IT’S BEYOND ATHLETICS:
New Efforts to Push the Frontiers of Title IX
Liability for Sexual Misconduct
June 26–29, 2011
Amy C. Foerster1
Saul Ewing LLP
Harrisburg, Pennsylvania
Gloria A. Hage
Eastern Michigan University
Ypsilanti, Michigan
I.
Introduction and Relevant Background
It’s no news that institutions of higher education are exposed to liability on both the
administrative and litigation fronts when faced with allegations of sexual misconduct. What is
making news, however, is the expression of that misconduct,2 the effects of that misconduct,3
and the need for a roadmap to address that misconduct.4 Also making headlines is the United
States Department of Education’s Office for Civil Rights (“OCR”) for its complaint
investigations and administrative enforcement actions,5 and, most recently, its April 4, 2011,
Dear Colleague Letter on Sexual Violence (the “2011 DCL”).6
Although colleges and universities are not able to predict when or where the next instance
of sexual misconduct will occur, what form it will take, or who will be involved, they can
prepare themselves to react quickly and appropriately when they receive reports of sexual
harassment and sexual assault or violence. This preparation and the execution of that plan of
action will help schools protect themselves in the event of an OCR audit or investigation, or a
private lawsuit, and to act in the best interests of the campus at large.
1
Thank you to our session moderator, Robb Jones, Acting President & CEO, United Educators, for his wealth of
insights, resources, and ideas, and to Christine M. Pickel, Saul Ewing LLP, for her assistance in preparing this
manuscript.
2
In 2009, a widely e-mailed “preseason scouting report” rated the desirability of fifty freshman women by the
number of drinks a man would need in order to have sex with them. See
http://www.nytimes.com/2011/04/08/nyregion/08yale.html (last accessed May 3, 2011).
3
See McGrath v. Dominican Coll. of Blauvelt, N.Y., No. 07-cv-11279 (S.D.N.Y.) (decedent committed suicide
following her gang rape on campus).
4
See Stefanowicz v. Bucknell Univ., No. 10-cv-2040 (M.D. Pa. October 5, 2010) (denying plaintiff’s motion for
preliminary injunction, the court refused to refashion the University’s disciplinary policies).
5
See http://www2.ed.gov/about/offices/list/ocr/docs/investigations/15096001.html (Notre Dame College) and
http://www2.ed.gov/about/offices/list/ocr/docs/investigations/15096002.html (Eastern Michigan University) (last
accessed May 3, 2011).
6
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf (last accessed May 3, 2011).
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A quick refresher of Title IX is appropriate. Title IX provides: “No person in the United
States shall, on the basis of sex, be excluded from participation in, be denied benefits of, or be
subjected to discrimination under any education program or activity receiving Federal financial
assistance.”7 The underlying principle of Title IX as it relates to sexual misconduct is basic –
sexual harassment is a form of discrimination. Sexual harassment may interfere with a student’s
physical well-being, emotional well-being, and academic performance. Colleges and universities
receiving federal funds bear an affirmative duty to ensure that no student (male or female) is
deprived of an educational opportunity or benefit due to such discrimination.
II.
Administrative Exposure and OCR
With its investigations popping up on campuses across the country, coupled with its
issuance of the lengthy 2011 DCL, OCR has clearly determined that Title IX enforcement will
play a prominent role on the higher education landscape in the coming years.
What isn’t clear is to what extent that landscape has really changed …
For example, throughout the 2011 DCL, OCR discusses the things institutions “must” do
(41 times), “should” do (71 times), and “may” do (46 times). It also “recommends” certain actions
(17 times). At first blush, therefore, the 2011 DCL would seem to mandate several changes. But
the 2011 DCL is a “significant guidance document” rooted in existing law and regulation.8 In other
words, OCR necessarily has to – and has – taken the position that the 2011 DCL clarifies existing
requirements as set for the in its earlier 2001 Guidance,9 but does not impose further obligations.
A.
Basic Title IX Responsibilities
All institutions of higher education must maintain a policy against sex discrimination,
appoint a Title IX compliance coordinator, and adopt and publish grievance procedures for the
prompt and equitable resolution of complaints of sexual discrimination.10 When assessing
whether an institution has fulfilled its obligations under Title IX, OCR’s litmus test is whether
the school recognized that sexual harassment occurred and took prompt and effective action to
end the harassment, prevent its recurrence, and remedy its effects.11
7
20 U.S.C. § 1681(a).
8
See 2011 DCL, p. 1, n.1.
