
There are steps a recipient can take to limit the effects of the 
alleged harassment and prevent its recurrence without initiating formal 
action against the alleged harasser or revealing the identity of the

[[Page 12044]]

complainant. Examples include conducting sexual harassment training for 
the school site or academic department where the problem occurred, 
taking a student survey concerning any problems with harassment, or 
implementing other systemic measures at the site or department where 
the alleged harassment has occurred.
    In addition, by investigating the complaint to the extent 
possible--including by reporting it to the Title IX coordinator or 
other responsible school employee designated pursuant to Title IX--the 
school may learn about or be able to confirm a pattern of harassment 
based on claims by different students that they were harassed by the 
same individual. In some situations there may be prior reports by 
former students who now might be willing to come forward and be 
identified, thus providing a basis for further corrective action. In 
instances affecting a number of students (for example, a report from a 
student that an instructor has repeatedly made sexually explicit 
remarks about his or her personal life in front of an entire class), an 
individual can be put on notice of allegations of harassing behavior 
and counseled appropriately without revealing, even indirectly, the 
identity of the student who notified the school. Those steps can be 
very effective in preventing further harassment.

Response to Other Types of Notice

    The previous two sections deal with situations in which a student 
or parent of a student who was harassed reports or complains of 
harassment or in which a responsible school employee or agent directly 
observes sexual harassment of a student. If a school learns of 
harassment through other means, for example if information about 
harassment is received from a third party (such as from a witness to an 
incident or an anonymous letter or telephone call), different factors 
will affect the school's response. These factors include the source and 
nature of the information; the seriousness of the alleged incident; the 
specificity of the information; the objectivity and credibility of the 
source of the report; whether any individuals can be identified who 
were subjected to the alleged harassment; and whether those individuals 
want to pursue the matter. If, based on these factors, it is reasonable 
for the school to investigate and it can confirm the allegations, the 
considerations described in the previous sections concerning interim 
measures and appropriate responsive action will apply.
    For example, if a parent visiting a school observes a student 
repeatedly harassing a group of female students and reports this to 
school officials, school personnel can speak with the female students 
to confirm whether that conduct has occurred and whether they view it 
as unwelcome. If the school determines that the conduct created a 
hostile environment, it can take reasonable, age-appropriate steps to 
address the situation. If, on the other hand, the students in this 
example were to ask that their names not be disclosed or indicate that 
they do not want to pursue the matter, the considerations described in 
the previous section related to requests for confidentiality will shape 
the school's response.
    In a contrasting example, a student newspaper at a large university 
may print an anonymous letter claiming that a professor is sexually 
harassing students in class on a daily basis, but the letter provides 
no clue as to the identity of the professor or the department in which 
the conduct is allegedly taking place. Due to the anonymous source and 
lack of specificity of the information, a school would not reasonably 
be able to investigate and confirm these allegations. However, in 
response to the anonymous letter, the school could submit a letter or 
article to the newspaper reiterating its policy against sexual 
harassment, encouraging persons who believe that they have been 
sexually harassed to come forward, and explaining how its grievance 
procedures work.

Prevention

    A policy specifically prohibiting sexual harassment and separate 
grievance procedures for violations of that policy can help ensure that 
all students and employees understand the nature of sexual harassment 
and that the school will not tolerate it. Indeed, they might even bring 
conduct of a sexual nature to the school's attention so that the school 
can address it before it becomes sufficiently severe, persistent, or 
pervasive to create a hostile environment. Further, training for 
administrators, teachers, and staff and age-appropriate classroom 
information for students can help to ensure that they understand what 
types of conduct can cause sexual harassment and that they know how to 
respond.

Prompt and Equitable Grievance Procedures

    Schools are required by Title IX to adopt and publish a policy 
against sex discrimination and grievance procedures providing for 
prompt and equitable resolution of complaints of discrimination on the 
basis of sex. 81 Accordingly, regardless of whether harassment 
occurred, a school violates this requirement of Title IX if it does not 
have those procedures and policy in place.82
    A school's sex discrimination grievance procedures must apply to 
complaints of sex discrimination in the school's education programs and 
activities filed by students against school employees, other students, 
or third parties.83 Title IX does not require a school to adopt a 
policy specifically prohibiting sexual harassment or to provide 
separate grievance procedures for sexual harassment complaints. 
However, its nondiscrimination policy and grievance procedures for 
handling discrimination complaints must provide effective means for 
preventing and responding to sexual harassment. Thus, if, because of 
the lack of a policy or procedure specifically addressing sexual 
harassment, students are unaware of what kind of conduct constitutes 
sexual harassment or that that conduct is prohibited sex 
discrimination, a school's general policy and procedures relating to 
sex discrimination complaints will not be considered effective.84
    OCR has identified a number of elements in evaluating whether a 
school's grievance procedures are prompt and equitable, including 
whether the procedures provide for--
    (1) Notice to students, parents of elementary and secondary 
students, and employees of the procedure, including where complaints 
may be filed;
    (2) Application of the procedure to complaints alleging harassment 
carried out by employees, other students, or third parties;
    (3) Adequate, reliable, and impartial investigation of complaints, 
including the opportunity to present witnesses and other evidence;
    (4) Designated and reasonably prompt timeframes for the major 
stages of the complaint process;
    (5) Notice to the parties of the outcome of the complaint; 85 
and
    (6) An assurance that the school will take steps to prevent 
recurrence of any harassment and to correct its discriminatory effects 
on the complainant and others, if appropriate.86
    Many schools also provide an opportunity to appeal the findings or 
remedy or both. In addition, because retaliation is prohibited by Title 
IX, schools may want to include a provision in their procedures 
prohibiting retaliation against any individual who files a complaint or 
participates in a harassment inquiry.

[[Page 12045]]

