Letter to Harvard Law School offers guidance on Title IX compliance

Title IX Requires a Prompt and Equitable Response to Complaints.

As Harvard College and Harvard Law School continue working to establish a uniform and compliant Title IX policy, the letter in which the Department of Education Office of Civil Rights (OCR) laid out its reasons for concluding that the Law School had violated Title IX, is instructive for institutions seeking Title IX compliance—as well as for students looking to determine whether their own rights have been violated.

Title IX’s implementing regulation provides that no person shall, on the basis of sex, be excluded from participation in, or be denied the benefits of, or be subjected to discrimination under any education program or activity. 34 C.F.R. §106.31(a)

Sexual harassment is unwelcome conduct of a sexual nature.  Sexual harassment can include unwelcome sexual advances; requests for sexual favors; and other verbal, nonverbal, or physical conduct of a sexual nature, such as sexual assault or acts of sexual violence.

(Resolution Letter)

Courts have determined that sexual harassment is one way that a student can, on the basis of sex, be excluded from participating in, denied the benefits of, or subjected to discrimination under an education program/activity. As such, when any type of sexual harassment creates a hostile environment in an academic institution that receives federal funds, it is prohibited by Title IX.

In 2002, students at Harvard Law School filed a complaint alleging discrimination based on sex.  The complaint alleged that the Law School’s policies and procedures did not provide for the prompt and equitable resolution of sexual harassment complaints, including claims of sexual assault.

In particular, and among others, the students alleged that the Law School had violated Title IX in that it:

  • required victims to choose between filing criminal charges or a Title IX complaint;
  • allowed rehearings that delayed the resolution process; and
  • required students alleging assault or discrimination to prove that it occurred with “clear and convincing” evidence.

In investigating the charge, the OCR framed the issue as “whether the Law School provided for prompt and equitable responses to complaints of sexual harassment and sexual assault, about which it knew or reasonably should have known, and whether any failure to respond appropriately allowed for the creation and continuation of a sexually hostile environment.

Ultimately, although it rejected some of the charges, the OCR broadly concluded that the Law School had, indeed, violated Title IX:

[T]he Law School failed to comply with the Title IX requirements for the prompt and equitable response to complaints of sexual harassment and sexual assault.

The previous and current sexual harassment policies and procedures used by the Law School do not, as written and as applied in the two sexual assault cases examined by OCR, comply with Title IX’s requirements.

It is worth noting that last month Harvard issued its statement on the results of the sexual conduct climate survey which found that sixteen percent of Harvard undergraduate senior women said that since beginning college they had experienced sexual penetration or attempted penetration without their consent. (Companion report)

(Image source: The Crimson) The OCR is currently conducting a separate investigation into whether Harvard College, as distinct from the Law School is by its policies in violation of Title IX.

In its Letter discussing its investigation into the Law School, OCR laid out what Title IX requires to ensure a prompt and equitable response.

An institution must take immediate and appropriate action

The OCR Letter makes clear that if an institution knows or reasonably should have known about the sexual harassment occurring, it must take immediate and appropriate action to determine what happened.

The institution has this obligation even if the student did not complain or report the harassment, if the student asked the institution to take no action, or if the student did not refer to what occurred as discrimination per se.

If the investigation reveals that discrimination/harassment took place, then the institution has a duty to take “prompt and effective steps reasonably calculated to end the harassment.”

These steps can include:

  • requiring that the perpetrator stay away from the complainant until both parties graduate,
  • prohibiting the perpetrator from attending school for a period of time, or
  • transferring the perpetrator to another residence hall, other classes, or another school.

Additional steps the [school] may take to eliminate the hostile environment include counseling and academic support services for the complainant and other affected students.

But it’s not enough just to put a stop to the single discriminatory act — the institution must also fix any hostile environment and undo any negative effects of the discrimination.

An institution must adopt and publish grievance procedures

The OCR stated that to ensure Title IX compliance, an academic institution must adopt and publish a policy that lays out a procedure to quickly and fairly resolve complaints of sexual discrimination.

The policy should be “written in language that is easily understood, should be easily located, and should be widely distributed.”