9
Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third
Parties (January 2001) at http://www2.ed.gov/about/offices/list/ocr/docs/shguide.html (last accessed May 4,
2011) (“2001 Guidance”).
10
24 C.F.R. §§ 106.8-106.9.
11
See the 2001 Guidance at page 15, providing: “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 prompt and effective steps reasonably
calculated to end any 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 … [I]n 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.”
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B.
Specific Responsibilities
1.
Step 1: Addressing Sexual Harassment
In its 2011 DCL, OCR relies upon the same definition of “sexual harassment” that it used
in its 2001 Guidance: “Sexual harassment is unwelcome conduct of a sexual nature. It includes
unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical
conduct of a sexual nature.” In 2011, however, OCR is clearly placing an emphasis on sexual
violence, adding that “[s]exual violence is a form of sexual harassment”12 to its 2001 definition
of sexual harassment and, in fact, has entitled its 2011 DCL “Sexual Violence.”
Interestingly, OCR defines sexual violence to include rape, sexual assault, sexual battery,
and sexual coercion.13 The addition of sexual coercion without any definition or explanation of
its scope has raised several eyebrows in the higher education community. What is sexual
coercion? It’s fairly clear that it could involve drugs or alcohol, but taken to its extreme, does it
include trickery? Charm?
The 2011 DCL has also raised some questions regarding who it seeks to protect. As with
the 2001 Guidance, the 2011 DCL stresses that Title IX protects students and employees. It adds,
however, that “Title IX also protects third parties from sexual harassment or violence in a
school’s education programs and activities.”14 Again, an obvious conclusion may be that Title IX
protects high school students visiting the campus for a week-long summer camp. The 2011 DCL
does not specifically limit the definition in that manner, however, and the population of “third
parties” participating in a school’s “activities” could conceivably include any visitor to campus.
Historically, OCR has identified six elements of a school’s grievance procedure “critical
to achieve compliance with Title IX,” as follows:
 Notice to students … and employees of the grievance procedures, including where
complaints may be filed;
 Application of the procedures to complaints alleging harassment carried out by
employees, other students or third parties;
 Adequate, reliable, and impartial investigation of complaints, including the opportunity
for both parties to present witnesses and other evidence;
 Designated and reasonably prompt time frames for the major stages of the complaint
process;
 Notice to parties of the outcome of the complaint; and
 An assurance that the school will take steps to prevent recurrence of any harassment and to
correct its discriminatory effects on the complainant and others, if appropriate.15
12
2011 DCL, p. 1.
13
2011 DCL, p. 1-2.
14
2011 DCL, p. 4, n.11 (emphasis added).
15
2011 DCL, p. 9.
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In its 2011 DCL, OCR focused on four elements regarding which it determined “more
clarification and explanation are needed,”16 as follows:
a.
Notice of the Grievance Procedures
With regard to notice, OCR reiterates its long-standing position that procedures should be
easily understood, easily located, and widely distributed. They should be prominently posted on
the college or university’s website, sent electronically to all members of the campus community,
available throughout campus, and summarized in or attached to major publications.17
b.
Adequate, Reliable, and Impartial Investigation of Complaints
Recognizing the frequent intersection or overlap between on-campus judicial processes
and criminal proceedings, OCR has emphasized a point made in its 2001 Guidance, which is that
police investigations are not determinative of the outcome of a school judicial complaint and do
not relieve a school of its timely obligations. OCR acknowledges that a school may need to
temporarily delay its fact-finding while the police gather evidence, but that delay is specifically
limited to their collection of evidence, and is not extended to their completion of an investigation
or decision to press charges.18
The 2011 DCL talks at length about the relationship of a college or university and local
police. Specifically with regard to MOUs between institutions and local police, OCR notes that
the relationship:
 Must allow the school to meet its Title IX obligations to resolve a complaint promptly
and equitably;
 Should not prevent the school from taking interim steps to ensure the well-being of the
complainant and the school community while law enforcement’s fact gathering is in
progress; and
 Should have clear policies as to when a school will refer a matter to local law enforcement.19
Given the tension that can exist between a college or university campus and local law
enforcement, and the natural power struggle created when two entities are trying to meet their
not-totally-consistent legal obligations, it is difficult to imagine that those parties could enter into
an MOU meeting these requirements.