    Procedures adopted by schools will vary considerably in detail, 
specificity, and components, reflecting differences in audiences, 
school sizes and administrative structures, State or local legal 
requirements, and past experience. In addition, whether complaint 
resolutions are timely will vary depending on the complexity of the 
investigation and the severity and extent of the harassment. During the 
investigation it is a good practice for schools to inform students who 
have alleged harassment about the status of the investigation on a 
periodic basis.
    A grievance procedure applicable to sexual harassment complaints 
cannot be prompt or equitable unless students know it exists, how it 
works, and how to file a complaint. Thus, the procedures should be 
written in language appropriate to the age of the school's students, 
easily understood, and widely disseminated. Distributing the procedures 
to administrators, or including them in the school's administrative or 
policy manual, may not by itself be an effective way of providing 
notice, as these publications are usually not widely circulated to and 
understood by all members of the school community. Many schools ensure 
adequate notice to students by having copies of the procedures 
available at various locations throughout the school or campus; 
publishing the procedures as a separate document; including a summary 
of the procedures in major publications issued by the school, such as 
handbooks and catalogs for students, parents of elementary and 
secondary students, faculty, and staff; and identifying individuals who 
can explain how the procedures work.
    A school must designate at least one employee to coordinate its 
efforts to comply with and carry out its Title IX 
responsibilities.87 The school must notify all of its students and 
employees of the name, office address, and telephone number of the 
employee or employees designated.88 Because it is possible that an 
employee designated to handle Title IX complaints may him or herself 
engage in harassment, a school may want to designate more than one 
employee to be responsible for handling complaints in order to ensure 
that students have an effective means of reporting harassment.89 
While a school may choose to have a number of employees responsible for 
Title IX matters, it is also advisable to give one official 
responsibility for overall coordination and oversight of all sexual 
harassment complaints to ensure consistent practices and standards in 
handling complaints. Coordination of recordkeeping (for instance, in a 
confidential log maintained by the Title IX coordinator) will also 
ensure that the school can and will resolve recurring problems and 
identify students or employees who have multiple complaints filed 
against them.90 Finally, the school must make sure that all 
designated employees have adequate training as to what conduct 
constitutes sexual harassment and are able to explain how the grievance 
procedure operates.91
    Grievance procedures may include informal mechanisms for resolving 
sexual harassment complaints to be used if the parties agree to do 
so.92 OCR has frequently advised schools, however, that it is not 
appropriate for a student who is complaining of harassment to be 
required to work out the problem directly with the individual alleged 
to be harassing him or her, and certainly not without appropriate 
involvement by the school (e.g., participation by a counselor, trained 
mediator, or, if appropriate, a teacher or administrator). In addition, 
the complainant must be notified of the right to end the informal 
process at any time and begin the formal stage of the complaint 
process. In some cases, such as alleged sexual assaults, mediation will 
not be appropriate even on a voluntary basis. Title IX also permits the 
use of a student disciplinary procedure not designed specifically for 
Title IX grievances to resolve sex discrimination complaints, as long 
as the procedure meets the requirement of affording a complainant a 
``prompt and equitable'' resolution of the complaint.
    In some instances, a complainant may allege harassing conduct that 
constitutes both sex discrimination and possible criminal conduct. 
Police investigations or reports may be useful in terms of fact-
gathering. However, because legal standards for criminal conduct are 
different, police investigations or reports may not be determinative of 
whether harassment occurred under Title IX and do not relieve the 
school of its duty to respond promptly.93 Similarly, schools are 
cautioned about using the results of insurance company investigations 
of sexual harassment allegations. The purpose of an insurance 
investigation is to assess liability under the insurance policy, and 
the applicable standards may well be different from those under Title 
IX. In addition, a school is not relieved of its responsibility to 
respond to a sexual harassment complaint filed under its grievance 
procedure by the fact that a complaint has been filed with OCR.94
    Finally, a public school's employees may have certain due process 
rights under the United States Constitution. The Constitution also 
guarantees due process to students in public and State-supported 
schools who are accused of certain types of infractions. The rights 
established under Title IX must be interpreted consistently with any 
federally guaranteed rights involved in a complaint proceeding. In both 
public and private schools, additional or separate rights may be 
created for employees or students by State law, institutional 
regulations and policies, such as faculty or student handbooks, and 
collective bargaining agreements. Schools should be aware of these 
rights and their legal responsibilities to those accused of harassment. 
Indeed, procedures that ensure the Title IX rights of the complainant 
while at the same time according due process to both parties involved 
will lead to sound and supportable decisions. Schools should ensure 
that steps to accord due process rights do not restrict or 
unnecessarily delay the protections provided by Title IX to the 
complainant.

First Amendment

    In cases of alleged harassment, the protections of the First 
Amendment must be considered if issues of speech or expression are 
involved.95 Free speech rights apply in the classroom (e.g., 
classroom lectures and discussions) 96 and in all other education 
programs and activities of public schools (e.g., public meetings and 
speakers on campus; campus debates, school plays and other cultural 
events 97; and student newspapers, journals and other publications 
98). In addition, First Amendment rights apply to the speech of 
students and teachers.99
    Title IX is intended to protect students from sex discrimination, 
not to regulate the content of speech. OCR recognizes that the 
offensiveness of particular expression as perceived by some students, 
standing alone, is not a legally sufficient basis to establish a 
sexually hostile environment under Title IX. 100 In order to 
establish a violation of Title IX, the harassment must be sufficiently 
severe, persistent, or pervasive to limit a student's ability to 
participate in or benefit from the education program or to create a 
hostile or abusive educational environment. 101
    Moreover, in regulating the conduct of its students and its faculty 
to prevent or redress discrimination prohibited by Title IX (e.g., in 
responding to harassment that is sufficiently severe, persistent, or 
pervasive as to create a hostile environment), a school must formulate, 
interpret, and apply its rules so as to protect academic freedom and 
free speech rights. For instance, while the First Amendment may 
prohibit a

[[Page 12046]]

school from restricting the right of students to express opinions about 
one sex that may be considered derogatory, the school can take steps to 
denounce those opinions and ensure that competing views are heard. The 
age of the students involved and the location or forum may affect how 
the school can respond consistent with the First Amendment.102 As 
an example of the application of free speech rights to allegations of 
sexual harassment, consider the following:
    Example 1: In a college level creative writing class, a professor's 
required reading list includes excerpts from literary classics that 
contain descriptions of explicit sexual conduct, including scenes that 
depict women in submissive and demeaning roles. The professor also 
assigns students to write their own materials, which are read in class. 
Some of the student essays contain sexually derogatory themes about 
women. Several female students complain to the Dean of Students that 
the materials and related classroom discussion have created a sexually 
hostile environment for women in the class. What must the school do in 
response?
    Answer: Academic discourse in this example is protected by the 
First Amendment even if it is offensive to individuals. Thus, Title IX 
would not require the school to discipline the professor or to censor 
the reading list or related class discussion.
    Example 2: A group of male students repeatedly targets a female 
student for harassment during the bus ride home from school, including 
making explicit sexual comments about her body, passing around drawings 
that depict her engaging in sexual conduct, and, on several occasions, 
attempting to follow her home off the bus. The female student and her 
parents complain to the principal that the male students' conduct has 
created a hostile environment for girls on the bus and that they fear 
for their daughter's safety. What must the school do in response?
    Answer: Threatening and intimidating actions targeted at a 
particular student or group of students, even though they contain 
elements of speech, are not protected by the First Amendment. The 
school must take reasonable and appropriate actions against the 
students, including disciplinary action if necessary, to remedy the 
hostile environment and prevent future harassment.