In evaluating whether the school’s grievance procedures are prompt and equitable, OCR stated that it takes into account the presence of:

  1. notice to students and employees of the procedures, including where complaints may be filed;
  2. application of the procedures to complaints alleging discrimination or harassment carried out by employees, students, and third parties;
  3. provision for adequate, reliable, and impartial investigation of complaints, including an opportunity for both the complainant and respondent to present witnesses and other evidence;
  4. designated and reasonably prompt timeframes for major stages of the complaint process;
  5. written notice to parties of the outcome of the complaint and any appeal; and
  6. an assurance that the institution will take steps to prevent recurrence of any sex discrimination or harassment found to have occurred, and to correct its discriminatory effects on the complainant and others if appropriate.

The institution’s policy must also include, in writing:

  1. a statement of the [school’s] jurisdiction over Title IX complaints;
  2. adequate definitions of sexual harassment (which includes sexual assault) and an explanation as to when such conduct creates a hostile environment;
  3. reporting policies and protocols, including provisions for confidential reporting;
  4. identification of the employee or employees responsible for evaluating requests for confidentiality;
  5. notice that Title IX prohibits retaliation;
  6. notice of a student’s right to file a criminal complaint and a Title IX complaint simultaneously;
  7. notice of available interim measures that may be taken to protect the student in the educational setting;
  8. the evidentiary standard that must be used (preponderance of the evidence) in resolving a complaint;
  9. notice of potential remedies for students;
  10. notice of potential sanctions against perpetrators; and
  11. sources of counseling, advocacy and support.

An institution must inform the complainant of the outcome of its investigation and must take steps to prevent retaliation

The OCR letter makes clear that an institution must provide the complainant details of the investigation’s outcome:

For Title IX purposes, a [school] must inform the complainant as to whether or not it found that the alleged conduct occurred, any individual remedies offered or provided to the complainant or any sanctions imposed on the perpetrator that directly relate to the complainant, and other steps the [school] has taken to eliminate the hostile environment, if the [school] finds one to exist, and prevent recurrence.

The institution must take reasonable steps to prevent and investigate any retaliation stemming from the complaint/investigation:

Prohibited retaliatory acts include intimidation, threats, coercion, or discrimination against any such individual. [A school] should also take steps to prevent any retaliation against a student who makes a complaint or any student who provides information regarding the complaint and take strong responsive action when it occurs.

When [a school] knows or reasonably should know of possible retaliation by other students or third parties, it must take immediate and appropriate steps to investigate or otherwise determine what occurred.

At a minimum, under Title IX, [a school] must ensure that students and their parents, if appropriate, know how to report any subsequent problems; should follow up with complainants to determine whether any retaliation or new incidents of harassment have occurred; and should respond promptly and appropriately to address continuing or new problems.

An institution must provide non-punitive means for the complainant to avoid contact with the alleged perpetrator and must permit “equal opportunity” for the complainant to participate in the resolution process

In the Letter, the OCR makes clear that an institution must enable a complainant to avoid contact with the alleged perpetrator:

[The school] should notify the complainant of his or her options to avoid contact with the alleged perpetrator, and allow students to change academic or living, transportation, dining and working situations as appropriate.

For instance, [a school] may prohibit the alleged perpetrator from having contact with the complainant pending the results of the investigation.

The OCR also makes clear that any steps that the institution takes to separate the complainant and the alleged perpetrator must not be burdensome to the complainant.

When taking steps to separate the complainant and the alleged perpetrator, [the school] should minimize the burden on the complainant and thus should not, as a matter of course, remove the complainant from classes or housing while allowing the alleged perpetrator to remain.

If an accused student is found responsible and [the school] determines that he/she must be separated from the complainant, it must do so in a manner that minimizes the burden on the complainant.

An Institution must provide adequate training

Finally, an institution has an obligation to ensure that its staff is properly trained on how to respond to and handle complaints of discrimination.

Training for employees should include practical information about

  • how to prevent and identify sexual assault/violence, including same-sex sexual assault/violence;
  • the behaviors that may lead to and result in sexual assault/violence;
  • the attitudes of bystanders that may allow conduct to continue;
  • the potential for revictimization by responders and its effect on students;
  • appropriate methods for responding to a student who may have experienced sexual assault/violence, including the use of nonjudgmental language;
  • the impact of trauma on victims; and, as applicable,
  • the person(s) to whom such misconduct must be reported.