The 2011 DCL also is very much concerned with parity of rights as to the complainant
and respondent, although its concern in that regard appears more focused on the complainant. On
the parity front, the 2011 DCL requires that:
 Parties must have an equal opportunity to present relevant witnesses and other evidence;
16
2011 DCL, p. 9.
17
2011 DCL, p. 9.
18
2011 DCL, p. 10.
19
2011 DCL, p. 10.
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 Parties must be afforded similar and timely access to any information to be used at the
hearing (consistent with FERPA and other confidentiality issues);
 If one party gets a pre-hearing meeting to tell his or her side, the other party should get
the same;
 If the respondent gets to present character witnesses, so should the complainant;
 The respondent should not be allowed to review the complainant's statement unless the
complainant gets to review the respondent’s;
 If lawyers are allowed to participate, the scope of their permitted involvement must be
the same for both parties; and
 If there is an appeal process, which DOL recommends, it must be available to both parties.20
By way of additional hearing requirements, OCR:
 “Strongly discourages” a school from allowing the parties to question or cross-examine
each other directly;
 Requires that the institution must maintain documentation of all proceedings, which
may include findings of fact, transcripts or audio recordings;21 and
 Demands that schools much use a preponderance of the evidence standard in campus
judicial proceedings.22
With regard to the investigation itself, while OCR recognizes that the circumstances of
each incident will dictate the precise form of the school’s investigation, every investigation must
be prompt, thorough, and, as discussed above, impartial.
By “prompt,” OCR means “immediate.”23 Ideally, there should be virtually no delay
between the report of possible sexual harassment and the commencement of the school’s
investigative procedure. To accomplish this feat, personnel at all levels must understand the
institution’s Title IX reporting procedures. Not all incidents will be reported directly to the Title
IX Coordinator – reports are likely to be made to coaches, professors, deans, and student
residence hall staff. It is essential that the school train each and every person who may receive
such information how, when and to whom to report complaints or suspicions of sexual
misconduct.24 According to OCR, the inaction of a single school employee can jeopardize the
institution’s Title IX compliance and continued receipt of federal funding.
20
2011 DCL, p. 11-12.
21
2011 DCL, p. 12.
22
2011 DCL, p. 11.
23
2011 DCL, p. 4 (“Title IX requires the school to take immediate action to eliminate the harassment, prevent its
recurrence, and address its effects.”).
24
2011 DCL, p. 4 (“[S]chools need to ensure that their employees are trained so that they know to report harassment
to appropriate school officials, and so that employees with authority to address harassment know how to respond
properly. Training for employees should include practical information about how to identify and report sexual
harassment and violence.”).
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Moreover, a school’s grievance procedures must advise students of the timeline for
completion of all major phases of the investigation and resolution of complaints of sexual
harassment. OCR estimates that a “typical investigation takes approximately 60 calendar days
following receipt of the complaint.”25
OCR also advises schools to take appropriate interim measures while the investigation is
pending. Once again, the propriety of the school’s response depends upon the nature of the
harassment. Examples of interim measures may include allowing the complainant to transfer
classes, reassigning housing arrangements, and/or informing local law enforcement.26
Once the school has completed its investigation (including hearing, if appropriate), it
must notify both parties of the outcome in writing.27 OCR recommends that the notification to
the parties be concurrent. Disclosure of the outcome to the harassed student should include the
sanctions that directly relate to the harassed student. If the conduct in question involves a crime
of violence or a non-forcible sex offense, however, the institution may disclose the results to the
campus community. Note that OCR has emphasized that under the Clery Act, an institution may
not require a complainant to abide by a nondisclosure agreement.
2.
Step 2: End the Harassment and Prevent Further Harassment
OCR directs schools, upon a determination that sexual harassment has occurred, to “take
reasonable, timely, age-appropriate, and effective corrective action, including steps tailored to the
specific situation, … to end the harassment.” Not surprisingly, OCR demands that any action by
the institution minimize the burden on the victim of the harassment. Responsive actions might
include a no-contact order, reassignment of housing, discipline for the harasser, counseling for the
harassed, and additional training for the campus at large. Schools should also ensure that students
know how to report incidents of sexual misconduct and conduct follow-up inquiries with the
harassed student to ensure that offending conduct ceased and that no retaliation has occurred.28
OCR’s primary recommended tool for sexual violence prevention is education. OCR
suggests that schools educate students as to the definition of sexual harassment and the school’s
policies and procedures for addressing it. Schools should also be careful to specify that students
should report incidents regardless of whether alcohol or drugs were involved. OCR expects
schools to develop and disseminate written materials on these topics.29
3.
Remedy the Effects of the Misconduct
Institutions of higher education will need to demonstrate not only that they investigated and
ended incidents of harassment, but also that they acted in a remedial manner with respect to the
victimized student and the institution at large.30 Any remedy, by definition, will be informed by the
25
2011 DCL, p. 12.
26
2001 DCL, p. 16.
27
2011 DCL, p. 13.
28
2011 DCL, p. 16.
29
2011 DCL, p. 14-15.
30
See 2011 DCL, p. 15-19.