Footnotes

    1. This Guidance does not address sexual harassment of 
employees, although that conduct may be prohibited by Title IX. If 
employees bring sexual harassment claims under Title IX, case law 
applicable to sexual harassment in the workplace under Title VII of 
the Civil Rights Act of 1964, 42 U.S.C. 2000e-2(a), and Equal 
Employment Opportunity Commission (EEOC) guidelines will apply. See 
28 CFR 42.604 (Procedures for Complaints of Employment 
Discrimination Filed Against Recipients of Federal Financial 
Assistance).
    2. 20 U.S.C. 1681 et seq., as amended; 34 CFR 106.1, 
106.31(a)(b). In analyzing sexual harassment claims, the Department 
also applies, as appropriate to the educational context, many of the 
legal principles applicable to sexual harassment in the workplace 
developed under Title VII. See Franklin v. Gwinnett County Public 
Schools, 503 U.S. 60, 75 (1992) (applying Title VII principles in 
determining that a student was entitled to protection from sexual 
harassment by a teacher in school under Title IX); Kinman v. Omaha 
Public School Dist., 94 F.3d 463, 469 (8th Cir. 1996) (applying 
Title VII principles in determining that a student was entitled to 
protection from hostile environment sexual harassment by a teacher 
in school under Title IX); Doe v. Claiborne County, 1996 WL 734583, 
*19 (6th Cir. December 26, 1996) (holding in a case involving 
allegations of hostile environment sexual harassment of a student by 
a teacher that Title VII agency principles apply to sexual 
harassment cases brought under Title IX); Murray v. New York 
University College of Dentistry, 57 F.3d 243, 249 (2nd Cir. 1995) 
(while finding notice lacking, court applied Title VII principles in 
assuming a Title IX cause of action for sexual harassment of a 
medical student by a patient visiting the school clinic); Doe v. 
Petaluma City School Dist., 830 F.Supp. 1560, 1571-72 (N.D. Cal. 
1993) (applying Title VII principles in determining that if school 
had notice of peer sexual harassment and failed to take appropriate 
corrective action, school liable under Title IX), rev'd in part on 
other grounds, 54 F.3d 1447 (9th Cir. 1995); Kadiki v. Virginia 
Commonwealth University, 892 F.Supp. 746, 749 (E.D. Va. 1995) (in 
Title IX case involving allegations of both quid pro quo and hostile 
environment sexual harassment, court indicated that Title VII 
standards should be applied).
    In addition, many of the principles applicable to racial 
harassment under Title VI of the Civil Rights Act of 1964, 42 U.S.C. 
2000d et seq., and Title VII also apply to sexual harassment under 
Title IX. Indeed, Title IX was modeled on Title VI, Cannon v. 
University of Chicago, 441 U.S. 677, 694 (1979). For information on 
racial harassment, see the Department's Notice of Investigative 
Guidance for Racial Harassment, 59 FR 11448 (1994).
    3. Consistent with Supreme Court decisions, see Franklin, 503 
U.S. at 75 (expressly ruling that the sexual harassment of a student 
by a teacher violates Title IX), the Department has interpreted 
Title IX as prohibiting sexual harassment for over a decade. Kinman, 
94 F.3d at 469 (Title IX prohibits hostile environment sexual 
harassment of student by teacher). Moreover, it has been OCR's 
longstanding practice to apply Title IX to peer harassment. See also 
Bosley v. Kearney R-1 School Dist., 904 F.Supp. 1006, 1023 (W.D. Mo. 
1995); Doe v. Petaluma City School Dist., Plaintiff's Motion for 
Reconsideration Granted, 1996 WL 432298 (N.D. Cal. July 22, 1996) 
(reaffirming Title IX liability for peer harassment if the school 
knows of the hostile environment but fails to take remedial action); 
Burrow v. Postville Community School District, 929 F.Supp. 1193, 
1205 (N.D. Iowa 1996) (student may bring Title IX cause of action 
against a school for its knowing failure to take appropriate 
remedial action in response to the hostile environment created by 
students at the school); Oona R.-S. v. Santa Rosa City Schools, 890 
F.Supp. 1452 (N.D. Cal. 1995); Davis v. Monroe County Bd. of 
Education, 74 F.3d 1186, 1193 (11th Cir. 1996) (as Title VII is 
violated if a sexually hostile working environment is created by co-
workers and tolerated by the employer, Title IX is violated if a 
sexually hostile educational environment is created by a fellow 
student or students and the supervising authorities knowingly failed 
to act to eliminate the harassment), vacated, reh'g granted, 91 F.3d 
1418 (11th Cir. 1996); cf. Murray, 57 F.3d at 249 (while court finds 
no notice to school, assumes a Title IX cause of action for sexual 
harassment of a medical student by a patient visiting school 
clinic). But see note 27. Of course, OCR has interpreted Title IX as 
prohibiting quid pro quo harassment of students for many years. See 
Alexander v. Yale University, 459 F.Supp. 1, 4 (D.Conn. 1977), 
aff'd, 631 F.2d 178 (2nd Cir. 1980).
    4. The term ``employee'' refers to employees and agents of a 
school. This includes persons with whom the school contracts to 
provide services for the school. See Brown v. Hot, Sexy, and Safer 
Productions, Inc., 68 F.3d 525 (1st Cir. 1995) (Title IX sexual 
harassment claim brought for school's role in permitting contract 
consultant hired by it to create allegedly hostile environment).
    In addition, while the standards applicable to peer sexual 
harassment are generally applicable to claims of student-on-student 
harassment, schools will be liable for the sexual harassment of one 
student by another student under the standards applicable to 
employee-on-student harassment if a student engages in sexual 
harassment as an agent or employee of a school. For instance, a 
school would be liable under the standards applicable to quid pro 
quo harassment if a student teaching assistant, who has been given 
the authority to assign grades, requires a student in his or her 
class to submit to sexual advances in order to obtain a certain 
grade in the class.
    5. Alexander, 459 F.Supp. at 4 (a claim that academic 
advancement was conditioned upon submission to sexual demands 
constitutes a claim of sex discrimination in education); Kadiki, 892 
F.Supp. at 752 (reexamination in a course conditioned on college 
student's agreeing to be spanked should she not attain a certain 
grade may constitute quid pro quo harassment); see also Karibian v. 
Columbia University, 14 F.3d 773, 777-79 (2nd Cir. 1994) (Title VII 
case).
    6. See e.g., Franklin, 503 U.S. at 63 (conduct of a sexual 
nature found to support a sexual harassment claim under Title IX

[[Page 12047]]

