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May 2, 2014

Title IX and Sexual Violence: 7 Things Every School Needs to Know About The Department of Education’s New Guidance

It is well known that Title IX of the Education Amendments of 1972 (“Title IX”) prohibits gender-based discrimination in federally-funded education programs and activities. This expressly includes prohibiting sexual harassment and sexual violence. The US Department of Education’s Office for Civil Rights (“OCR”) has issued a litany of guidance on schools’ responsibilities under Title IX to respond to allegations of sexual harassment, but recently, the OCR determined that schools would benefit from additional guidance concerning their Title IX obligations to address sexual violence as a form of sexual harassment. As a result, on April 29, 2014, the OCR released “Questions and Answers on Title IX and Sexual Violence.” This document provides new details on schools’ obligations to learn of, investigate, and respond to allegations of sexual violence, and in doing so clarifies, and in some cases creates, requirements that schools relying on earlier guidance may not be aware of.

These new/clarified OCR requirements come at a time when the federal government is paying particularly close attention to schools’ Title IX compliance. On May 1, 2014, the US Department of Education (“DOE”) released for the first time a list of higher education institutes that currently have open Title IX sexual violence investigations. It also committed to regularly updating the list and continuing to make it publicly available “to bring more transparency to the federal government’s enforcement activities.”

Given these recent developments, it is more important than ever for federally-funded schools to understand their obligations under Title IX, especially under the OCR’s new guidance, and strictly comply with them to avoid the significant costs of Title IX litigation, not to mention the embarrassment and stigma associated with appearing on the now-public DOE list. In this article I address seven aspects of the OCR’s new guidance that federally-funded education institutes might not know about but must now understand and follow.

1. Even a single, isolated incident of sexual violence can create a hostile environment that violates Title IX.

A federally-funded school violates Title IX where student-on-student sexual violence creates a “hostile environment.” In its 2001 guidance, the OCR identified eight factors that govern whether a “hostile environment” has been created. Since then, two of those factors have emerged as the most critical: the severity of the conduct (i.e., the type and duration of conduct, and the degree to which it affected a student’s education) and the frequency of the conduct (i.e., the number of prior or contemporaneous instances). In its new guidance, the OCR makes clear that in determining whether a “hostile environment” exists, a school must evaluate these two critical factors on a sliding scale, meaning the more severe the conduct the less frequency is needed to create a “hostile environment.” The OCR even takes this principle to its logical extreme by explicitly stating that, if it is sufficiently severe, even “a single or isolated incident of sexual violence may create a hostile environment.”

2. A school, itself, will create a “hostile environment,” or exacerbate an existing “hostile environment,” when it fails to act quickly after learning of sexual violence allegations.

The OCR has long made clear that when a school learns of sexual violence it is obligated to investigate the conduct and protect the victim. But a common theme throughout the OCR’s new guidance is that mere action is not enough; the school must also act swiftly. According to the OCR, the school itself will create a “hostile environment,” or exacerbate an existing one, if it delays acting once it learns of allegations of sexual violence. If that happens, the school then becomes responsible for remedying the effects of its failure to act. By way of example, the OCR posits a situation where a school’s delay results in a victim of sexual violence being forced to continue taking classes with the alleged perpetrator. According to the OCR, if the victim’s grades suffer as a result, the school must remedy that effect by permitting the victim to retake the classes without academic or financial penalty. Though the remedy in this hypothetical seems relatively benign, if being forced to see the alleged perpetrator in class every day caused that same victim emotional distress, one can easily imagine the argument being made that the school must pay compensatory damages—which could be substantial—for the portion of that emotional distress that occurred during the school’s delay.

3. A school’s obligation to act can arise even if the school does not have actual notice of sexual violence.

It is clear that a school violates Title IX if it fails to take prompt and effective steps to end sexual violence once it is on notice of such conduct. But what constitutes such “notice”? There is no question that a school’s actual notice of sexual violence—for example, from a student-filed grievance or report, from a social networking site, or if a school employee witnesses the conduct—triggers the school’s duty to act. But the OCR’s new guidance greatly broadens the scope of the notice provision by making clear that, regardless of whether a school actually knows about an act of sexual violence, the notice requirement will be considered satisfied if the sexual violence is widespread, openly practiced, and/or well-known amongst the student or employees such that the school should have known about it. Put another way, if the school would have acquired actual notice of the sexual violence had it made a proper inquiry, the OCR will impute actual notice on the school and hold it responsible for taking all required action.