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specific circumstances. OCR has identified a variety of potential remedial actions that schools may
consider, such as: allowing the student to re-take or withdraw from a class without penalty;
reassigning on-campus living arrangements; providing counseling services; and ensuring that the
incident does not negatively impact the academic record of the harassed student. OCR suggests
that “[r]emedies for the broader student population might include” the following examples:
 Offering counseling, health, mental health or other victim services to all students
affected by sexual harassment;
 Training the Title IX coordinator and other employees who are involved in the
processing, investigating, or resolving of sexual harassment complaints as to how to
conduct Title IX investigations;
 Training school law enforcement on the school’s Title IX policies and procedures; and
 Training all employees who interact with students regularly on recognizing and
appropriately addressing allegations of sexual harassment or violence under Title IX.31
Of course, much of the above training is already required not as a remedial action, but to
ensure that the institution has proper investigative processes in place.
C.
Recent OCR Investigations and Voluntary Agreements
In its latest “Dear Colleague” letter, OCR explicitly states: “When OCR finds that a
school has not taken prompt and effective steps to respond to sexual harassment or violence,
OCR will seek appropriate remedies for both the complainant and the broader student
population. When conducting Title IX enforcement activities, OCR seeks to obtain voluntary
compliance from recipients.”32 Consistent with this policy of “voluntary compliance,” OCR
recently entered into negotiated resolutions with two schools found to be not compliant with their
Title IX obligations. In doing so, the schools agreed to:
 Revise and publish a Title IX grievance procedure concerning complaints of sexual
harassment and sexual violence;
 Designate a Title IX coordinator to oversee efforts to comply with Title IX;
 Ensure that the Title IX coordinator, and any other officials involved in processing
complaints of sexual harassment, receives appropriate training from the school and
OCR on Title IX, how to investigate complaints of sexual harassment and sexual
violence, and the link between alcohol abuse and sexual harassment/sexual violence;
 Provide, with OCR, similar training on Title IX to administrators, professors, instructors,
residential assistants, coaches, and other staff who interact with students on a regular basis;
 Develop an ongoing Title IX training program for faculty and staff;
 Develop material concerning sexual harassment and sexual violence for distribution to
students;
31
2011 DCL, p. 16-17.
32
2011 DCL, p. 16.
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 Create a campus focus group consisting of leaders from the student community and
officials to provide input regarding strategies for ensuring that students understand their
rights under Title IX;
 Host informational sessions for students regarding Title IX sexual harassment;
 Revise existing freshman orientation programs and returning student orientation
programs to include topics covering: how to recognize sexual harassment, the connection
between alcohol abuse and sexual harassment and sexual assault, students’ ability to
speak with a University counselor if they are concerned about issues of sexual
harassment, and the University’s updated grievance procedures for Title IX complaints;
 Develop procedures for an “on call” contact for victims of sexual assault;
 Report to OCR the number of sexual harassment complaints received and how they
were handled;
 Conduct periodic climate checks with students to assess the effectiveness of these steps
to ensure a campus free of sexual harassment and sexual violence; and
 Coordinate with local law enforcement to ensure that in instances where a complaint
involves conduct of a criminal nature, the school will be able to meet its obligation
under Title IX to promptly investigate complaints of sexual harassment and sexual
violence and to take appropriate interim steps to ensure the safety of victims and the
campus community.33
These agreements generally track OCR’s 2011 DCL which, over the course of several
pages, outlines the remedies it expects schools to implement with respect to both the
complaining individual and the entire student body.34
D.
Hallmarks of Proper Sexual Harassment Policies
OCR has provided guidance as to the key characteristics of solid sexual harassment
policies. In short, good policies and grievance procedures:
 Provide notice of grievance procedures;
 Provide the contact name, address and phone number for the person responsible for
receiving complaints of harassment;
 Apply to harassment by employees, students, and third parties;
 Set forth an investigative process that is adequate, reliable, impartial and includes the
opportunity to present evidence by all parties;
 Specify a reasonably prompt timeline for handling complaints;
 Require notice to parties of the outcome of the investigation;
33
The agreements are available at http://www2.ed.gov/about/offices/list/ocr/docs/investigations/index.html (last
accessed May 4, 2011).
34
2011 DCL, p. 15-19.
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 Are designed to prevent recurrence and remedy effects of the harassment;
 Include an appeals process;
 State that retaliation violates Title IX;
 Consider state and local requirements;
 Are easily understood;
 Are widely disseminated; and
 Designate at least one person as the Title IX Coordinator.35
III.