included kissing, sexual intercourse); Meritor Savings Bank FSB v. 
Vinson, 477 U.S. 57, 60-61 (1986) (demands for sexual favors, sexual 
advances, fondling, indecent exposure, sexual intercourse, rape 
sufficient to raise hostile environment claim under Title VII); 
Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367 (1993) 
(sexually derogatory comments and innuendo may support a sexual 
harassment claim under Title VII); Ellison v. Brady, 924 F.2d 872, 
873-74, 880 (9th Cir. 1991) (allegations sufficient to state a 
sexual harassment claim under Title VII included repeated requests 
for dates, letters making explicit references to sex and describing 
the harasser's feelings for plaintiff); Lipsett v. University of 
Puerto Rico, 864 F.2d 881, 903-4 (1st Cir. 1988) (sexually 
derogatory comments, posting of sexually explicit drawing of 
plaintiff, sexual advances may support sexual harassment claim); 
Kadiki, 892 F.Supp. at 751 (professor's spanking of a university 
student may constitute sexual conduct under Title IX); Doe v. 
Petaluma, 830 F.Supp. at 1564-65 (sexually derogatory taunts and 
innuendo can be the basis of a harassment claim); Denver School 
Dist. #1, OCR Case No. 08-92-1007 (same as to allegations of vulgar 
language and obscenities, pictures of nude women on office walls and 
desks, unwelcome touching, sexually offensive jokes, bribery to 
perform sexual acts, indecent exposure); Nashoba Regional High 
School, OCR Case No. 01-92-1377 (same as to year-long campaign of 
derogatory, sexually explicit graffiti and remarks directed at one 
student.)
    7. Davis, 74 F.3d at 1194, vacated, reh'g granted; Doe v. 
Petaluma, 830 F.Supp. at 1571-73; Moire v. Temple University School 
of Medicine, 613 F.Supp. 1360, 1366 (E.D. Pa. 1985), aff'd mem., 800 
F.2d 1136 (3d Cir. 1986); see also Vinson, 477 U.S. at 67; Lipsett, 
864 F.2d at 901; Racial Harassment Guidance, 59 FR 11449-50. But see 
note 27.
    8. 34 CFR 106.8(b).
    9. 20 U.S.C. 1687 (codification of Title IX portion of the Civil 
Rights Restoration Act of 1987).
    10. See also Shoreline School Dist., OCR Case No. 10-92-1002 (a 
teacher's patting student on arm, shoulder, and back, and 
restraining the student when he was out of control, not conduct of a 
sexual nature); Dartmouth Public Schools, OCR Case No. 01-90-1058 
(same as to contact between high school coach and students); San 
Francisco State University, OCR Case No. 09-94-2038 (same as to 
faculty advisor placing her arm around graduate student's shoulder 
in posing for a picture); Analy Union High School Dist., OCR Case 
No. 09-92-1249 (same as to drama instructor who put his arms around 
both male and female students who confided in him.)
    11. Cf. John Does 1 v. Covington County School Bd., 884 F.Supp. 
462, 464-65 (M.D. Ala. 1995) (male students alleging that teacher 
sexually harassed and abused them stated cause of action under Title 
IX).
    12. Title IX and the regulations implementing it prohibit 
discrimination ``on the basis of sex;'' they do not restrict sexual 
harassment to those circumstances in which the harasser only 
harasses members of the opposite sex in incidents involving either 
quid pro quo or hostile environment sexual harassment. See 34 CFR 
106.31. In order for hostile environment harassment to be actionable 
under Title IX, it must create a hostile or abusive environment. 
This can occur when a student or employee harasses a member of the 
same sex. See Kinman, 94 F.3d at 468 (female student's alleging 
sexual harassment by female teacher sufficient to raise a claim 
under Title IX); Doe v. Petaluma, 830 F.Supp. at 1564-65, 1575 
(female junior high school student alleging sexual harassment by 
other students, including both boys and girls, sufficient to raise 
claim under Title IX); John Does 1, 884 F.Supp. at 465 (same as to 
male students' allegations of sexual harassment and abuse by male 
teacher.) It can also occur in certain situations if the harassment 
is directed at students of both sexes. Chiapuzo v. BLT Operating 
Co., 826 F.Supp. 1334 (D. Wyo. 1993) (court found that such 
harassment could violate Title VII).
    In many circumstances, harassing conduct will be on the basis of 
sex because the student would not have been subjected to it at all 
had he or she been a member of the opposite sex; e.g., if a female 
student is repeatedly propositioned by a male student or employee 
(or, for that matter, if a male student is repeatedly propositioned 
by a male student or employee). In other circumstances, harassing 
conduct will be on the basis of sex if the student would not have 
been affected by it in the same way or to the same extent had he or 
she been a member of the opposite sex; e.g., pornography and 
sexually explicit jokes in a mostly male shop class are likely to 
affect the few girls in the class more than it will most of the 
boys.
    In yet other circumstances, the conduct will be on the basis of 
sex in that the student's sex was a factor in or affected the nature 
of the harasser's conduct or both. Thus, in Chiapuzo, a supervisor 
made demeaning remarks to both partners of a married couple working 
for him, e.g., as to sexual acts he wanted to engage in with the 
wife and how he would be a better lover than the husband. In both 
cases, according to the court, the remarks were gender-driven in 
that they were made with an intent to demean each member of the 
couple because of his or her respective sex. See also Steiner v. 
Showboat Operating Co., 25 F.3d 1459, 1463-64 (9th Cir. 1994), cert. 
denied, 115 S.Ct. 733 (1995) (Title VII case).
    13. Nashoba Regional High School, OCR Case No. 01-92-1397. In 
Conejo Valley School Dist., OCR Case No. 09-93-1305, female students 
allegedly taunted another female student about engaging in sexual 
activity; OCR found that the alleged comments were sexually explicit 
and, if true, would be sufficiently severe, persistent, and 
pervasive to create a hostile environment.
    14. Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69 (8th 
Cir. 1989, cert. denied 493 U.S. 1089 (1990) (Title VII case); 
DeSantis v. Pacific Tel. & Tel. Co., Inc., 608 F.2d 327 (9th Cir. 
1979) (same); Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979) 
(same).
    15. See Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996) 
(holding that a gay student could maintain claims alleging 
discrimination based on both gender and sexual orientation under the 
Equal Protection Clause of the United States Constitution in case in 
which school district officials allegedly failed to protect the 
student to the same extent that other students were protected from 
harassment and harm by other students due to the student's gender 
and sexual orientation).
    16. See Vinson, 477 U.S. at 65-66; Harris, 114 S.Ct. at 370-371; 
see also Hicks v. Gates Rubber Co., 833 F.2d 1406, 1416 (10th Cir. 
1987) (Title VII case); McKinney v. Dole, 765 F.2d 1129, 1138 (D.C. 
Cir. 1985) (Title VII case; physical, but non-sexual, assault could 
be sex-based harassment if shown to be unequal treatment that would 
not have taken place but for the employee's sex); Cline v. General 
Electric Capital Auto Lease, Inc., 757 F.Supp. 923 (N.D. Ill. 1991) 
(Title VII case).
    17. See Harris, 114 S.Ct. at 370-371; Andrews v. City of 
Philadelphia, 895 F.2d 1469, 1485-86 (3rd Cir. 1990) (Title VII 
case; court directed trial court to consider sexual conduct as well 
as theft of female employees' files and work, destruction of 
property, and anonymous phone calls in determining if there had been 
sex discrimination); see also Hall v. Gus Construction Co., 842 F.2d 
1010, 1014 (8th Cir. 1988) (Title VII case); Hicks, 833 F.2d at 
1415; Eden Prairie Schools, Dist. #272, OCR Case No. 05-92-1174 (the 
boys made lewd comments about male anatomy and tormented the girls 
by pretending to stab them with rubber knives; while the stabbing 
was not sexual conduct, it was directed at them because of their 
sex, i.e., because they were girls.
    18. The Supreme Court has ruled that agency principles apply in 
determining an employer's liability under Title VII for the 
harassment of its employees by supervisors. See Vinson, 477 U.S. at 
72. These principles would govern in Title IX cases involving 
employees who are harassed by their supervisors. See 28 CFR 42.604 
(regulations providing for handling employment discrimination 
complaints by Federal agencies; requiring agencies to apply Title 
VII law if applicable). These same principles should govern the 
liability of educational institutions under Title IX for the 
harassment of students by teachers and other school employees in 
positions of authority. See Franklin, 503 U.S. at 75.
    19. The Supreme Court in Vinson did not alter the standard 
developed in the lower Federal courts whereby an institution is 
absolutely liable for quid pro quo sexual harassment whether or not 
it knew, should have known, or approved of the harassment at issue. 
477 U.S. at 70-71; see also Lipsett, 864 F.2d at 901; EEOC Notice N-
915-050, March 1990, Policy Guidance on Current Issues of Sexual 
Harassment, at p. 21. This standard applies in the school context as 
well. Kadiki, 892 F.Supp. at 752 (for the purposes of quid pro quo 
harassment of a student, professor is in similar position as 
workplace supervisor).
    20. Kadiki, 892 F.Supp. at 754-755; cf. Martin v. Cavalier Hotel 
Corp., 48 F.3d 1343, 1351 n.3 (4th Cir. 1995) (Title VII case); 
Karibian, 14 F.3d at 777-78; Henson v. City of Dundee, 682 F.2d 897, 
910 (11th Cir. 1982) (Title VII case).

[[Page 12048]]