4. Conflicts of interest render a number of school employees incapable of also serving as Title IX Coordinator, including the school’s General Counsel.

Prior OCR guidance is clear that schools should appoint a Title IX Coordinator whose core responsibility is to oversee the school’s responses to Title IX reports and complaints. And though Title IX does not categorically preclude any specific school employees from serving as Title IX Coordinator, the OCR’s new guidance warns that schools must not appoint any existing employee whose job responsibilities could create a conflict of interest. Most notably, the OCR warns against appointing the school’s General Counsel as Title IX Coordinator because some Title IX complaints inevitably question whether the school met its Title IX obligations, thereby creating a conflict of interest for the General Counsel, who would be responsible for representing the school in any legal claims alleging Title IX violations. The OCR also suggests naming an Athletic Director, Dean of Students, or any employee who serves on a judicial/hearing board as Title IX Coordinator would likewise create a conflict of interest.

5. In certain situations, a school is required to override a victim’s request for confidentiality to comply with its Title IX obligations.

Although the OCR is clear that it strongly supports a student’s interest in confidentiality in cases involving sexual violence, its new guidance recognizes that there are circumstances where the school must override a student’s confidentiality request in order to meet its Title IX obligation to provide a safe and nondiscriminatory environment for all students. There are a number of factors that a school must weigh when determining whether to grant a student’s request for confidentiality, but according to the OCR’s new guidance the key factor for overriding a confidentiality request is where there is an increased risk that the alleged perpetrator will commit additional acts of sexual violence. For example, if the alleged perpetrator has committed one or more prior acts of sexual violence, the OCR instructs schools that the balance of factors would compel the school to fully investigate and, if appropriate, pursue disciplinary action to protect all students even if doing so requires disclosure of the identity of a victim who requested confidentiality. When overriding a victim’s request for confidentiality, the OCR recommends that the school take great care to inform the victim of its decision, explain that honoring the request for confidentiality would limit its ability to respond fully to the incident, and take whatever interim measures are necessary to protect him/her.

6. Most acts of sexual violence that occur off-campus must still be addressed by the school.

Title IX requires a school to process all complaints of sexual violence to determine if the violence occurred in the context of an education program or activity. This applies equally to alleged on-campus and off-campus conduct. If the school determines that off-campus sexual violence occurred in the context of an education program or activity, it must treat the complaint in the same manner as if it had occurred on-campus. The OCR’s new guidance helps schools make this determination by identifying a number of off-campus activities that clearly qualify as within the context of an education program or activities, including those that take place: at school-recognized fraternities and sororities, during school-sponsored field trips, during athletic team travel, or as part of a school club. If the school determines that an allegation of off-campus sexual violence did not occur in the context of an education program or activity, it must still assess whether there are any continuing effects on-campus (or in an off-campus education program or activity) that create a “hostile environment.” If so, the school must address that “hostile environment” in the same manner in which it would had it been created by on-campus conduct.

7. Even before a school completes its investigation, Title IX requires it to take interim measures to minimize the burden on the victim.

The new OCR guidance specifically requires schools to take the following interim actions before it completes its investigation: (i) notify the complainant of his/her option to avoid contact with the alleged perpetrator; (ii) allow the complainant to change his/her academic and extracurricular activities, living arrangements, transportation, dining schedule, and working situation; (iii) ensure that the complainant is fully aware of his/her Title IX rights; and, (iv) provide the complaint with resources such as victim advocacy, academic support, counseling, mental health services, and legal assistance (if the school does not offer these services, the OCR recommends that it enter into a Memorandum of Understanding with a local victim services center). The school must take these steps promptly, once it is on notice of the sexual violence allegation, and should periodically update the complainant on the status of the investigation.


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