OCR Issues Guidance on Sexual Violence in Primary, Secondary, and Postsecondary Schools

On April 4, 2011, the U.S. Department of Education’s Office for Civil Rights issued a Dear Colleague Letter addressing sexual violence in schools.  According to the Letter, the requirements of Title IX of the Education Amendments of 1972, which prohibits sex discrimination in federally funded education programs and activities, cover sexual violence.  OCR considers sexual violence to be a form of sexual harassment.  In the Letter, OCR reminds schools of their responsibilities to take immediate and effective steps to prevent and respond to sexual violence, defined as “physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent” due to use of drugs or alcohol or because of an intellectual or other disability.  Examples of sexual violence include rape, sexual assault, sexual battery and sexual coercion.

The Letter supplements OCR’s Revised Sexual Harassment Guidance issued in 2001 by providing additional guidance regarding sexual harassment and practical examples regarding application of these guidelines to sexual violence.  Highlights include that:

• A law enforcement investigation does not relieve a school of its obligation to conduct an investigation.  While a law enforcement investigation of allegations of sexual violence may be useful for fact-gathering, the results of such an investigation are not determinative of whether conduct that violates Title IX or a school’s non-discrimination policy occurred.  Among other things, a school is obliged to use a “preponderance of the evidence” standard in making such determinations rather than the heightened standard applicable in a criminal proceeding.
• A school should not wait for the conclusion of a criminal investigation or proceeding to begin its own investigation.  Schools must take immediate steps to protect the alleged victim in the educational setting (e.g., offering an escort to classes, tutoring and schedule changes).  However, a school may delay the fact-finding portion of an investigation so as not to interfere with a criminal investigation, if necessary.
• A school may have an obligation to investigate allegations of sexual violence that occurred off  school grounds and/or outside the context of the school’s educational programs and activities because students often experience the effects of off-campus sexual violence in the educational setting.
• A school must disseminate a non-discrimination policy that prohibits sex discrimination, designate a Title IX Coordinator and adopt and publish grievance procedures that provide for “prompt and equitable” resolution of student and employee sex discrimination complaints.  In addition, a school must advise an alleged victim of sexual violence of his or her right to file a grievance under the school’s grievance procedure.  Under this procedure, victims and perpetrators must have equal opportunity to present witnesses and other evidence during the course of these proceedings and the same rights of appeal.  The procedure should also specify time frames for all “major stages” of the procedure.
• A school’s Title IX Coordinator and other personnel likely to be involved in an investigation must be trained or have experience in handling complaints of sexual violence in the educational setting, including how to implement confidentiality requirements.
• Title IX requires (and FERPA permits) a school to disclose to an alleged victim of sexual violence the outcome of a disciplinary proceeding against an alleged perpetrator.
• OCR recommends that schools take proactive measures to prevent sexual violence such as offering preventive education programs and comprehensive victim services.

Schools should take this opportunity to review their non-discrimination and grievance policies and procedures, as well as their memoranda of understanding with local law enforcement officials, to ensure they comply with the requirements of Title IX.  Moreover, schools should ensure that their Title IX Coordinator and other relevant personnel are adequately trained to investigate and resolve complaints of sexual harassment, including those involving sexual violence.