    21. See note 4.
    22. Restatement (Second) Agency Sec. 219(2)(d); Martin, 48 F.3d 
at 1352 (finding an employer liable under Title VII for sexual 
harassment of an employee in case in which the Manager used his 
apparent authority to commit the harassment; the Manager was 
delegated full authority to hire, fire, promote, and discipline 
employees and used the authority to accomplish the harassment; and 
company policy required employees to report harassment to the 
Manager with no other grievance process made available to them).
    23. See Restatement (Second) of Agency 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, 
48 F.3d at 1352. But see Rosa H v. San Elizario Ind. School Dist., 
1997 U.S. App. LEXIS 2780 (5th Cir. Feb. 17, 1997). In San Elizario 
the Fifth Circuit reversed a jury finding that a school district was 
liable under Title IX for a hostile environment created by the 
school's male karate instructor, who repeatedly initiated sexual 
intercourse with a fifteen-year-old female karate student. The court 
held, contrary to OCR policy, that a school could not be found 
liable under Title IX pursuant to agency principles.
    However, language in this and previous decisions indicates that 
Title IX law is evolving in the Fifth Circuit. When OCR investigates 
complaints involving schools in the Fifth Circuit (Texas, Louisiana, 
and Mississippi), it will in each case determine and follow the 
current applicable law. In light of the evolving case law in the 
Fifth Circuit, adhering to the standards in the Guidance may be the 
best way for schools in these States to ensure compliance with the 
requirements of Title IX. School personnel should also consider 
whether State, local, or other Federal authority affects their 
obligations in these areas.
    24. Karibian, 14 F.3d at 780 (employer would be liable for 
hostile environment harassment in case in which allegations were 
that a supervisor coerced employee into a sexual relationship by, 
among other things, telling her she `` `owed him' for all he was 
doing for her as her supervisor''); Sparks v. Pilot Freight 
Carriers, Inc., 830 F.2d 1554, 1558-60 (11th Cir. 1987) (Title VII 
case holding employer liable for sexually hostile environment 
created by supervisor who repeatedly reminded the harassed employee 
that he could fire her if she did not comply with his sexual 
advances).
    25. Cf. Karibian, 14 F.3d at 780.
    26. Id.
    27. The overwhelming majority of courts that have considered the 
issue of sexually hostile environments caused by peers have 
indicated that schools may be liable under Title IX for their 
knowing failure to take appropriate actions to remedy the hostile 
environment. See note 7 and peer hostile environment cases cited in 
note 3. However, one Federal Circuit Court of Appeals decision, 
Rowinsky v. Bryan Independent School Dist., 80 F.3d 1006 (5th Cir. 
1996), cert. denied, 117 S.Ct. 165 (1996), has held to the contrary. 
In that case, over a strong dissent, the court rejected the 
authority of other Federal courts and OCR's longstanding 
construction of Title IX and held that a school district is not 
liable under Title IX for peer harassment unless ``the school 
district itself directly discriminated based on sex,'' i.e., the 
school responded differently to sexual harassment or similar claims 
of girls versus boys. For cases specifically rejecting the Rowinsky 
interpretation, see e.g., Doe v. Petaluma, Plaintiff's Motion for 
Reconsideration Granted, 1996 WL 432298 *6 (N.D. Cal. 1996); Burrow 
v. Postville Community School Dist., 929 F.Supp. at 1193.
    OCR believes that the Rowinsky decision misinterprets Title IX. 
As explained in this Guidance, Title IX does not make a school 
responsible for the actions of the harassing student, but rather for 
its own discrimination in failing to take immediate and appropriate 
steps to remedy the hostile environment once a school official knows 
about it. If a student is sexually harassed by a fellow student, and 
a school official knows about it, but does not stop it, the school 
is permitting an atmosphere of sexual discrimination to permeate the 
educational program. The school is liable for its own action, or 
lack of action, in response to this discrimination. Notably, Title 
VII cases that hold that employers are responsible for remedying 
hostile environment harassment of one worker by a co-worker apply 
this same standard. See, e.g., Ellison v. Brady, 924 F.2d at 881-82; 
Hall v. Gus Construction Co., 842 F.2d 1010 (8th Cir. 1988); Hunter 
v. 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).
    Language in subsequent decisions indicates that Title IX law is 
evolving in the Fifth Circuit. When OCR investigates complaints 
involving schools in States in the Fifth Circuit (Texas, Louisiana, 
and Mississippi), it will in each case determine and follow the 
current applicable law. However, the existence of Fifth Circuit 
decisions that are inconsistent with OCR policy does not prohibit 
schools in these States from following the Guidance. In order to 
ensure students a safe and nondiscriminatory educational 
environment, the better practice is for these schools to follow the 
Guidance. Thus, schools should take prompt corrective action to 
address peer harassment of which they knew or should have known. 
Indeed, following the Guidance may be the safest way for schools in 
these States to ensure compliance with the requirements of Title IX.
    28. See Restatement (Second) of Agency Sec. 219(2)(b).
    29. As with peer harassment by its own students, a school's 
liability for the harassment of its students by third parties is 
based on its obligation to provide an environment free of 
discrimination. Murray, 57 F.3d at 250 (student participating in 
university dental clinic providing services to the public alleged 
harassment by a patient; while the court ruled in defendant's favor 
because of lack of notice, it considered such a claim actionable 
under Title IX); Racial Harassment Investigative Guidance, 59 FR 
11450 (referring to harassment by neighborhood teenagers, guest 
speaker, and parents). See, e.g., 29 CFR 1604.11(e); Sparks v. 
Regional Medical Ctr., 792 F.Supp. 735, 738 n.1 (N.D. Ala. 1992) 
(Title VII case); Powell v. Las Vegas Hilton Corp., 841 F.Supp. 
1024, 1027-28 (D. Nev. 1992) (Title VII case); Magnuson v. Peak 
Technical Servs., Inc., 808 F.Supp. 500, 512-13 (E.D. Va. 1992) 
(Title VII case); EEOC v. Sage Realty Corp., 507 F.Supp. 599, 611 
(S.D.N.Y. 1981) (Title VII case); cf. Dornhecker v. Malibu Grand 
Prix Corp., 828 F.2d 307 (5th Cir. 1987) (assuming Title VII 
required employer to respond appropriately to sexual harassment of 
an employee by a contractor, but finding employer's response 
sufficient). See also Restatement (Second) of Agency Sec. 219(2)(b).
    30. For example, if athletes from a visiting team harass the 
home school's students, the home school may not be able to 
discipline the athletes. However, it could encourage the other 
school to take appropriate action to prevent further incidents; if 
necessary, the home school may choose not to invite the other school 
back. Cf. Danna v. New York Telephone Co., 752 F.Supp. 594, 611 
(S.D.N.Y. 1990) (telephone company in violation of Title VII for not 
taking sufficient action to protect its own employee from sexually 
explicit graffiti at the airport where she was assigned to work, 
e.g., contacting airport management to see what remedial measures 
could be taken).
    31. 34 CFR 106.8(b) and 106.9.
    32. See Racial Harassment Investigative Guidance, 59 FR 11450; 
Murray, 57 F.3d at 249 (an employer is liable for the harassment of 
co-workers if the employer ``either provided no reasonable avenue 
for complaint or knew of the harassment but did nothing about it''.
    33. EEOC Policy Guidance at p. 25 (``* * * in the absence of a 
strong, widely disseminated, and consistently enforced employer 
policy against sexual harassment, and an effective complaint 
procedure, employees could reasonably believe that a harassing 
supervisor's actions will be ignored, tolerated, or even condoned by 
upper management.'')
    34. 34 CFR 106.8(b).
    35. If OCR finds a violation of Title IX, it will seek to obtain 
an agreement with the school to voluntarily correct the violation. 
The agreement will set out the specific steps the school will take 
and provide for monitoring by OCR to ensure that the school complies 
with the agreement. Schools should note that the Supreme Court has 
held that monetary damages are available as a remedy in private 
lawsuits brought to redress violations of Title IX. Franklin, 503 
U.S. at 76. Of course, a school's immediate and appropriate remedial 
actions are relevant in determining the nature and extent of the 
damages suffered by a plaintiff.
    36. Henson, 682 F.2d at 903 (Title VII case).
    37. [T]he fact that sex-related conduct was ``voluntary,'' in 
the sense that the complainant was not forced to participate against 
her will, is not a defense to a sexual harassment suit brought under 
Title VII * * *. The correct inquiry is whether [the

[[Page 12049]]

