Compliance Student-on-Student Sexual Violence, 0718 COBJ, Vol. 47, No. 7 Pg. 32

Position:Vol. 47, 7 [Page 32]

47 Colo.Law. 32

Compliance Student-on-Student Sexual Violence

Vol. 47, No. 7 [Page 32]

The Colorado Lawyer

July, 2018


Reverse-discrimination cases under Title IX are becoming more prevalent. This article discusses Title IX compliance in the context of student-on-student sexual violence with a focus on recent case law and Department of Education guidance.

Sexual violence is deeply disturbing. Sexual violence on a school campus is even more distressing, given that an educational environment is intended to be a safe zone where students can learn new skills and gain understanding of the world around them. It is no secret that sexual violence occurs too frequently on college campuses. In fact, in 2015, the Association of American Institutions administered a study at 27 institutions of higher education with more than 150,000 students participating that revealed that 23.1% of female and 5.1% of male undergraduate students experienced some form of nonconsensual sexual contact.1

Sexual harassment, which is defined as unwelcome conduct of a sexual nature, is a form of sex discrimination that is prohibited under U.S.C. Title IX. The U.S. Supreme Court held that an educational institution may be liable for student-on-student harassment under Title IX when the educational institution “acts with deliberate indifference to known acts of harassment in its programs or activities.”2 The U.S. Department of Education’s Office for Civil Rights (OCR) is tasked with enforcing Title IX and investigating schools’ handling of allegations of sexual assault when a complaint is filed directly with OCR or upon compliance review.3 Educational institutions must comply with both procedures set by the judiciary through case law and OCR guidance documents.

The Title IX Framework

In 1972, Congress enacted Title IX of the Education Amendments of 1972, which states in pertinent part: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”4 In conjunction with Title IX, Congress enacted an administrative enforcement scheme in which federal departments or agencies with the authority to provide financial assistance can terminate funding if an educational institution fails to comply with Title IX.[5]

Although Title IX does not expressly reference sexual harassment or sexual assault, courts have interpreted it to prohibit both. In 1986, citing the Equal Employment Opportunity Commission Guidelines and existing case law as support, the Supreme Court recognized that Title VII6 prohibits sexual harassment, which it found to be a form of sex discrimination.7 When addressing sexual harassment in the context of Title IX, the Supreme Court followed its Title VII precedent and, in 1992, held that a teacher who sexually harasses and abuses a student because of the student’s sex discriminates on the basis of sex.8 Subsequently, in 1998, the Supreme Court determined that an educational institution may be liable for the independent acts of a teacher under Title IX when the educational institution has actual notice and is deliberately indifferent to the sexual harassment and abuse by the teacher.9 In 1999, the Supreme Court expanded its precedent in holding that an educational institution may be liable for student-on-student sexual harassment under Title IX, but only where the educational institution “acts with deliberate indifference to known acts of harassment in its programs or activities.”10

Department of Education Office for Civil Rights

The OCR has issued numerous guidance documents in an effort to assist educational institutions in complying with Title IX. This section describes the guidance documents issued by the OCR that relate to student-on-student sexual misconduct.11 The OCR’s requirements for educational institutions continue to evolve, so schools must stay up-to-date with the OCR’s approved preventative and investigative procedures.

In 1997 the OCR issued its first guidance document regarding sexual harassment under Title IX, “Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties” (1997 Guidance). The 1997 Guidance asserted that sexual harassment of students was a form of prohibited sex discrimination under Title IX.[12]

In 2001, following Davis v. Monroe County Board of Education, the OCR issued a second guidance document, “Revised Sexual Harassment: Harassment of Students by School Employees, Other Students, or Third Parties” (2001 Revised Guidance).13 In the 2001 Revised Guidance, the OCR advised educational institutions that to avoid acting with deliberate indifference—as set forth in Davis—the educational institution must “tak[e] prompt and effective action to stop the harassment and prevent its recurrence.”[14] Additionally, the OCR stated that the standard for administrative enforcement of Title IX, and in court cases where plaintiffs are seeking injunctive relief, is “if the school knows or reasonably should know about the harassment.”15 The OCR noted in a footnote that the “knew, or in the existence of reasonable care should have known” standard is “[c]onsistent with its obligation under Title IX to protect students . . . [and] OCR interprets its regulations to ensure that [educational institutions] take reasonable action to address, rather than neglect, reasonably obvious discrimination.”16

In 2004 the OCR issued further guidance, “Title IX Grievance Procedures, Postsecondary Education” (2004 Guidance).17 The 2004 Guidance reminded postsecondary institutions that “the Title IX regulations require recipients to designate a Title IX coordinator, adopt and disseminate a nondiscrimination policy, and put grievance procedures in place to address complaints of discrimination on the basis of sex in educational programs and activities.”[18]

Subsequently, in 2011, the OCR issued what has become known as the “2011 Dear Colleague Letter,”[19] which reiterated the requirements set forth in the 2004 Guidance and stated that the correct evidentiary standard to use in resolving complaints is “preponderance of the evidence” (i.e., it is more likely than not that the sexual harassment or violence occurred).20 With respect to the preponderance of the evidence standard, the OCR reasoned that the “Supreme Court has applied a preponderance of the evidence standard in civil litigation involving discrimination under Title VII” and the “OCR also uses a preponderance of the evidence standard when it resolves complaints against recipients.”[21] Thus, the OCR concluded that the preponderance of the evidence standard should be used in a school’s grievance procedures. Until the 2011 Dear Colleague Letter, no formal regulation or guidance document set forth this evidentiary standard.

In 2014—on the same day that the White House issued “The First Report of the White House Task Force to Protect Students from Sexual Assault”—the OCR issued “Questions and Answers on Title IX and Sexual Violence” (Questions and Answers).22 In the Questions and Answers, the OCR stated that the 2001 Guidance and the 2011 Dear Colleague Letter remained in “full force” and recommended that the guidance documents be read in conjunction with the Questions and Answers.23 The Questions and Answers describe training and preventive measures that educational institutions should take to curtail sexual violence and the “immediate and appropriate steps” educational institutions must take after a complaint is fled.24

In 2017, the OCR formally rescinded the Obama-era guidance on how educational institutions should handle sexual assaults under Title IX.25 The 2017 Dear Colleague Letter stated that the Obama-era guidance “interpreted Title IX to impose new mandates related to the procedures by which educational institutions investigate, adjudicate, and resolve allegations of student-on-student sexual misconduct.”26 The OCR issued interim guidance in the form of Questions and Answers (2017 Questions and Answers).27 The 2017 Questions and Answers include a description of the nature of an educational institution’s responsibility to address sexual misconduct, information about how the Clery Act[28] relates to a school’s obligations under Title IX, and a school’s obligations concerning grievance procedures and investigations.29 The guidance document states that “findings of fact and conclusions should be reached by applying either a preponderance of the evidence standard or a clear and convincing evidence standard.”[30] The 2017 Questions and Answers make clear that existing resolution agreements between OCR and educational institutions are still binding.31 The OCR “intends to engage in rulemaking on the topic of schools’...

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