A Note on Cyber-Harassment
As institutions have been dealing with sexual harassment “on the ground,” OCR has
recently recognized that sexual harassment may occur in cyber-space as well. OCR has indicated
that the same guidelines apply to sexual harassment over cell phones or the internet, and that a
school must investigate, end the harassment and prevent future harassment.36 Additionally, in its
2011 DCL, OCR stated:
Schools may have an obligation to respond to student-on-student sexual
harassment that initially occurred off school grounds, outside a school’s education
program or activity. If a student files a complaint with the school, regardless of
where the conduct occurred, the school must process the complaint in accordance
with its established procedures. Because students often experience the continuing
effects of off-campus sexual harassment in the educational setting, schools should
consider the effects of the off-campus conduct when evaluating whether there is a
hostile environment on campus.37
Although this language appears in the context of a discussion of a sexual assault at a
geographic location other than campus, it is easy to imagine similar language applied to cyberharassment. OCR has not clarified how a school should respond to sexual harassment via an offcampus website which it does not control (such as an anonymous blog). For example, while a
school may be able to investigate a complaint of sexual harassment under such circumstances, or
even take disciplinary action against the accused, it may not be able to prevent further sexual
harassment on its campus if it does not control the website where the offending material is posted.
IV.
Civil Litigation Exposure
In addition to increased administrative obligations – or maybe because of that increased
administrative attention – schools are finding themselves more frequently subject to private causes
of action under Title IX as well. Case law provides the standard by which schools will be judged:
For an educational facility to be liable, however, the plaintiff must establish that a
school official with “authority to address the alleged discrimination and to
35
2001 Guidance, p. 20-21.
36
United States Department of Education, Office for Civil Rights Letter dated Oct. 26, 2010, p. 2-3.
37
2011 DCL, p. 4.
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institute corrective measures” had “actual knowledge” of the discrimination and
failed to adequately respond … A school fails to adequately respond if it provides
no response or if it provides a response that “amount[s] to deliberate indifference
to discrimination. …” The school’s response to sex discrimination must be
“clearly unreasonable” in light of the known circumstances.
Papelino v. Albany College of Pharmacy, 633 F.3d 81, 89 (2d Cir. 2010) (internal citations
omitted) (quoting Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998); Davis v.
Monroe County Bd. of Educ., 526 U.S. 629, 648 (1999)).
Although the standard for civil liability is different from OCR’s litmus test, a school that
complies with OCR’s requirements is more likely to weather a lawsuit successfully. For
example, the Eastern District of California granted summary judgment in favor of the defendant
school and found that it had not acted with deliberate indifference where it followed its sexual
harassment grievance procedures and (1) promptly investigated the claim of sexual assault; (2)
provided counseling services to plaintiff; (3) encouraged plaintiff to file criminal charges; (4)
expelled and suspended the accused students (after a hearing); and (5) offered to accommodate
plaintiff in any way to make transition back to school smooth.38
Similarly, in Stefanowicz v. Bucknell University, No. 10-cv-2040, 2010 WL 3938243
(M.D. Pa. Oct. 5, 2010), the school successfully used its sexual harassment policy as a defense
against plaintiff’s Title IX claim. There, the Court refused to grant plaintiff’s request that it
enjoin the university from holding hearings on the plaintiff’s complaint of sexual misconduct and
the cross-claims of the accused. The plaintiff argued that the school’s hearing (to occur during
the pendency of a criminal investigation) would subject her to retaliation by the accused and
perpetuate the hostile environment. However, the Court found that plaintiff had invoked the
school’s sexual harassment policies and procedures, and under Title IX, the school was obligated
to follow its protocol. Moreover, the school’s policy afforded plaintiff certain procedural
protections that mitigated against her claim that the school would be perpetuating the hostile
environment. Thus, the Court determined it was unlikely that the plaintiff would succeed on her
Title IX claim, and denied the requested injunction.
V.
Conclusion
The past year alone has demonstrated that colleges and universities are dealing with a more
activist OCR when it comes to sexual misconduct and, perhaps, a more activist student body.
While the endgame of preventing sexual harassment is clearly a goal shared by all, there is not yet
a consensus as to how we get there or when liability should accrue. What is clear is that institutions
taking a proactive approach, not only showing a swift and effective response to complaints of
harassment, but also educating students and employees as to prevention, will fare best.
38
Doe v. Univ. of the Pacific, No. 2:09-cv-00764 (E.D. Cal. 2010).
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