subject of the harassment] by her conduct indicated that the alleged 
sexual advances were unwelcome, not whether her actual participation 
in sexual intercourse was voluntary. Vinson, 477 U.S. at 68.
    38. Lipsett, 864 F.2d at 898 (while, in some instances, a person 
may have responsibility for telling the harasser directly that the 
conduct is unwelcome, in other cases a ``consistent failure to 
respond to suggestive comments or gestures may be sufficient * * 
*.''); Danna, 752 F.Supp. at 612 (despite female employee's own foul 
language and participation in graffiti writing, her complaints to 
management indicated that the harassment was not welcome); see also 
Carr v. Allison Gas Turbine Div., GMC, 32 F.3d 1007, 1011 (7th Cir. 
1994) (Title VII case; cursing and dirty jokes by female employee 
did not show that she welcomed the sexual harassment, given her 
frequent complaints about it: ``Even if * * * [the employee's] 
testimony that she talked and acted as she did [only] in an effort 
to be one of the boys' is * * * discounted, her words and conduct 
cannot be compared to those of the men and used to justify their 
conduct * * *. The asymmetry of positions must be considered. She 
was one woman; they were many men. Her use of [vulgar] terms * * * 
could not be deeply threatening.'').
    39. Reed v. Shepard, 939 F.2d 484, 486-87, 491-92 (7th Cir. 
1991) (no harassment found under Title VII in case in which female 
employee not only tolerated, but also participated in and instigated 
the suggestive joking activities about which she was now 
complaining); Weinsheimer v. Rockwell Int'l Corp., 794 F.Supp. 1559, 
1563-64 (M.D. Fla. 1990) (same, in case in which general shop banter 
was full of vulgarity and sexual innuendo by men and women alike, 
and plaintiff contributed her share to this atmosphere). However, 
even if a student participates in the sexual banter, OCR may in 
certain circumstances find that the conduct was nevertheless 
unwelcome if, for example, a teacher took an active role in the 
sexual banter and a student reasonably perceived that the teacher 
expected him or her to participate.
    40. The school bears the burden of rebutting the presumption.
    41. Of course, nothing in Title IX would prohibit a school from 
implementing policies prohibiting sexual conduct or sexual 
relationships between students and adult employees.
    42. See note 41.
    43. In Harris, the Supreme Court explained the requirement for 
considering the ``subjective perspective'' when determining the 
existence of a hostile environment. The Court stated: ``* * * if the 
victim does not subjectively perceive the environment to be abusive, 
the conduct has not actually altered the conditions of the victim's 
employment, and there is no Title VII violation.'' 114 S.Ct. at 370.
    44. The Supreme Court used a ``reasonable person'' standard in 
Harris, 114 S.Ct. at 370-71 to determine whether sexual conduct 
constituted harassment. This standard has been applied under Title 
VII to take into account the sex of the subject of the harassment, 
see, e.g., Ellison, 924 F.2d at 878-79 (applying a ``reasonable 
women'' standard to sexual harassment), and has been adapted to 
sexual harassment in education, Davis, 74 F.3d at 1126 (relying on 
Harris to adopt an objective, reasonable person standard), vacated, 
reh'g granted; Patricia H. v. Berkeley Unified School Dist., 830 F. 
Supp. 1288, 1296 (N.D. Cal. 1993) (adopting a ``reasonable victim'' 
standard and referring to OCR's use of it); Racial Harassment 
Guidance, 59 FR 11452 (the standard must take into account the 
characteristics and circumstances of victims on a case-by-case 
basis, particularly the victim's race and age).
    45. Harris, 114 S.Ct. at 371; See Racial Harassment Guidance, 59 
FR 11449 and 11452; Brock v. United States, 64 F.3d 1421, 1423 (9th 
Cir. 1995) (Title VII case); Simon v. Morehouse Sch. of Medicine, 
908 F.Supp. 959, 969-970 (N.D. Ga. 1995) (Title VII case); Al-
Dabbagh v. Greenpeace, Inc., 873 F.Supp. 1105, 1111-12 (N.D. Ill. 
1994) (Title VII case); Watts v. N.Y.C. Police Dept., 724 F.Supp. 
99, 104 (S.D.N.Y. 1989) (Title VII case).
    46. Davis, 74 F.3d at 1126 (no Title IX violation unless the 
conduct has ``actually altered the conditions of [the student's] 
learning environment''), vacated, reh'g granted; Lipsett, 864 F.2d 
at 898 (`` altered'' the educational environment); Patricia H., 830 
F. Supp. at 1297 (sexual harassment could be found where conduct 
interfered with student's ability to learn); see also Andrews, 895 
F.2d at 1482 (Title VII case).
    47. Harris, 114 S.Ct. at 371.
    48. See e.g., Doe v Petaluma, 830 F. Supp at 1566 (student so 
upset about harassment by other students that she was forced to 
transfer several times, including finally to a private school); 
Modesto City Schools, OCR Case No. 09-93-1391 (evidence showed that 
one girl's grades dropped while the harassment was occurring); 
Weaverville Elementary School, OCR Case No. 09-91-1116 (students 
left school due to the harassment). Compare with College of Alameda, 
OCR Case No. 09-90-2104 (student not in instructor's class and no 
evidence of any effect on student's educational benefits or 
services, so no hostile environment).
    49. Doe v. Petaluma, 830 F. Supp. at 1566.
    50. See Harris, 114 S.Ct. at 371, in which the Court held that 
tangible harm is not required. In determining whether harm is 
sufficient, several factors are to be considered, including 
frequency, severity, whether the conduct was threatening or 
humiliating versus a mere offensive utterance, and whether it 
unreasonably interfered with work performance. No single factor is 
required; similarly, psychological harm, while relevant, is not 
required.
    51. See Modesto City Schools, OCR Case No. 09-93-1391 (evidence 
showed that several girls were afraid to go to school because of the 
harassment).
    52. Summerfield Schools, OCR Case No. 15-92-1029.
    53. See Waltman v. Int'l Paper Co., 875 F.2d 468, 477 (5th Cir. 
1989) (Title VII case); see also Hall, 842 F.2d at 1015 (evidence of 
sexual harassment directed at others is relevant to show hostile 
environment under Title VII); Racial Harassment Investigative 
Guidance, 59 FR 11453.
    54. See, e.g., Andrews, 895 F.2d at 1484 (``Harassment is 
pervasive when `incidents of harassment occur either in concert or 
with regularity'.''); Moylan v. Maries County, 792 F.2d 746, 749 
(8th Cir. 1986) (Title VII case); Downes v. Federal Aviation 
Administration, 775 F.2d 288, 293 (D.C. Cir. 1985) (same); cf. Scott 
v. Sears, Roebuck and Co., 798 F.2d 210, 214 (7th Cir. 1986) (Title 
VII case; conduct was not pervasive or debilitating).
    55. The U.S. Equal Employment Opportunity Commission (EEOC) has 
stated: ``The Commission will presume that the unwelcome, 
intentional touching of [an employee's] intimate body areas is 
sufficiently offensive to alter the conditions of her working 
environment and constitute a violation of Title VII. More so than in 
the case of verbal advances or remarks, a single unwelcome physical 
advance can seriously poison the victim's working environment.'' 
EEOC Policy Guidance on Current Issues of Sexual Harassment, p. 17. 
See also Barrett v. Omaha National Bank, 584 F. Supp. 22, 30 (D. 
Neb. 1983), aff'd, 726 F.2d 424 (8th Cir. 1984) (hostile environment 
created under Title VII by isolated events, i.e., occurring while 
traveling to and during a two-day conference, including the co-
worker's talking to plaintiff about sexual activities and touching 
her in offensive manner while they were inside a vehicle from which 
she could not escape).
    56. See also Ursuline College, OCR Case No. 05-91-2068 (A single 
incident of comments on a male student's muscles arguably not 
sexual; however, assuming they were, not severe enough to create a 
hostile environment).
    57. Patricia H., 830 F.Supp. at 1297 (''grave disparity in age 
and power'' between teacher and student contributed to the creation 
of a hostile environment); Summerfield Schools, OCR Case No. 15-92-
1929 (``impact of the * * * remarks was heightened by the fact that 
the coach is an adult in a position of authority''); cf. Doe v. 
Taylor I.S.D., 15 F.3d 443 (5th Cir. 1994), cert. denied, 115 S.Ct. 
70 (1994) (Sec. 1983 case; in finding that a sexual relationship 
between a high school teacher and a student was unlawful, court 
considered the influence that the teacher had over the student by 
virtue of his position of authority).
    58. See, e.g., McKinney, 765 F.2d at 1138-40; Robinson, 760 F. 
Supp. at 1522.
    59. Cf. Patricia H., 830 F. Supp. at 1297.
    60. See also Barrett, 584 F. Supp. at 24 (harassment occurring 
in a car from which the plaintiff could not escape was deemed 
particularly severe).
    61. See also Hall, 842 F.2d at 1015 (incidents of sexual 
harassment directed at other employees); Hicks, 833 F.2d at 1415-16 
(same). Cf. Midwest City-Del City Public Schools, OCR Case No. 06-
92-1012 (finding of racially hostile environment based in part on 
several racial incidents at school shortly before incidents in 
complaint, a number of which involved the same student involved in 
the complaint).
    62. See note 17. In addition, incidents of racial or national 
origin harassment directed at a particular individual may also be 
aggregated with incidents of sexual or gender harassment directed at 
that individual in determining the existence of a hostile 
environment. Hicks, 833 F.2d at 1416;

[[Page 12050]]

Jefferies v. Harris Community Action Ass'n, 615 F.2d 1025, 1032 (5th 
Cir. 1980) (Title VII case).
    63. In addition, even if there is no notice, schools may be 
liable for sexual harassment. See previous discussions of liability 
in situations involving quid pro quo harassment and hostile 
environment sexual harassment by employees in situations in which 
the employee acted with apparent authority or was aided in carrying 
out the harassment of students by his or her position of authority 
with the school.
    64. See Ellison v. Brady, 924 F.2d 872, 881 (9th Cir. 1991), 
quoting EEOC v. Hacienda Hotel, 881 F.2d 1504, 1515-1516 (9th Cir. 
1989) (Title VII cases); Swentek v. USAir, 830 F.2d 552, 558 (4th 
Cir. 1987), quoting Katz v. Dole, 709 F.2d at 255 (Title VII cases).
    But see Rosa H. v. San Elizario Indep. School Dist., 1997 U.S. 
App. LEXIS 2780 (5th Cir. Feb. 17, 1997) and note 23. In San 
Elizario, the Fifth Circuit held, among other things, that liability 
for hostile environment harassment cannot attach if the school has 
only constructive notice of the harassment. See note 23.
    65. Whether an employee is an agent or responsible school 
employee, or whether it would be reasonable for a student to believe 
the employee is, even if the employee is not, will vary depending on 
factors such as the authority actually given to the employee and the 
age of the student.
    With respect to the notice provisions applicable to schools 
under Title IX, one Federal Circuit Court of Appeals decision, 
Canutillo Indep. School Dist. v. Leija, 101 F.3d 393, 398-400 (5th 
Cir. 1996), has held, contrary to OCR policy, that a school district 
was not liable in a case in which one of its teachers sexually 
molested a second grade student, because the student and her mother 
only reported the harassment to her homeroom teacher. 
Notwithstanding that a school handbook instructed students and 
parents to report complaints to the child's primary or homeroom 
teacher, the court held that notice must be given to ``someone with 
authority to take remedial action.'' See also Rosa H. v. San 
Elizario Indep. School Dist., 1997 U.S. App. LEXIS 2780 (5th Cir. 
Feb. 17, 1997), and notes 23 and 64. In San Elizario, the Fifth 
Circuit held, among other things, that although the fifteen-year-old 
student, whose karate instructor had repeatedly initiated sexual 
intercourse, ``was subject to discrimination on the basis of sex,'' 
a school district is only liable if an employee who has been 
invested by the school board with supervisory power over the 
offending employee actually knew of the abuse, had the power to end 
the abuse, and failed to do so.
    Based on these and other decisions, Title IX law is evolving in 
the Fifth Circuit. When OCR investigates complaints involving 
schools in States in the Fifth Circuit (Texas, Louisiana, and 
Mississippi), it will in each case determine and follow the current 
applicable law. However, the existence of Fifth Circuit decisions 
that are inconsistent with OCR policy does not prohibit schools in 
these States from following the Guidance. In order to ensure 
students a safe and nondiscriminatory educational environment, it is 
the better practice for these schools to follow the Guidance. For 
example, the better practice is for schools to ensure that teachers 
and other personnel recognize and report sexual harassment of 
students to the appropriate school staff so that schools can take 
prompt corrective action and ensure a safe educational environment. 
In addition, the Guidance makes clear that providing students with 
several avenues to report sexual harassment is a very helpful means 
for addressing and preventing sexually harassing conduct in the 
first place. Schools in States in the Fifth Circuit should also 
consider whether State, local or other Federal laws may affect their 
responsibilities in this regard.
    66. Racial Harassment Guidance, 59 FR 11450 (discussing how a 
school may receive notice).
    67. See Yates v. Avco Corp., 819 F.2d 630, 634-36 (6th Cir. 
1987) (Title VII case); Katz v. Dole, 709 F.2d 251, 256 (4th Cir. 
1983) (same); See also Racial Harassment Investigative Guidance, 59 
FR 11450.
    68. Cf. Katz, 709 F.2d at 256 (the employer ``should have been 
aware of the * * * problem both because of its pervasive character 
and because of Katz' specific complaints * * *''); Smolsky v. 
Consolidated Rail Corp., 780 F. Supp. 283, 293 (E.D. Pa. 1991), 
reconsideration denied, 785 F. Supp. 71 (E.D. Pa. 1992) (``where the 
harassment is apparent to all others in the work place, supervisors 
and coworkers, this may be sufficient to put the employer on notice 
of the sexual harassment'' under Title VII); Jensen v. Eveleth 
Taconite Co., 824 F. Supp. 847, 887 (D. Minn. 1993) (Title VII case; 
``[s]exual harassment * * * was so pervasive that an inference of 
knowledge arises * * *. The acts of sexual harassment detailed 
herein were too common and continuous to have escaped Eveleth Mines 
had its management been reasonably alert''); Cummings v. Walsh 
Construction Co., 561 F. Supp. 872, 878 (S.D. Ga. 1983) (``* * * 
allegations not only of the [employee] registering her complaints 
with her foreman * * * but also that sexual harassment was so 
widespread that defendant had constructive notice of it'' under 
Title VII); but see Murray, 57 F.3d at 250-51 (that other students 
knew of the conduct was not enough to charge the school with notice, 
particularly in case in which these students may not have been aware 
that the conduct was offensive or abusive).
    69. Schools have an obligation to ensure that the educational 
environment is free of discrimination and cannot fulfill this 
obligation without determining if sexual harassment complaints have 
merit.
    70. In some situations, for example, if a playground supervisor 
observes a young student repeatedly engaging in conduct toward other 
students that is clearly unacceptable under the school's policies, 
it may be appropriate for the school to intervene without contacting 
the other students. It may still be necessary for the school to talk 
with the students (and parents of elementary and secondary students) 
afterwards, e.g., to determine the extent of the harassment and how 
it affected them.
    71. Cf. Bundy v. Jackson, 641 F.2d 934, 947 (D.C. Cir. 1981) 
(employers should take corrective and preventive measures under 
Title VII); accord, Jones v. Flagship Int'l, 793 F.2d 714, 719-720 
(5th Cir. 1986) (employer should take prompt remedial action under 
Title VII). Racial Harassment Investigative Guidance, 59 FR 11450.
    72. Waltman v. Int'l Paper Co., 875 F.2d at 479 (appropriateness 
of employer's remedial action under Title VII will depend on the 
severity and persistence of the harassment and the effectiveness of 
any initial remedial steps); Dornhecker v. Malibu Grand Prix Corp., 
828 F.2d 307, 309-10 (5th Cir. 1987) (Title VII case; employer 
arranged for victim to no longer work with alleged harasser).
    73. Intlekofer v. Turnage, 973 F.2d 773 (9th Cir. 1992) (Title 
VII case) (holding that the employer's response was insufficient and 
that more severe disciplinary action was necessary in situations in 
which counseling, separating the parties, and warnings of possible 
discipline were ineffective in ending the harassing behavior).
    74. Offering assistance in changing living arrangements is one 
of the actions required of colleges and universities by the Campus 
Security Act in cases of rape and sexual assault. See 20 U.S.C. 
1092(f).
    75. See note 30.
    76. University of California at Santa Cruz, OCR Case No. 09-93-
2141 (extensive individual and group counseling); Eden Prairie 
Schools, Dist. #272, OCR Case No. 05-92-1174 (counseling).
    77. Even if the harassment stops without the school's 
involvement, the school may still need to take steps to prevent or 
deter any future harassment--to inform the school community that 
harassment will not be tolerated. Fuller v. City of Oakland, 47 F.3d 
1522, 1528-29 (9th Cir. 1995).
    78. 34 CFR 106.8(b) and 106.71, incorporating by reference 34 
CFR 100.7(e). Title IX prohibits intimidation, threats, coercion, or 
discrimination against any individual for the purpose of interfering 
with any right or privilege secured by Title IX.
    79. Tacoma School Dist. No. 10, OCR Case No. 10-94-1079 (due to 
the large number of students harassed by an employee, the extended 
period of time over which the harassment occurred, and the failure 
of several of the students to report the harassment, school 
committed as part of corrective action plan to providing training 
for students); Los Medanos College, OCR Case No. 09-84-2092 (as part 
of corrective action plan, school committed to providing sexual 
harassment seminar for campus employees); Sacramento City Unified 
School Dist., OCR Case No. 09-83-1063 (same as to workshops for 
management and administrative personnel, in-service training for 
non-management personnel).
    80. In addition, if information about the incident is contained in 
an ``education record'' of the student alleging the harassment, as 
defined in the Family Educational Rights and Privacy Act (FERPA), 20 
U.S.C. 1232g, the school should consider whether FERPA would prohibit 
the school from disclosing information without the student's consent. 
Id. In evaluating whether FERPA would limit disclosure, the Department 
does not interpret

[[Page 12051]]

FERPA to override any federally protected due process rights of a 
school employee accused of harassment.
    81. 34 CFR 106.8(b). This requirement has been part of the Title IX 
regulations since their inception in 1975. Thus, schools have been 
required to have these procedures in place since that time. At the 
elementary and secondary level, this responsibility generally lies with 
the school district. At the postsecondary level, there may be a 
procedure for a particular campus or college, or for an entire 
university system.
    82. Fenton Community High School Dist. # 100, OCR Case 05-92-1104.
    83. While a school is required to have a grievance procedure under 
which complaints of sex discrimination (including sexual harassment) 
can be filed, the same procedure may also be used to address other 
forms of discrimination.
    84. See Vinson, 477 U.S. at 72-73.
    85. It is the Department's current position under the Family 
Educational Rights and Privacy Act (FERPA) that a school cannot release 
information to a complainant regarding disciplinary action imposed on a 
student found guilty of harassment if that information is contained in 
a student's education record unless--(1) the information directly 
relates to the complainant (e.g., an order requiring the student 
harasser not to have contact with the complainant); or (2) the 
harassment involves a crime of violence or a sex offense in a 
postsecondary institution. See note 80. If the alleged harasser is a 
teacher, administrator, or other non-student employee, FERPA would not 
limit the school's ability to inform the complainant of any 
disciplinary action taken.
    86. The section in the Guidance on ``Recipient's Response'' 
provides examples of reasonable and appropriate corrective action.
    87. 34 CFR 106.8(a).
    88. Id.
    89. See Vinson, 477 U.S. at 72-73.
    90. University of California, Santa Cruz, OCR Case No. 09-93-2141; 
Sonoma State University, OCR Case No. 09-93-2131. This is true for 
formal as well as informal complaints. See University of Maine at 
Machias, OCR Case No. 01-94-6001 (school's new procedures not found in 
violation of Title IX in part because they require written records for 
informal as well as formal resolutions). These records need not be kept 
in a student's or employee's individual file, but instead may be kept 
in a central confidential location.
    91. For example, in Cape Cod Community College, OCR Case No. 01-93-
2047, the College was found to have violated Title IX in part because 
the person identified by the school as the Title IX coordinator was 
unfamiliar with Title IX, had no training, and did not even realize he 
was the coordinator.
    92. Indeed, in University of Maine at Machias, OCR Case No. 01-94-
6001, OCR found the school's procedures to be inadequate because only 
formal complaints were investigated. While a school isn't required to 
have an established procedure for resolving informal complaints, they 
nevertheless must be addressed in some way. However, if there are 
indications that the same individual may be harassing others, then it 
may not be appropriate to resolve an informal complaint without taking 
steps to address the entire situation.
    93. Academy School Dist. No. 20, OCR Case No. 08-93-1023 (school's 
response determined to be insufficient in case in which it stopped its 
investigation after complaint filed with police); Mills Public School 
Dist., OCR Case No. 01-93-1123 (not sufficient for school to wait until 
end of police investigation).
    94. Cf. EEOC v. Board of Governors of State Colleges and 
Universities, 957 F.2d 424 (7th Cir.) (Title VII case), cert. denied, 
113 S.Ct. 299 (1992); Johnson v. Palma, 931 F.2d 203 (2nd Cir. 1991) 
(same).
    95. The First Amendment applies to entities and individuals that 
are State actors. The receipt of Federal funds by private schools does 
not directly subject those schools to the U.S. Constitution. See 
Rendell-Baker v. Kohn, 457 U.S. 830, 840 (1982). However, all actions 
taken by OCR must comport with First Amendment principles, even in 
cases involving private schools that are not directly subject to the 
First Amendment.
    96. See, e.g., George Mason University, OCR Case No. 03-94-2086 
(law professor's use of a racially derogatory word, as part of an 
instructional hypothetical regarding verbal torts, did not constitute 
racial harassment); Portland School Dist. 1J, OCR Case No. 10-94-1117 
(reading teacher's choice to substitute a less offensive term for a 
racial slur when reading an historical novel aloud in class constituted 
an academic decision on presentation of curriculum, not racial 
harassment).
    97. See Iota Xi Chapter of Sigma Chi Fraternity v. George Mason 
University, 993 F.2d 386 (4th Cir. 1993) (fraternity skit in which 
white male student dressed as an offensive caricature of a black female 
constituted student expression).
    98. See Florida Agricultural and Mechanical University, OCR Case 
No. 04-92-2054 (no discrimination in case in which campus newspaper, 
which welcomed individual opinions of all sorts, printed article 
expressing one student's viewpoint on white students on campus).
    99. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 
506 (1969) (neither students nor teachers shed their constitutional 
rights to freedom of expression at the schoolhouse gates); Cf. Cohen v. 
San Bernardino Valley College, (college professor could not be punished 
for his longstanding teaching methods, which included discussion of 
controversial subjects such as obscenity and consensual sex with 
children, under an unconstitutionally vague sexual harassment policy); 
George Mason University, OCR Case No. 03-94-2086 (law professor's use 
of a racially derogatory word, as part of an instructional hypothetical 
regarding verbal torts, did not constitute racial harassment).
    100. See, e.g., University of Illinois, OCR Case No. 05-94-2104 
(fact that university's use of Native American symbols was offensive to 
some Native American students and employees was not dispositive, in and 
of itself, in assessing a racially hostile environment claim under 
Title VI).
    101. See Vinson, 477 U.S. at 67 (the ``mere utterance of an ethnic 
or racial epithet which engenders offensive feelings in an employee'' 
would not affect the conditions of employment to a sufficient degree to 
violate Title VII), quoting Henson, 682 F.2d at 904; cf. R.A.V. v. City 
of St. Paul, 505 U.S. 377, 389 (1992) (citing with approval EEOC's 
sexual harassment guidelines).
    102. Compare Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 
685 (1986) (Court upheld discipline of high school student for making 
lewd speech to student assembly, noting that ``[t]he undoubted freedom 
to advocate unpopular and controversial issues in schools and 
classrooms must be balanced against the society's countervailing 
interest in teaching students the boundaries of socially appropriate 
behavior.''), with Iota XI 993 F.2d 386 (holding that, notwithstanding 
a university's mission to create a culturally diverse learning 
environment and its substantial interest in maintaining a campus free 
of discrimination, it could not punish students who engaged in an 
offensive skit with racist and sexist overtones).

[FR Doc. 97-6373 Filed 3-12-97; 8:45 am]
BILLING CODE 4000-01-P